The Law is Islamic by Nature:
If this dualism were to be destroyed, law would disappear. In the first case, law reduces itself to its subject – that is, interest, power, politics, to the utilitas of Roman law; in the second case, it sublimates itself to an abstract idea of righteousness or to moral appeal. In both cases, it ceases to be law.
Accordingly, law cannot be based on one principle only. Neither Christianity nor materialism can produce a system of law. Law, as seen by Christians, is an illusory attempt at bringing this world into order, an attempt inevitably bound to fail in the end. Jesus came to restore love and not the justice of the Old Testament. Nevertheless, love does not belong to this world; it is heavenly virtue.[1] Jesus did not recognize the need for judges,[2] while Hugo Grotius cuts the former connection between natural law and the “Sermon of the Mount” because of “its higher degree of holiness.”
Law is objective, involved in politics and society, totally facing this world. But at the same time, it includes norms and ethics and tries to bring into this world the principle of justice – that is, a moral principle, which means something being not “of this world.” As such, law is a “bipolar unity” – like man and Islam.
Law cannot be established only by religion or materialism, nor can it be established contrary to them. Without Christian emphasis on the value of man’s personality – his intention, righteousness, natural human rights, and so forth – there is no law. On the other hand, without admitting the value and importance of this world and without interests and power – without that which Judaism emphasized – law will have no meaning. Without the Christian approach, it would not be possible and without the Jewish approach, it would not be necessary. From the said premises, it follows that law is Islamic by nature.
Historically speaking, law is a phenomenon of the mature stage in the life of a culture. It emerges in the time of balance between religious and people’s socio-political aspirations. This is a time when religious feelings are still strong and are capable of influencing the people’s life, but are already limited to a great extent by the rational utilitarian reasons of the coming civilization. Besides man, whose value was confirmed and established by religion, society also emerges as an independent reality. At that moment, they are two equal values. Their balance (Islamic balance) is a prerequisite to creating and developing a complete system of the law.
The situation can be observed in the emergence of the three most famous law systems in history: the Roman, the Islamic, and the European. The first phase of Roman law, known as the time of the civil law (period of the Kingdom and the first three centuries of the Republic), is characterized by a complete identity between law and religion, between ius and fas. Civil rule (ius) has the nature of the religious norm (fas), and vice versa. Later, these principles are separated from each other. Nevertheless, Roman civilization and Roman political thinking had to be permeated by stoical moral and religious philosophy in order to enable the further development of its law. The Roman empiric principle of utilitas joined the stoical idealistic idea of lex universalis[3] for neither Roman civilization nor the Stoical philosophy could create the Roman legal system by itself. [4]
In Islam, we find a kind of “personal unity” between law and theology. Almost every great “religious” thinker of Islam has written books on jurisprudence.[5] It is difficult for Europeans to distinguish between law and theology in these works. Islam does not recognize this separation. In a sense, law is a natural product of Islam. Alfred V. Karmer writes: “The Arabs [Muslims] are the only people during the early Middle ages who, in developing the science of law, “achieved significant results. These results, in their grandiosity, stand immediately with the works of the Romans, the lawmakers of the world.”
In European history, the development of law starts along with the overcoming of the Church and continues up to the appearance of socialist theories and socialism in European Science. These few centuries, when elements of European culture and European civilization coexist, is the period of great European charters and codes. This dualism – in essence Islamic dualism – is reflected very clearly in the great juridical opus of Hugo Grotius, the central personality of European juridical thinking. At the end of the Reformation, he summed up the teachings of Catholic and Protestant juridical writers, and proved how law is, at the same time, dependent upon and independent from ethics and religion. Later, because of this dualism, some writers (such as Werner and Ahrens) tried to prove that the distinction made between law and morality was a great achievement of Grotius, while the others (such as Kirchmann) tried to prove the opposite. With the claim that God is the ultimate source of law, Grotius confirmed his belief in the mutual relation between law and religion.
The independence of law cannot be destroyed even in the most politically extreme Marxist state. Regardless of very clear theoretical views, in practice it is not possible to completely identify law with the will of the state – there always remains an insurmountable distance. Socialism and an independent developed, and free juridical system are mutually exclusive.[6] Every law needs distance and standards. Socialism requires immediateness, objectiveness, and direct action. In socialism, which applies physical (or biological) habits of thinking to social life, there is no room for law since law is the opposite of physics, not recognizing “should” by only “is.”[7]
The poor reputation of courts in people’s democracies is the result of the ideological attitude toward law which, in spite of all pressures, remains in a sense natural law and not the will of the ruling class. Courts, as the executors of law, must share the bad position of law in general and be in “disfavor” (this is also true with the legal profession). Every government of this type tries to degrade law to the rank of politics, and courts to the rank of secretariats; but, as it never completely succeeds in this, it usually ignores the courts and, when necessary, uses direct prosecution by the police, the administrative authorities, and concentration camps – that is, the extra-judicial means. The state and the government are the expression of physical power, the courts and law of moral power. To recognize that the moral power of the courts and law can balance the physical power of the state means to recognize the supremacy of an idea over things and mind over matter. The principle of court independence is not compatible with the system of an atheistic state.[8]
The consistent part of the said situation is the disrespect of their own laws, and the “production’ of an inflationary number of regulations.[9] Such is the consequence of ‘direct action” – that is, the attempt to replace law by political action, or simply by political regulations, letters, messages, and even speeches of leaders which become more important that the constitution and laws, for example, the Quotations of Chairman Mao. In all states of this type, we meet the large power of the executive authorities at the expense of the elected bodies and the police at the expense of the courts and the legal profession. These kinds of states are trying to make courts obedient tools in the hands of the administrative authorities, but they are never completely successful. Law can be curbed or subdued to some extent but, like man, it cannot be destroyed or reduced to nothing.
All men believe in the soul and act accordingly, even if they do not away speak up. If somebody has committed a murder and admits it, but insists that he did it unintentionally, what follows then with the prosecutor, the defense, the witnesses, the experts, and the court? Why do they deliver learned speeches, analyze every detail, and so on, when the very deed has been admitted to and its consequences are evident? All their efforts are not concerned with external objective facts, but with an inner problem: that of intention. It is not a question of what actually happened, but what happened in the heart of the murderer. Even when we examine the facts, we do so only to find out the state of the soul – that is, the intention. Moreover, everyone involved in the case spontaneously believes that the intention is more important than the consequences. That means that everyone, may be unconsciously, prefers the soul to the facts. A worker who, unintentionally, causes a mine disaster in which hundreds of miners are killed, will be less responsible and less punished, than a man who kills an old woman in order to rob her. Does not this “illogical” sentence reveal that there is a soul, and that we really judge not what happened in the world, but what happened in the heart of the criminal?
Man’s judgment strives to imitate God’s judgment. The more we consider one’s intention in the judgment, the more we come nearer to that of God. “But there is no blame on you, if you make a mistake therein; what counts is the intention of your hearts.”[10] By accepting the intention, even in the smallest degree, we admit the existence of God and thus reject materialism. Starting from the inverse logic, materialistic philosophy arrived at the negation of responsibility – that is, of justice and injustice, and to the affirmation of an opposite principle, that of the defense sociale. Both lines of this development were completely justifiable..
[1] St. Thomas Aquinas: Basic Writings of Saint Thomas Aquinas, “Summa Theologia,” II, 1. 91. ed. Anton C. Pegis (New York: Random House, 1945).
[2] Luke 12: 13-15
[3] The best parts of Roman law were undoubtedly created under Stoical influence, for example, the following: “Juris precepta sunt heac: honeste vivere, alterum non leadered, suum cuuique tribuere” (“These are the rules of the law: to live honestly, not to offend anyone, to give everybody what is due to him”).
[4] Roman jurists came into contact with Stoical natural law about 150 B.C., when Panetius, one of the most famous Stoics of his time, was in Rome. Cicero’s works are by far the best results of this synthesis. On the impact of Stoicism on Roman law, see Barth’s Die Stoa, p. 120ff.
[5] For example, the well-known Imam Abu Yusuf wrote on finance (Kitab al-Kharaj) and another great “religious” writer, Ash-Sha’bani, wrote war law.
[6] Still in 1978, 30 years after the People’s Republic of China was founded, it had neither a civil nor a criminal legal code. It was considered for a long time to be a “forbidden zone” to complete the laws, according a statement of the well-known Chinese jurist Han Yi Tung at a conference in 1978.
[7] Jevengenij Pasukanis, the best-known Soviet law theorist between the two world wars who disappeared in Stalin’s pures, wrote that: “… there is no proletarian law, and consequently there is no socialist law.” See his Allegemeine Rechtslebre und Marxismus, 1929, P. 33. Compare this statement with the “similar” Christian negation of the law by Rudolf Sohm: “The Law of the Church stands in opposition to and contradicts the very nature of the Church.” See his The Lawof the Church.
[8] It has to be noted that the principle permanency of a judge (lifetime appointment for judges), which is a condition of the judge’s true independence, is usually in the socialist states substituted for the opposite principle, that of re-election (appointment of judges for a limited period). This system makes judges directly dependent upon the government. judges are permanently worrying about being on “good terms” with those who re-appoint them..
[9] In the USSR during 1937-1974, about 370 laws were passed but, at the same time, the executive authorities (different ministries), produced over 700,000 regulations (sub-law precepts).
[10] The Qur’an 33:5.
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Two Aspects of Law
Two Aspects of Law
If the system of law is defined as human interest sanctioned as a right, then both religion and socialism are unfit for the law. Religion does not understand interests, and socialism does not understand rights..
No law can be based on interest only. Neither can it be based on the so-called “common interest” or the “state reason” because the common interest and the innate right of the so-called individual usually oppose each other. If man is not a person and is only a member of society, as is the case socialism, then he has a priori no absolute and natural rights – he has only the “rights,” bestowed upon him by the state. Beyond that, a member on a society has no other rights.
Rights are inalienable only if they are original and not the will of a king, or a parliament, or of a social class – that is, if they are given by nature or by God and were established only with the creation of man. Rights are an aspect of human dignity, and being so, they transcend time, conditions and history, and reach to the act creation. Here lies the link between natural rights and religion and the divergence between natural rights and materialism.
In The Jewish Question (1844), Marx writes: “So-called human rights, droits de I’homme, as distinguished from droits du citoyen, are nothing but the rights of a member of the middle class, i.e., those of egoistic man, separated from other men and society.” Another writer of the materialistic school, Jeremy bentham, wrote about human rights with disdain: “Human rights are nonsense, and natural human rights are nonsense squared.” In one writing, Bentham calls the French Declaration of Human Rights a “metaphysical work,” which in a sense it is. The search for the origin of the tricolor: freedom, equality, and brotherhood (liberate, egalite, fraternite) in Europe leads us to Rousseau and to the American Declaration of Independence in 1776. Jellinek declares that the Declaration of Human Rights is the consequence of the Reformation, not of the revolution.[1]
Ernest Bloch, who tries to reconcile Marxism and natural human rights, is obliged to conclude: “It cannot be accepted that man is free and equal by birth. There are no innate human rights; they are all obtained or have to be obtained by struggle.”[2]
From this point of view, history is not a conflict between rights but a conflict between different interests. That is the meaning of “class struggle.” The class that emerges victorious in this struggle proclaims its interest (its will) as law.. Therefore, the Marxists say: “Law is the will of the ruling class transformed into legal regulations.” Accordingly, there is no right and wrong, justice and injustice. The question is only which interest comes out as the winner in this struggle.[3]
If that is the case, then it is only the stronger who will have rights. Nevertheless by nature, every law is the total opposite: the right of the weaker for the strong do not need any law. Law has always been a way for the weak to oppose the strong, in the same way as the liberty of opinion and belief is primarily the right to have a different opinion and a different belief. A law which gives the citizen “the right” to applaud and to glorify the ruling clique would not be a law but cynicism. The touchstone of the legality of any social system is the way it treats its opponents and minorities. The power of the strong is a fact, not the law. The law starts where the limitation of this power begins and where it has taken the stand of the weak as opposed to the benefit of the strong. This is why every people fight for a constitution, and every king tries to get rid of it.
Bloch rightly says that “every dictatorship is the suspension of law.” That also applies to dictatorships of the proletariat. After all, is it not the proletarian dictatorship “a reign unlimited by law and based on violence” (Lenin)? Has not practice proved that the dictatorship of the proletariat has been transformed into a dictatorship of the secretariat? The statement that law is the will of the ruling class is the negation of the law’s essence. The definition according to which “law is the measure of politics” (Lenin) or that “the law conscience is a part of the political conscience”[4] has the same meaning. No doubt, this negation of the law has its parallel in the denunciation of religion – that is, a direct result of materialistic philosophy. How could the power of the strong be limited except by religious principles? For what sake should a nation tolerate a minority that it could easily exterminate or divest of its property? What principles did the white immigrants in America violate when they almost completely exterminated the native population? If law is the will of the ruling class, it had a right to do so for it was stronger and historically more progressive, in a word, it was the “ruling class.” What principles did the capitalists violate during the time that Marx called the period of primary capital accumulation? If law is the will of the ruling class, the capitalists – because they were the ruling class – did no violence but the law. That would mean that the workers who resisted were breaking the law, for they were working against that monstrous “will of the ruling class,” or rather were working against a limiting principle of this will – that is, an independent principle.[5] The examination of the nature of this principle puts us in front of the same problems as when searching for the essence of life, art, or freedom.
The true laws of a society are only those which, besides the threat of punishment, oblige the conscience of the citizens, too. Every system of law is such, or at least it pretends to be so. In practice, proletarian dictatorship tends to be a democracy. Any law defined as the will of the ruling class ceases to be only the “will,” for it inevitably becomes “justice,” “righteousness,” or in a word law. This “duality” cannot be avoided; in fact, it is an imitation of the original dualism of the law.
[1] Jellinek: Die Erklaling der Meschenrechte, 1904.
[2] Ernest Bloch: Natural Law and Human Dignity (Belgrade: n.p., 1977) p. 178.
[3] One of those definitions of “the law” reads: “The law is the collection of the rules expressing the will of the ruling class… The application of these rules is done by the force of the state, with the aim to solidify, to strengthen, and to develop the social relationships and conditions corresponding to the will and profit of the ruling class. Vishinsky: The Main Taks of the Science of Soviet Social Law, 1938. The author of this definition, as the main state prosecutor during the purges of 1936-1939 in the USSR, had a good opportunity to show where such a definitions leads to.
[4] Vishinsky: The Law of the Soviet State, trans. Hugh W. Babb (New York; The Macmillan Company, 1948). Also, see Karl Marx’s position on the subject (introduction, ibid., p.37): “Society does not rest on law. That is the phantasy of the jurists. On the contrary, law – in contrast to the arbitrariness of the separate individualism – must rest on the society, must an expression of society’s general interests and needs, as they emerge from a given material means of production.”
[5] A clear proof of this law is the fact that even the slave-holder’s Roman law had to declare the people of man’s freedom: “Ab initio omnes homines liberi nascebantur” (“From the very beginning all men were born free”). Without this, it would not be a law, but the will of the ruling class.
