Monday, 21 May 2012

JURISPRUDENCE: THE FOUNDATIONS OF SOCIAL JUSTICE IN ISLAMIC LAW


THE FOUNDATIONS OF SOCIAL JUSTICE IN ISLAMIC LAW
Islamic law establishes its regulation for social justice based  on three general foundations, namely, absolute freedom of conscience, the complete equality of all humans and the mutual responsibility of the individual and society toward each other.

FREEDOM OF CONSCIENCE
 The freedom of conscience  can be defines as the freedom to do what you believe to be right[1]. The basis of this foundation is that, without freedom of conscience, it is impossible to have a complete justice. In order to serve the highest purposes of human beings, it must arises from an inner conviction of the person. Thus, it must be claimed by the person and also it must be needed by the community. In terms of its application in legislation, the society cannot proceed with such legislation unless there is a threat from inside and a demand from its people. These are the facts that Islamic law has derived its ordinance and laws.
            Legislation concerning the poor-tax (zakat) in Islamic Law traces its root in freedom of conscience principle. It is due to the fact that Islam (Shari’a) prohibits begging. The Hadith views begging as non permissible and forbidden that results in punishment in the Day of Resurrection if it is done without the need to do as such. The law on poor-tax explains that poor-tax is to be accepted as a right and is not to be given as a charity : “And of their wealth there was a settled share for the beggar and the outcast[2]. Under the law, shares is collected by the state to be spend on Muslim welfare to meet the needs and maintain the self-esteem of those in need and to reserve to them their good conscience. The law on poor-tax is in line with the fact that zakat is one of the practical obligations of Islam.
            In conlcusion, the freedom of conscience in Islam (Shari’a) is the cornerstone on which social justice is build. It attempts to call forth the highest abilities and to arouse the highest desires in human nature, to liberate the conscience.

HUMAN EQUALITY
The Qur’an stated that humans are equal and there is no superior race or despised people by reason of its origin or its nature[3]. Islamic law uphold the principle stated in the Qur’an. The only purpose of equality is to make matter clear and firm in its application so that the justice is done accordingly.
            In Hadith there was an example of civil equality under the law. A case occurred in which a Jew came to the Prophet insisting on payment of a debt before it was due. His companions wished to beat up the Jew but the Prophet said: “Let him go; one who has a right, has the right to speak up.”[4]
            Theory of equality has been applied in practice in regard to the restriction on the rights of an individual when the rights of others are harmed. The example of equality under the law can be found during the reign of Khulafa’ Al-Rasyidin. The case involved the desire of the complaining person to obtain water by digging a canal under the defendant’s land and the defendant refused[5]. The case was brought to Caliph ‘Umar Ibn al-Khattab, who then decided to let the plaintiff dig the canal. The reason for the verdict is that it involved a benefit to others without impairment or injury cause to the owner. So in consideration, the welfare of the community takes precedence over the welfare of the individual.  
            According to Hanafi and Maliki schools of thought, the exercise of an individual rights is only permitted provided that it is exercised for the purpose for which the right was created and the exercise of a right is illegal if it result in an excessive harm and injury to others.

RESPONSIBILITY OF THE INDIVIDUAL AND SOCIETY TOWARD EACH OTHER
Every individual is expected to be a watchman in his community to guarantee its safety. The fact that when individuals work for the welfare of the community, they tend to work honestly. It is being contended that, to curb evil-doing in the community is everyone’s responsibility.
“Whoever among you sees any evil-doing, let him change it with his hand; if he cannot do that, let him change it with his heart; and that shows the weakest faith.”[6]
The community is responsible for its weak members. This can be illustrate by the community responsibility for the poor. In such instance, the state should pay them the zakat (poor tax) form the collection of money from the community to meet the needs of the poor.



[1] Oxford Advanced Learner’s Dictionary, 7th Edition at page 308
[2] Qur’an, 51: 19
[3] “O ye people, reverence your Lord who created you from one soul, creating from it its mate; and He spread abroad from these two many men and women” Qur’an, 4:1.
[4] Ahmad Zaki, Islamic Law and Contemporary Issues (Jidda: The Sausi Publishing House, 1972), p.37.
[5] Al-Dahak v. Muhammad Ibn Muslimah
[6] Tradition of the Prophet

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