THE RULE OF LAW AND THE CHALLENGE OF PLURALISM - 3

[Abstaract / Preamble ]    [ Conception and Legitimisation of Power ]   [ Source, Nature and Scope of Law]    [ Law and Morality ]   [ Secularism the Solution? ]   [ Option of Pluralism ]   [ Challenge of Pluralism / Conclusion ]    Source, Nature and Scope of law Sources of law will naturally and ultimately determine not only the nature and scope of the law itself but also its application in society. We shall here limit our selves to Islamic law on the one hand and the law in a secular state. For the limitation of space and time, we shall look at only three specific areas. Contractual Obligation - Laws are made to be obeyed, but from whence come the obligation to obey? In the modern secular state the obligation emanates from a social contract the individual is supposed to have entered with the society and the state that governs it. This social contract is the main force that binds the individual with his society and to be a good member of that society and a good citizen of that state is to fulfil that social contract  by obeying  its laws. It will be immediately noted that being a good member of his society and a good citizen of his state does not automatically make him a good member or citizen of another. This is not only because he has no contractual obligation with the other community or its state but also because when the interests of the two communities or states conflict, like they often do, to be a good citizen of one makes him automatically a bad one in the other. This is not polemics, for it has provided and continue to provide justification for the tyranny of one community against the other, one state against the other, as the story of imperialism, both old and new, amply demonstrates. Again where the social contract forms the only link and obligation between the individual and society, the individual does not feel always obliged when the society is not watching him. In others words once out of sight of society, man, in his weaker moments, has nothing to restrain his action. The state will require heavy surveillance and vigilance to arrest crime. Yet another dimension has been raised by Newbigin. Where power rests in the ‘will of the people’ which means the will of the majority, and where every individual among those who make up ‘the people’ has inalienable human rights, “how can these rights be secured against the will of the majority?” The inalienability here refers, in the classical political science, to God given rights, but if the “Creator has long retired from the public square”, how can these rights be secured by mere social contract. “The concept of rights” Newbigin argued, “belong to the language of law. It is a juridical term. Rights exist only if there is an agreed framework in which there are parties who acknowledge the corresponding responsibility to honour the claim of a right. Since these claims are - in the modern world - usually made against the nation-state, it is natural that the definitions of these rights become a matter of political negotiation. Individuals have rights only to the extent to which governments are prepared to acknowledge them. Anyone who regularly writes ‘Urgent Action’ letters for Amnesty International knows this.” (10) In Islamic law the contractual obligation is not between man and his community or state, but between man and God. For Islamic law is not aimed at producing a good citizen but a good man who will automatically be a good citizen not only of his state but of all states. He hardly has a choice since Allah with His omnipresence is not limited to a particular state or continent. This does not weaken man’s social obligation, it only strengthens it. “The man of Islam” as al-Attas observes, “is not bound by the social contract, nor does he espouse the doctrine of the social contract. Indeed, though he lives and works within the bounds of social polity and authority and contributes his share towards the social good, and though he behaves as if  a social contract were in force, he is, never the less an individual contract reflecting the Covenant his soul has sealed with God; for the Covenant is in reality made for each and individual soul.” (11) In this kind of contract, the obligation to obey the law is not diminished by the absence of societal supervision and perhaps no where is this dramatised as in the fasting of the month of Ramadan. For man is conscious of the fact that he is under Gods inescapable surveillance and that his very body will give evidence against him in case he denies his acts of injustice. On this issue it may worth listening to al-Attas again. “Analogically, the legal concept of habeas corpus (you must bring the body) as a fundamental procedure of justice is perhaps only a mere imperfect reflection of the awesome and irrefutable procedure to come. That the soul is capable of denial of acts of injustice is implied in al-A’raf (7): 172-173; and ... the fact that the witness to man’s actions, good or bad, is his own self is of great significance.” (12) Change and Stability - In the modern secular state, laws are wholly man made and are periodically reviewed and reformed. This has the immediate advantage of making the laws current and relevant albeit at the great expense of stability. The latter, is admittedly not of particular value in contemporary western philosophy which having taken off tangential when the renaissance movement broke the anchor that had secured the ship of western society, has since conceived progress only in linear progression, in its insatiable quest of infinite possibilities. Even though the contradictions of this conception of progress became evident fairly early and perceptive westerners such as T. S. Eliot had, in such works like ‘The hollow men’ (1925), sounded the alarm and more recently scholars like Antonie Vergote have boldly proclaimed that “The myth of a progress to infinite possibilities is dead”, law making in the modern secular state remains in a state of flux. It appears to be too overwhelmed with the present to even look back. In the words of the British Christian scholar, “Certainly we cannot go back, but we should look back on the way we have come. A society which has lost its memory is like a ship which has lost its rudder. it can only drift with the tides.” (13) Islamic law has often been described as static, and therefore archaic and anachronistic. Such description can only be born out of ignorance or mischief or both, as is often the case. For Islamic law has two components the divine, which entails the eternal principle of the Sharia and the human which allows for the dynamism of society. While the first component gave it its stability and direction the second which constitutes its human inputs, creativity and ingenuity allows it to address and manage change. So Islamic law is made up of a structure that is solid, stable and unchanging and a superstructure that is constantly adapting to time without losing its purpose or direction. So the concept of law reform prevalent in the legal systems of the modern secular state has no equivalence in the Sharia. To be sure, development and progress in Islam is not a linear movement in time but a  conscious and continuos return to the transcendental principles enshrined in the Qur’an and Sunnah. In the more refined, if philosophical, language of al-Attas, In Islam, “Progress is neither ‘becoming’ or ‘coming-into-being’, nor movement towards that which is ‘coming-into-being’ and never becomes ‘being’, for the notion of ‘something aimed at’ or the goal inherent in the concept of ‘progress’ can only contain real meaning when it refers to that which is already clear and permanently established, already being. Hence what is already clear and established, already in the state of being, cannot suffer change, nor is it subject to constant slipping from the grasp of achievement, not constantly receding beyond attainment. The term ‘progress’ reflects a definite direction that is aligned to a final purpose that is meant to be achieved in life; if the direction sought is still vague, still coming-into-being, as it were, and the purpose aligned to it is not final, then how can involvement in it truly mean Progress?” (14) Parochialism and Pluralism - Some laws are inherently parochial while others are not. This is fairly easy to understand. Laws made by men in a particular nation state would be expected to address the immediate human context and even to be slow at adjusting to the changes that gradually creep into that human context. The British law of blasphemy may help illustrate this point. It holds blasphemy against Christianity a crime but does not recognise blasphemy against other religions like Islam or Hinduism as crime even as it has Muslims and Hindus in their millions as British citizens. The Islamic law on the other hand recognises the plural nature of its constituency and therefore did not reserve blasphemy a crime for Islam only but extends it equally to other religions. “The Sharia”, observes Ibrahim Suleiman, “is a world system. It anticipates from the very beginning the gradual transformation of the world into a global village. Although its first and primary constituency is the Muslim Ummah because it is the Ummah that voluntarily declares its obedience to its dictates, the Sharia always addresses mankind as a whole and appeals to its conscience as a single entity.” “The scholar of the Sharia” Ibrahim adds, “is a universal scholar, who is concerned primarily, of course, with the specific problems of the Ummah, but also with the wider problems of the world.” (15) The Pluralism of the Sharia sinks down to the most fundamental and most intimate human relationship, marriage. The Sharia allows a Muslim male to marry a woman from the people of the book, i.e. Jews or Christians, without having to compel her to convert. This is not only a recognition of the messages and the messengers of these religions but also a recognition of the fact that Muslims are meant to live in a plural world in which relationships with others could be as intimate as intimate could be. It should perhaps be added quickly that the refusal of the Sharia to allow Muslim women to marry non Muslim men has nothing to do with what even Muslims refer to the weakness of women. Islam does not view women as weak and many of us have known army generals who go out to command troops only to come home and be commanded by a woman. The reason has nothing to do with weakness. Rather it has to do with Sharia’s concept of justice. Under the Sharia, a wife has a right to be fed, clothed and accommodated by the husband and these rights are justiciable. In other words if the wife should go to court the husband can be compelled to pay up. But if the husband is not a Muslim it will be unjust to enforce the Sharia on him and this leaves the woman without the protection which the Sharia has provided married women.