The Basis of Legislation

The Basis of Legislation


Man has been created free. He is not subservient to anyone except the Almighty. Hence, neither an individual nor a state has any right to impose any restrictions on his ideology and deeds or take any step against his life, wealth and honour. This freedom is a birth right of a person, and has been granted to him by his Creator. The Global Manifesto of Human Rights is a declaration of this reality. All nations of the world have accepted it and have guaranteed that they will not violate it in their constitutions. This is a testimony to the fact that the awareness of freedom is found in human nature and a person would never want that any individual or government to try to arrest it. The Prophet Muhammad (sws) in his sermon of hajj stressed this very reality in the following words:

اِنَّ وَدِمَاءَكُمْ وَاَمْوَالَكُمْ وَاَعْرَاضَكُمْ بَيْنَكُمْ حَرَامٌ كَحُرْمَةِ يَوْمِكُمْ هَذَا فِي شَهْرِكُمْ هَذَا فِي بَلَدِكُمْ هَذَا

Indeed, your lives, your wealth, and your honour are as sacred and inviolable as this day of [sacrifice of] yours in this city of [Makkah of] yours in this month of [Dhu al-Hajj of] yours.[1]

The question, however, arises: is this freedom of life, wealth and honour absolute in nature? The answer to this question is firmly in the negative. This freedom ends when a person usurps the rights of others or takes a step against the life, wealth and honour of an individual. Man's moral awareness and God's shari'ah both agree that after this every society has the right to terminate this freedom and refrain from acknowledging this sanctity of life, wealth and honour.

It is this which in reality forms the basis of legislation in an Islamic state. All laws are made to stop people from usurping the rights of others and committing excesses against them or to punish their perpetrators. The right to legislate of every institution, every government and every parliament begins and ends here. The directive God has given a Muslim state to punish people who kill, steal, falsely accuse people of fornication and spread anarchy in the land is because fornication is tantamount to usurping rights while killing, stealing, falsely accusing someone of fornication and spreading anarchy in the land are excesses committed against the life, wealth and honour of people. When in the times of the rightly guided caliphs the issue of prescribing a punishment for liquor arose,'Ali (rta), on this very basis, opined that a drunkard should be given the same punishment as the one prescribed by the Qur'an for falsely accusing someone of fornication. That is when people drink, they will get intoxicated and once they get intoxicated, they will utter nonsense; and once they start uttering nonsense, they will falsely accuse other people.[2] Similar is the case of marriage, divorce, distribution of inheritance and other similar matters. All these relate to the state only when a person does not discharge the rights imposed on him by the Almighty, and in this manner is guilty of usurping rights. In the state of Pakistan, laws regarding permission of the first wife for second marriage and prohibition of marriage of minors have been made on this basis.

Every government and every legislative forum of the world is bound to justify the legitimacy of all the laws and statutes they enact on this basis as well. Moreover, it is the right of the people to analyze the laws made by them and if they see that there are some laws which are devoid of this basis, to not accept them. Thus, if a government, for example, has enacted the law that people will not be allowed to wear their religious identifications like the zunnar, the cross, the turban or kirpan, or they will have to necessarily give a wife a certain amount of their wealth at the time of divorce or will not shave their beards or not wear shorts or not listen to music or women will not go out without wearing the veil or will not put on the scarf then this indeed is exceeding the limits. Similarly, if, on the contrary, it has enacted the law that they cannot go out unless they wear the veil or not go for hajj or 'umrah without a mahram or will not drive cars, or will not adopt such and such a profession, or will not take part in politics or will not cast votes, then this also is exceeding the limits. Even if any of these is God's directive, then people are answerable before God if they follow or violate it. No government of the world has the authority to order a person to obey such matters. The Almighty has made it evident in unequivocal terms that among the positive requirements of religion, a state can only demand two things from its Muslim citizens: the prayer and the zakah. The Qur'an asserts that after this a state must leave them alone and not try to implement anything else on them through law. It says:

فَاِنۡ تَابُوۡا وَ اَقَامُوا الصَّلٰوۃَ وَ اٰتَوُا الزَّکٰوۃَ فَخَلُّوۡا سَبِیۡلَہُمۡ (5:9)

So, if they repent, are diligent in the prayer and pay zakah, leave them alone. (9:5)

This directive was given to the Prophet Muhammad (sws) at the time when God ruled on this earth. Thus, while explaining this, I have written:

… This means that at the state and legal level no additional demand can be made from the Muslims to fulfil the requirements of faith and religion. This is because if God did not allow this under His own rule, how can others be given this permission.[3]

(Translated by Dr Shehzad Saleem)

______________

[1].Al-Bukhari, Al-Jami' al-sahih, vol.1, 37, (no. 67).

[2]. Abu al-Walid Muhammad ibn Ahmad ibn Rushd, Bidayah al-Mujtahid, 1st ed., vol. 2 (Beirut: Dar al-fikr, n.d.), 332.

[3]. Javed Ahmad Ghamidi, Al-Bayan, 1st ed., vol. 2 (Lahore: Topical Printing Press, 2014), 325-326.




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