Islam is a system of universal laws which haven’t been formulated for any specific group of people or for a specific period of time. In its teachings, its focus is on the ‘ natural man”; that is, its attention is centred upon the natural structure of the human being and the conditions of a common individual, whether he is poor or rich, strong or weak, black or white, an Arab or a non-Arab, male or female, old or young, wise or foolish. the “natural man”, is a human being who carries the primordial, God-given nature along with a pure consciousness and a will untainted by illusions or deviations. This is what we call a ‘natural man”. It cannot be denied that the distinguishing characteristic which discerns the human being from other animals, lies in his intellect; whereas other animals do not enjoy this gift of God.
All activities of all living organisms, except the human being, are subservient to the dictates of their instincts. These animal instincts guide and motivate them towards satisfaction of their vital needs.
Human beings are the only animals who, besides the drives motivated by diverse instincts, feelings and emotions-like love and hatred, friendship and enmity, hope and depression-are equipped with the faculty of judgement, which can decide between conflicting emotions and forces and select a right course of action despite obstinate opposition by emotion and passion. Sometimes this faculty decides against an action despite the pressure of instinct and emotion; at other times it recommends an action despite unwillingness of instinct and passion. Yet at other times, when the overall interests of the human being coincide with the demands of instinct and emotion, it ratifies their demand.
The Basis of Islamic Outlook
Since the education and training of every species of beings should be based on cultivation and development of its distinguishing characteristics, Islam has based its teachings on the firm basis of intellectual faculty of man, not on the unstable foundations of feelings and passions. This is the basis of the Islamic invitation composed of certain sublime beliefs, higher morals and practical laws, whose truth and veracity is confirmed by the human being’s primordial nature, in con junction with its God-given intellect free of illusions and deviations.
The “Natural Man”
Man, in the state of pure nature, perceives through his God-given primordial nature that the vast realm of the universe, from the minutest particle to the greatest galaxies with their wonderful system of precise laws, points to its origin from the One God. He clearly perceives that all things have come into existence by His act of creation; their functioning, their working – everything that followed their creation – are of His making.
The “natural man’ perceives that this world of existence, with all its scattered fragments, is itself a huge unified whole in which all parts are interrelated with one another. Everything is linked with other things, and a perfect harmony and unity prevails amongst them.
The human world is just an insignificant fraction of the great cosmos, an insignificant drop in the vast and infinite sea; but it is a phenomenon in whose emergence the whole of universe had a share. It is a product of the whole universe, which is a creation of the Divine Will.
Since the human being is the offspring of the world of creation and he lives and flourishes under its leadership and guidance, it is the system of the creation which, by employing myriad of means that are outside human reach and power, has created the human being in its present form, and has provided it with awareness, perception, faculties of reason, intellectual and emotional capabilities and other external and internal features. Through these means it has guided his consciousness and will towards the goal of his real felicity, his summum bonum.
The human being is the only creature which can distinguish between good and evil, between loss and profit, through its consciousness and free will. He is, therefore, a free being. However, it should not be forgotten that the world of creation is the same as the Will of God of the universe, Who has carved out all those internal and external patterns in man’s being, making him a free being.
The natural man, with his thought and intellect, unmistakably perceives that his felicity, happiness and his true goal in life is the same as the destination determined for him by the world of creation which has created and fostered him. It is the world of creation that directs the human being towards the ultimate goal and purpose which has been determined and ordained for him by the One God, Who has originated all being and existence.
On this basis, the “natural” human being would make the judgement that the only road to his felicity in life lies in aligning his own being with the system of creation, considering himself to be an inseparable part of it. His judgement would be that he can neither afford to neglect his own situation in the perspective of existence, nor can he afford to overlook the duties assigned to him in the book of creation.
The essence of the innumerable duties laid down for him in the book of creation is that the human being should never humble himself and prostrate himself before anything other than the One God, and that all his acts and deeds motivated by his natural emotions and instincts must be performed under the surveillance of reason and on condition of its approval.
Fixed and Variable Laws
Laws are divisible into two distinct kinds:
1. Those laws and regulations that protect vital human interests (taking into consideration the fact that people lead a collective existence, regardless of its specific mode in every region and period).
This class of laws pertains, for example, to a section of beliefs and principles which concretise human devotion and humility towards the Creator (wherein there is no possibility of change and alteration), and those general laws pertaining to the general aspects of human life, such as food, housing, marriage, defence etc., which are a permanent feature of man’s social existence.
2. Those laws and regulations which have a temporal, regional or some other special aspect and change their form with variation in modes of living. This class of laws are subject to variation in accordance with gradual cultural advancements and changes in the social scene, and need revision with abolition of old customs and methods and emergence of new ones. For example, in the days when people used to travel on foot or on horse-back from one point to another, very simple laws were sufficient for the purpose of traffic control. But today with progress in the means of transportation, we are in need of a variety of complex laws for control of marine, land and air traffic.
The primitive man, who had a very simple way of life and only handled simple and primary raw materials, needed simple laws to fulfil his elementary needs of life, like food, clothing and shelter, although he spent most of his waking hours in tedious labour. In the modern world, where life is as fast as electricity, tremendous diversity of jobs and professions has emerged due to the variety of work. This division of work into thousands of professions has resulted in legislation of thousands of regulations, to which several more are added every day.
Islam, which focuses its educative attention on the “natural” human being and which, through its invitation, leads human society towards piety, virtue and purity of belief, action and purpose, bases its programme on this unpolluted purity of the intellect of the “natural” human being. Consequently, it has divided human laws and regulations into two classes: the first class of laws that are fixed, being based on the primordial nature of man and the characteristics peculiar to his species. This class of laws is named “Islamic Shari’ah”. They guide humanity towards the goal of its highest felicity: So set thy face with sincerity to the Religion-God’s nature upon which He originated mankind. There is no changing God’s creation. That is the right religion … (30:30)
Secondly, it should be noted that determination of the second class of laws, which are alterable and can be modulated according to the changing conditions of place and time, has been assigned to the institution of al-wilayahal-‘ammah (general guardianship), and are subject to the opinion of the Prophet of Islam (S), his successors (A), and those appointed by him. These laws and regulations are formulated by al-wilayah, in the light of the permanent religious laws, in accordance with spatial and temporal requirements, and counted as part of the Divine law, the Shari’ah, and are not considered a part of “al-Din”: O believers, obey God, and obey the Messenger, and those in authority among you. (4:59)
This is, in brief, the reply that Islam gives in regard to the question of satisfaction of the real needs of every age. This problem needs a more elaborate explanation and a deeper inquiry. This we shall take up in the next section.
Constant and Variable Laws in Islam
In the previous section we came to know that Islam has divided its laws into two groups: the fixed and the variable laws.
The fixed laws are such as have been formulated with a view to human nature, i.e. the universal human nature, which is common to civilised or uncivilised, white or black, sturdy or weak, persons of every region, and every age. Since all human beings are created with the same human structure, with similar types of internal and external faculties and organs, whenever two or more human beings come in contact with one another and try to co-operate with one another to form a companionship to be distinguished as a social entity, and since they inevitably face the same kinds of problems when they try to solve them with their joint efforts, this commonness of various factors in their makeup and needs necessitates a series of uniform regulations applicable to all individuals in the group.
The faculties of intellectual comprehension are of the same kind in all human beings. Their rational judgements, as long as illusions and superstitions do not intervene in their reasoning, are also similar. Their mental and critical faculties need to be satisfied through a similar kind of testimony. Similarly, various feelings, like love and hatred, hope and fear, needs for food, clothes, shelter and sexual association, exist among all human individuals and need to be gratified in a similar manner for every individual. On account of this common human nature, it cannot be said that the satisfaction of hunger is permissible for one person and prohibited or another. Nor it may be said, while one person must submit to the judgements of his reason, another should completely ignore the dictates of this conscience.
Moreover, it can’t be said that human nature, despite its age-old association with emotions, faculties and consciousness peculiar to it, should dissociate for a period with its consciousness or totally negate it for all time. Can one suggest that mankind should lead collective life in one period and adopt individual living at; other times, or that one should defend himself at one time but surrender unconditionally to his enemies at other times, or that one should engage in work and activity at some times and choose a life of idleness and sloth at other times?
This makes it obvious that human society, by nature, requires a series of fixed and uniform laws.
Through its religious message, Islam has endeavoured to convey nothing but this point. It says that nothing except a series of such laws and regulations as are in conformity with the general system of creation and the particular makeup of mankind, can fulfil the vital needs of human existence.
It asks man to turn to his God-given conscience and consciousness, to prevent every kind of sensuality, caprice, impropriety and waywardness from influencing his judgements, and follow whatever has been determined to be right and truthful. We should neither label the following of a series of truths as “imitation”, nor should we imitate our ancestors blindly in the name of “national pride” or “age-old national customs and traditions”.
We should neither label godliness and realisation of truth as “conservatism,” nor surrender ourselves to a group of sensualists in power, becoming the instrument of their whims, and, as a result, sell ourselves into the worship of hundreds of man-made “gods”. “Islam” (lit. submission) is the name of this religion, basically because it invites man to the sole worship of the One Creator of the universe and calls for his submission to the truth. This invitation, in its elaborate form, consists of a series of beliefs, morals and laws, put forth as fixed obligatory duties before mankind.
It may be pointed out that the elements of all the three aspects of religion-that is belief, morals and laws-are perfectly interrelated with one another as well as with the great system of creation. However, an elaborate discussion of these wonderful interrelationships and the perfect harmony, coherence and unity between various aspects of Islamic teachings is outside the scope of our present discussion. Here our main aim is to prove that Islam possesses a series of fixed laws.
Alterable Laws in Islam
Just as human beings require a series of fixed and constant laws for the purpose of regulating their permanent and homogeneous natural needs, in the same way they also require a number of changeable and variable laws without which human societies cannot carry on their stable existence. Evidently, while the “natural” life of all human beings is almost the same because of their permanent and homogeneous structure, their temporal and spatial requirements are constantly subject to evolutionary and revolutionary changes.
As the conditions and circumstances of human societies gradually change, they transform themselves in order to adjust to changing conditions, thus giving rise to the necessity for bringing about certain changes in prevailing laws. It is in the context of such laws and regulations that Islam recognises the necessity of a principle.
On account of this, the guardian of the Law (the wali) has been authorised to make necessary changes in various periods and for people of different regions, when he considers it to be necessary. This can be done without subjecting the permanent laws to change, while satisfying the demands of human society.
Clarification of this Viewpoint
In the same manner as a member of an Islamic society is free to spend his income in whatever way he likes (of course, within the limits of the Law and in accordance with the criteria of God- fearing and piety; i.e. he is free to make use of his property in any manner he chooses, to expand or restrict, to increase or reduce the level and scope of his lifestyle, to defend and recover his rights and property or to waive or relinquish them if he chooses, to adopt any profession and work he chooses and the hours and frequency of such work and activity), so also the wali of Muslims, in the position of the caretaker of the affairs of Muslims, whose authority is sanctioned by Islam, by virtue of his wilayah over a region, presides over their social affairs; he represents the social will and consciousness, and is free to exercise his discretion in social affairs, like an individual in affairs of his own life.
He is authorised, in the light of fixed religious laws and with due observance of taqwa (God- fearing), to legislate laws in such matters as related to roadways, transport, housing, commerce etc. He can resolve on a war of defence, and, when necessary, order the mobilisation of the army; or, if he decides that armed defence is not in the interests of the Muslim society, order for conclusion of hostilities through negotiation, settlement and conclusion of suitable treaties.
He can, for example, implement a programme for cultural development related to religious or other affairs, and launch large-scale operations; or, if he deems fit, withdraw certain programmes in some fields and advance others in their stead.
In short, all those new regulations that can be beneficial in the progress of the social life of a society and are to the interest of Islam and the Muslim community, come under the authority of the wali al’amr. There is no restriction whatsoever in their legislation and execution. However, although such laws are compulsorily enforceable, and obedience to the wali al-‘amr is obligatory, at the same time, these laws are not considered a part of the Shari’ah, or Divine Law.
The juristic bases of such laws are the demands of conditions and circumstances, which call for their formulation. Accordingly, as soon as the grounds for their legislation disappear, their validity also ceases. In such a case, it becomes the duty of the present wali al-‘amr to proclaim among the people the abolition of the old law and enforcement of a new valid law.
But the Divine commands that constitute the Shari’ah are permanent and everlasting; not even the wali al-‘amr has any authority to bring about any change in them in the name of appearance of a necessity, or abrogate them in name of its disappearance.
Clarification of Certain Doubts
This brief explanation regarding the permanent and the alterable laws in Islam is sufficient to prove the baselessness of any charges against it.
Some say that the magnitude of the present social life cannot in anyway be compared with the life of fourteen centuries ago. The laws and regulations dealing with today’s system of traffic and transportation alone are more numerous and of a wider range than the total number of laws prevalent during the days of the Prophet (S). Many of the laws that exist today were not necessary to be legislated then. This is the reason why the Islamic Shari’ah which does not contain such regulations, has become irrelevant for the present-day world.
These gentlemen, of course, do not possess sufficient information regarding the Islamic Law and are entirely ignorant of variable laws sanctioned by Islam. They imagine that Islam, being a chain of fixed and static laws, tries to administer an ever-changing and developing world by their means. In other words, Islam, armed with an ancient sword has risen to fight the undefeatable system of creation; it desires to harness inevitable changes in human culture and to stop the march of time! Others have said that inevitable social evolution and change require an alteration and gradual change even in ‘fixed’ laws; therefore, the fixed laws of Islam, if their utility and strength be admitted, were good for implementation only during the times of the Prophet (S), not in all ages.
These gentlemen have not attentively pursued their legal studies. They have failed to realise that in all civil codes prevalent in the world, there is always certain material which is not subject to change. It cannot be denied that the laws and regulations in the past were different from what they are today, and will, in general, differ from the laws of future, too.
Nevertheless, there will remain certain common aspects in all law codes that shall never become obsolete and outmoded. In any case, as I have already mentioned in the previous part of our discussion, the process of legislation in Islam, whether it is derived from Divine Revelation-as in the case of fixed laws-or based on counsel (shura) and al-wilayah-as in the case of changeable laws-is exclusively based on reason and rationality, not on the emotional inclinations and irrational prejudices of the majority. However, in spite of it, the Islamic approach to law-giving cannot be compared with the mode of government in social regimes; Islam possesses a set of permanent laws, the Divine Shari’ah, whose alteration is beyond the powers of the guardians of the Muslim community (awliya’ al-umur).
The general Law of the Shari’ah is obligatory under all conditions and circumstances; only the particular laws are alterable, on account of the necessity to suit the changing and evolving social conditions and to guarantee the fulfilment of changing social needs Most systems of government have a law called “the constitution;” neither the government, nor the senate, nor the parliament, is authorised to bring about any change and alteration in it. There are other laws that are legislated either by the parliament or legislative council or are a product of deliberations and decisions of cabinet ministers. Only the latter class of laws, on account of their specific, particular applicability, is subject to change and alteration in accordance with changes occurring in a society or a country. As it cannot be expected from the constitution of a country to define, for example, every detail of the traffic rules or make amendments and changes in them every month or every year according to changing requirements, so also the Divine Shari’ah, which occupies the sanctified position of a constitution, should not be expected to contain any amendable elaborate codes.
Just as one does not expect the constitution of a country to put all its articles at the disposal of the parliament or government to make changes in them-even those articles which stress the independence of a country and its basic system of government-so also one should not expect that the laws of the Divine Shari’ah, which has the same significance as a constitutional law, be subject to alteration and change.
Thus the first criticism that Islamic laws are imperfect and are based upon such principles that are not relevant today is proved to be baseless. The second charge, also, according to which laws should be alterable and that Islamic laws are static and fixed, has been refuted.
In this connection, there is another question which arises, and which is a corollary to the second objection: It is true that among the standing laws of a progressive society there is certain material which cannot be abolished in toto, but do the laws of the Islamic Shari’ah guarantee the felicity of human society during all ages and at all times? Can the modern civilization continue its unabated march through such Islamic practices as salat, saum, hajj and zakat? Can such Islamic laws as those related to slavery, marriage, interest on debt, and other laws, hope to survive without modifications in the present-day world? These questions and others like them need a series of elaborate discussions which call for another time and place.
By: Allamah Muhammad Hussein Tabatabaei