The Lawgiver (Hakim)

III.1 The Lawgiver (Hakim)

The ulema are unanimous to the effect that the source of all law in Islam is God Most High, whose will and command is known to the mukallaf either directly through divine revelation, or indirectly by means of inference, deduction and ijtihad. The Qur'an repeatedly tells us that 'The prerogative of command belongs to God alone' (Al-Imran, 6:57). Law and justice in the Muslim community must derive their validity and substance from the principles and values that the Lawgiver has sanctioned. This is the purport of the Qur'anic text in sura al-Ma'idah (5:45 and 5:49) which declares to be unbelievers those who refuse to accept the authority of the divine law. Even the Prophet does not partake in the prerogative of command, as his command, or that of the ruler, the imam, the master or the father for that matter, does not constitute binding authority in its own right; instead, obedience to such individuals

The ulema are in disagreement, however, as to the way in which the will or the hukm of the Lawgiver regarding the conduct of the mukallaf is to be known and identified. Can we know it by means of our intellectual faculty without the aid and mediation of messengers and scriptures, or is the human intellect incapable of ascertaining the law without divine guidance? A similar question arises concerning harmony and concordance between reason and revelation, in that when the human intellect determines that something is good (hasan) or evil (qabih), is it imperative that the hukm of the Lawgiver should be identical with the dictates of reason? In response to these questions, the ulema have advanced three different views, which are as follows:

Firstly, the Ash'arites, namely the followers of Abu'l-Hasan al-Ash'ari (d. 324 A.H.), maintain that it is not possible for human intellect to determine what is good and evil in the conduct of the mukallaf, or to identify the hukm of the Lawgiver concerning the conduct of the mukallaf, without the aid of divine guidance. For human reasoning and judgment are liable to err. While an act may be evaluated by one person as good, another person might say the opposite. We normally say, for example, that honesty is good, but when it is likely to cause the death of an innocent person in the hands of a tyrant, it may be regarded as evil. It is therefore not for the human intellect to determine the values of things, and we cannot say that what the 'aql deems to be good is necessarily good in the sight of God, or that what it considers evil is also evil in His sight. The Ash'arites thus maintain that right and wrong are not determined by reference to the nature of things, or our perception thereof, but are determined as such by God. When the lawgiver permits or demands an act, we know that it is right/good, and when He forbids an act, it is certain that the act in question is wrong/evil. Hence the criterion of right and wrong is shar', not 'aql. According to this view, which is held by the majority of ulema, what the law commands is good and what it forbids is evil. This view is in accord with what is known as the principle of the rule of law (also known as the principle of legality) which establishes that a man is not required to do something or to avoid doing it unless the law has been communicated to him in advance. No-one is either rewarded for an act or punished for an omission unless he knows its status by means of a clear communication. Thus when a person happens to be living in total isolation and has never received the message of the Lawgiver, he is not a mukallaf and deserves neither reward nor punishment. This view quotes in support the Qur'anic proclamation: `And We never punish until We send a messenger' (al-Isra, 17:15), which indicates that reward and punishment are based on the revealed law, not the human intellect. Elsewhere in the Qur'an, we also read, in a reference to the purpose of divine revelation, `[...] so that after the coming of messengers, mankind would have no plea against God' (al-Nisa, 4:165). In yet another place the Qur'an affirms that punishment is imposed only after the people are duly warned but not before: in a reference to the disbelievers, the Qur'an thus proclaims: 'Had We inflicted on them a penalty before this [revelation] they would have said: Our Lord! If only you had sent us a messenger, we would have followed your signs [. . .]' (Ta-Ha, 20:134).

The Ash'arites maintain the view that the commands of the Lawgiver relate to the conduct of the mukallaf only after the advent of Islam and that prior to this event there is no basis for obligation.

Infidelity (kufr) is not haram, nor is faith (lyman) wajib before the revelation actually declares it so. [53.

Shawkani, Irshad, p.7. Abu Zahrah, Usul, p.57ff; Khallaf, 'Ilm, p. 97.]

Secondly, the Mu'tazilah, that is, the followers of Ibrahim al-Nazzam, have held the view that human intellect can identify the law of God regarding the conduct of the mukallaf even without the mediation of scriptures and messengers. The shar' only removes the curtain from what the `aql could itself perceive, and in essence the former is identical with the latter. The intellect (`aql) can identify the good and evil in human conduct by reference to its benefit and harm. God's law concerning the conduct of the mukallaf is not only identifiable by the human intellect but is also identical with the dictates of the human intellect. God only asks the mukallaf to do what is beneficial and forbids him from doing what is harmful. Whatever the `aql sees as good or right, is also good in the sight of God, and vice versa. A person who acts against the requirement of reason may therefore be punished and one who acts in harmony with it may be rewarded. In this way, a person who has received no communication from the Lawgiver can still be considered a mukallaf and be held responsible on the basis of reason, and his punishment or reward can be determined accordingly. The Mu'tazilah assert that it is impossible for God to command something which is inherently evil or to prohibit something that is intrinsically good,

which obviously means that shar` and `aql are always in agreement with one another. [54. Ghazali, Mustasfa, I, 36;

Khallaf, 'Ilm, p.98; Abu 'Id, Mabahith, p.121.]

Al-Ghazali is critical of the Mu'tazili view for its propensity to turn the determination of good and evil into a totally relative proposition. When an act is agreeable to one person and disagreeable to another, it is good from the viewpoint of the former and evil from that of the latter. Such a relativistic and circumstantial approach to good and evil is totally unacceptable. The Shari'ah does not and cannot operate on this basis. Instead, the Shari'ah evaluates the acts and conduct of the mukallaf on an objective plane regardless of whether they agree or disagree with particular interests. When the

Lawgiver commands an act, or when He praises it, it is praiseworthy and good in all cases. [55. Ghazali, Mustasfa, I, 136.] Al-Shawkani is also critical of the Mu'tazili view, and highlights some of its weaknesses by

saying that certain areas of human conduct are not amenable to rational evaluation. It is true that 'aql can determine the value, say, of truth and falsehood, as truth is beneficial and lying is harmful. 'Aql can also discern the value of saving the life of a drowning or of a starving man, yet it cannot determine the virtue of fasting on the last day of Ramadan or the enormity of fasting on the day which follows it. The

good and evil in this case can only be determined by shar`, not by 'aql. [56. Shawkani, Irshad, p. 7.] Most of the `ibadat, including salah and the pilgrimage of hajj, fall under this category. The human intellect may be

able to perceive a value in them only because of a benevolence and grace (lutf) therein which prevents obscenity and corruption; but `aql alone is unable to assess the precise value of `ibadat. [57. Ghazali, Mustasfa, I,

The Mu'tazili approach to the question of right and wrong embodies a utilitarian approach to jurisprudence in the sense that a good law is that which brings the greatest benefit to the largest number. Right and wrong are evaluated from the viewpoint of the benefit and harm that they entail to the person who acts upon it and to others. Acts which do not relate to this context are simply regarded as of no consequence; they are branded as `abath, that is, totally `in vain'.

Thirdly, the Maturidis, namely the followers of Abu Mansur al-Maturidi (d.333 A.H.) have suggested a middle course, which is adopted by the Hanafis and considered to be the most acceptable. According to this view, right and wrong in the conduct of the mukallaf can indeed be ascertained and evaluated by the human intellect. But this does not necessarily mean that the law of God in regard to such conduct is always identical with the dictates of 'aql, for human intellect is liable to error. The knowledge of right and wrong must therefore be based on divine communication. This view basically combines the two foregoing opinions, but tends to lean more toward the Ash'arites in that the responsibility of the mukallaf is to be determined not with reference to the dictates of human reason but on the basis of the law as the Lawgiver has communicated it. `Aql is capable of discerning good and evil, but this evaluation does not constitute the basis of reward and punishment; which is a matter which is solely determined by the Lawgiver. Whatever the Lawgiver has commanded is right, and merits reward, and whatever He has forbidden is wrong and its perpetrator is liable to punishment. This view also agrees with that of the Mu'tazilah to the extent of its recognition that the inherent values of things are discernible by human intellect which can perceive and detect values in the nature of things. The Maturidis, however, differ with the Mu'tazilah in that they hold that no reward or punishment can be

granted on the basis of `aql alone. [58. Abu Zahrah Usul, p. 56; Khallaf, 'Ilm, p. 99; Abu `Id, Mabahith, p. 123; Qasim, Usul, pp.239-243.]