Religion and Society
Summary
This section explains that society is based on a delicate network of human relationships which, under the slightest of provocations, can become tangled, broken or distorted. Injustice of a greater or lesser gravity is the usual result of such aberrations. What, then, does it require to maintain the balance of justice? Clearly, laws must be framed that correspond to moral imperatives, that are enforceable and that maintain a proper equilibrium between the permanent and the peripheral. Despite the urgent need for such laws, society has failed—even after the experiences of several centuries—to evolve a universally-acceptable principle on which a viable set of laws might be based.
Divine law is the only answer to this problem, for we can derive from it all those basic principles upon which our legal systems are permanently to rest. Divine law addresses itself specifically to basic issues, remaining silent on secondary matters. In this way, it defines what part of the law is inviolable and what part may be subjected to changes. Because Divine law comes directly from God, we can have full confidence in its validity. Divine law has conferred the most immense of benefits upon humanity. No equivalent alternative can ever be fabricated by man himself.
If we consider some of the alternatives to Divine law that have been proposed over centuries, we can see that, if they have certain strengths, they also have inherent weaknesses. The very fact that its origin is God is sufficient reason for applying Divine law in the world of man. It does not require any further justification. God is All-knowing and All-seeing. When He prohibits something, it is because, quite simply, that thing is bad for man, and whatever is bad for man should be considered immoral and at all times be eschewed. A person committing an action considered an offence according to Divine law can be made to feel that he is doing something wrong, for his action will be condemned by the whole of society. The law-enforcement authorities will then be able to apprehend him with full confidence, and judges will be in a position to deliver their verdicts confident that they are punishing someone who is deserving of punishment.
It is not that man has not strained every fibre of his being to come up with laws to govern society. He has, in fact, made as many attempts to discover viable social laws as he has to discover the secrets of the universe. The truth is that, hard as he may try to find a just basis for the laws governing society, this will always elude him, for it is something which is beyond him to find through his own efforts.
The fact that only partial knowledge has been granted to man is a reality that must be accepted. The limitations of the human mind prevent it from grappling successfully with the infinitude of facts that it would be necessary to apprehend and systematise if truly just and equitable laws were to be enacted. We are thus forced to conclude that there must be a Mind vastly superior to the human mind that is the origin of all truth. We must, likewise, accept that revealed law is unsurpassable in the permanence of its justice.
Society is based on a delicate network of human relationships which, under the slightest of provocations, may become tangled, broken or distorted. Injustice of a greater or lesser gravity is the usual result of such aberrations. What then does it take to keep the balance of justice? Clearly, laws must be framed which correspond to moral imperatives, which are enforceable and which maintain a proper equilibrium between the permanent and the peripheral. Despite the urgent need for such laws, society has failed—even after the experiences of two thousand five hundred years—to evolve a universally acceptable principle on which a viable set of laws might be based.
As L.L. Fuller put it, the law has yet to discover itself. In his aptly entitled book, The Law in Quest of Itself, he points out that, in modern times, great minds have addressed their considerable talents to this subject, and innumerable weighty volumes have been written as a result. “Through being fashioned into a formidable science,” says the Chambers Encyclopaedia, “law has made great advances.” Yet all these efforts have failed to produce a unanimous concept of law. One legal expert puts it this way: “If ten constitutionalists were asked to define what they meant by law, it would be no exaggeration to say that we would have to be prepared for eleven different answers.” Leaving aside technicalities, these schools of thought can be broadly divided into two categories of jurisprudence: the ideological, whose quest is ‘Law as it ought to be’, and the analytical, which interprets ‘Law as it is’. The history of the principles of law shows that neither has arrived at any acceptable conclusion. When jurists attempt to interpret the law in terms of the second category, objections are raised that logical justification has escaped their attention, and when they attempt to understand it within the framework of the first category, they are forced to the conclusion that it is something which is impossible to discover.
One school of thought views the law simply as an external structure of human society which can be built according to known rules and regulations exactly like a cage that is built to confine animals in the zoo. This theory was supported by John Austin (1790-1859) who said: “Law is what is imposed by a superior on an inferior, be that superior the king or the legislature.”
While this appears to be a practicable theory, it is actually bereft of any valid logic, in that it accords the jurist a superior position without any necessary insistence on the criteria of justice being adhered to. But the human intellect could never concede that justice as a concept might be separated from the law. When the law imposes a judgement on someone, it is considered valid only when it is based on justice. As G.W. Paton observes, Austin’s definition of the law reduces it to the “command of a sovereign.”1
Although in practice, all over the world, laws are made and brought into force through political power, a number of eminent jurists have felt it necessary to carry out academic research on the principles of law. Their quest, however, has led them no further than the conclusion that, in this matter, arriving at an agreed upon criterion is a sheer impossibility. The reason is that the aim of the quest calls for the determination of legal norms on the basis of human values. Scholars are agreed that this discovery of values is not possible by purely rational methods, and constitutionalists have not even found the correct structure within which to frame the laws they propose. They may be agreed that there are certain fundamental values which they feel it would be desirable to incorporate in the law, yet, try as they may to do so, they find that while some values may be maintained, there are always others which elude them. It is rather like a man trying to weigh five frogs up with five others. He gathers five frogs on one end of the scale. Then he turns his attention to the other five. In the meantime the first five jump off. And so it has happened with all our efforts to frame a perfect set of laws. The establishment of one set of laws has led to the forfeit of others. There is no end in sight to our predicament. The only ‘solution’ that western civilization has found, says, W. Friedmann, is to “keep wavering from one extreme to the other.”2
One latter-day extreme which we have reached is the sanctioning or repeal of laws according to whether they find favour with the public or not. Some laws, in spite of being ethically and academically sound, have been abandoned simply because people did not want them. Alcohol, for instance, was prohibited for some time in the U.S.A, but this law was eventually repealed because of public pressure. The death sentence in Britain was commuted for similar reasons, and homosexuality has had to be legalized despite opposition from judges and other responsible members of society, who recognized it for the evil it was.
Gustav Radburch (1878-1949) observes that the desired law can only be adopted by concession, and not for the reason that it is ‘scientifically known’. Radburch’s views are not an exception, and on this basis a permanent school of thought had come into existence known as the Relative School of Thought, according to which, “absolute judgements about law are not discoverable.” What the law seeks relates directly to human values, and that is precisely where the human intellect has failed to find a universal solution. Yet man’s instincts about right and wrong are so strong that neither the mechanical philosophy of the eighteenth century nor the utilitarian Russian system could destroy them. They are so deeply rooted in human nature, that even the Russians, who have had such a prolonged opportunity—extending over half a century—to mould human beings to their concepts in their theoretical workshop, have not been able to extirpate them, and western countries are still faced with the dilemma that even after an interminable struggle on the part of their best brains, they have wholly failed in their quest after an agreed criterion. The progress of science is making it more and more evident that we live in a world where values have no objective status.
The task of inquiry into the principles of law began, according to historical records, with Greek philosophers, one of whom was Solon (c. 638-558.), a renowned Athenian legislator. The most famous ancient book in law is by Plato (427-347 B.C.) and the legal profession had its beginnings in Rome around 500 B.C. Up till the 15th century, however, law was considered a part of theology. It was in the sixteenth century that the new trend developed which finally separated law from religion. It still, however, remained a part of politics. It was only in the 19th century that legal philosophy was separated from political philosophy, and jurisprudence was developed into an independent branch of knowledge, thus becoming a subject for specialization.
The ancient philosophers derived their legal principles from certain axioms, which they called natural rights. After the 16th century, the intellectual revolution of Europe demonstrated that these ‘axioms’ were actually only suppositions for which there existed no rational basis. Individual freedom subsequently came to be established as the greatest good, which could provide the basis for forming laws. But the consequences of the industrial revolution showed that, given individual freedom as the summum bonum, it leads us only to the exploitation of humanity, and to anarchy. Then the social good came to be considered the highest good which could provide guiding principles for legislation. But when this concept was first carried into effect it led to the most horrific political repression, in the name of public ownership. High hopes had indeed been held out that this new social order would guarantee greater justice for individuals, but a long experiment revealed that not only did the system of public ownership—being an unnatural system—produce violence, but it was also an inhibiting factor in human endeavor. The country where the effects of this policy could be seen on the largest scale was the U.S.S.R., where one of the first departments to come under the influence of this “ideal” was that of agriculture. Ever since the Bolshevik revolution of 1917 there had been continual attempts in Russia and in other communist countries to collectivize agriculture, and bring farming entirely under the control of the state.
The greatest thrust towards collectivization was initiated in the 1930’s by Joseph Stalin (1879-1953). It soon became clear, however, that the transition from private to public ownership would not be smooth. In order to ward off the threat of starvation, the state awarded plots averaging 0.3 hectares each, to collective farmers. These plots were to be farmed privately, in order to augment the farmers’ income and ensure that they were not swamped by the wave of sudden transition from individual to collective farming. This was considered as a “temporary evil”, a concession to necessity, which would be disbanded once the legacy of the previous economic system disappeared.
Far from being a temporary evil, however, such measures proved to be a permanent part of the economic situation. It is always painful for man to be torn away from his natural environment, and this was no exception. An estimated 5.5 million people died of hunger and related diseases when they were forced into state and collective farms on Stalin’s orders.
But an even more conclusive indictment of the state-owned system of agriculture is the fact that despite massive investments in the public sector, the private sector continues to flourish in the Soviet Union. Thousands of private farmers own small plots of land in Georgia and central Asia. According to a November 1984 article in Questions of Economy, a monthly journal published by the Academy of Sciences, Moscow, plots and small holding account for 25% of total agricultural production in the Soviet Union. More than half the nation’s potatoes, and roughly a third of its meat, eggs and other vegetables are produced privately. These figures are even more astounding when one compares them to the proportion—just 2.8%—that private plots constitute of all the farm land in the country.
The prices that privately-grown vegetables fetch in Moscow central market make a mockery of the communist ideal of free food for all. According to a Reuter report from Moscow, dated December 28, 1984, tomatoes from Georgia were fetching 15 roubles a kilo on the Moscow market. Cauliflowers from central Asia were going for 12 roubles a piece. Muscovites complain about the high prices but it is a question of paying them or going without vegetables:
While Muscovites complain at the swarthy ‘millionaries’ from the South whose big houses and flashy cars are legend, without them fruit and vegetables would be hard to find at all.3
All this goes to show that the communist state has failed to provide people with their basic needs of life, let alone provide them free of cost. People have to fall back on the private sector for elementary provision. The private sector continues to outstrip the public sector, despite the advantages, which the latter enjoys under the patronage of the communist state. Even Russian leaders, faced with the reality that the state alone simply cannot meet the nation’s needs, have admitted the importance of the private sector. State planning chief Nikoli Baibakov told the latest session of Soviet parliament: “Economic leaders should devote more attention to giving help to collective farm workers in managing their private plots.”
Thus communism had done a complete U-turn since the days of Stalin when complete collectivization was considered the ideal. Now there is a grudging acceptance of the inevitability of private enterprise, and the need to assist it. It is not very difficult to see why the system of private enterprise should be so resilient in face of encroachment by the state. It is because private enterprise is not a man-made system; it is an integral part of human nature, and efforts to change human nature are doomed to failure.
It had thus emerged that while excessive individual liberty could be detrimental to society, totalitarianism left the individual helpless and suppressed with his material needs uncatered for. The new man-made laws had certainly not produced justice for all, and while the latter half of the twentieth century has seen attempts to reconcile the demands of the individual and society, this experiment likewise seems to be leading nowhere. Indeed, what man so urgently requires is not one experiment after another, but an eternal law, applicable to all peoples, all situation and valid for all times. But human reasoning, when not underpinned by religion, leads us in exactly the opposite direction. As Kohler states quite unequivocally in, The Philosophy of Law, “Here there is no eternal law. Inevitably, the very law that is suitable for our age cannot be suitable for another. All we can do is make an effort to provide every culture with a suitable legal system. Something which is beneficial for one culture might be harmful for another.”
This concept takes away all stability from the philosophy of law. The idea that people must have a law which suits their own particular culture is one that leads human thought to blind relativism. Bereft of any foundation, it is a concept, which may controvert all basic human values.
The result of all this is that we are back where John Austin left us, with no clear idea of what justice is, or how it can be defined. Centuries of investigation and research have failed to provide mankind with a set of clear principles on which to base his laws. As G.W. Paton says: “What are the interests that a perfect legal system has to protect? This is a question that has to do with values and comes within the scope of legal philosophy, but we require more help from legal philosophy in this matter than philosophy seems prepared to give us. Consequently we have been unable to come up with an acceptable scale of values. In fact, only in religion we find such values, but religious dogmas are accepted on faith or intuition, not on the basis of rational argument.”4
In the same work he later remarks (p. 109), “The Orthodox Natural Law Theory based its absolutes on the revealed truths of religion. If we attempt to secularize jurisprudence, where can we find an agreed basis of values?”
In ancient times, religion had a major role to play in the framing and enactment of laws. On this, the legal historian, Sir Henry Maine, has this to say. “From China to Peru, we can find no written constitutional system of government that was not, from its very inception, tied up with religious rituals and devotion.”5
In the face of the vacillations of philosophers, legal experts and psychologists, modern jurists having stated quite finally that “a purely logical interpretation of legal rules is impossible,” we must necessarily turn to the precision, stability and universality of revealed law. This had been perfectly preserved in its original authentic form in the Quran, the holy book of Islam, which asserts that revelation from God is the only true source of law. It clearly states that there is a God of this universe, who has revealed His law to His messenger. This law is the most correct set of laws for man, on the basis of which further laws can be formed by Qiyas, i.e. the analogical reasoning of the learned based on the teachings of the Quran, Hadith and Ijma (the unanimous consent of a council of divines) and by Ijtihad, i.e. by logical deduction on a legal or theological question by a religious scholar. This does not involve digression from the basic principles and, as a method of attaining to a certain degree of authority for the purpose of inquiring into the principles of jurisprudence, it has been sanctioned by the Traditions. The word Ijtihad literally means ‘extortion’ and it is interesting to see how it applied to an actual situation in the time of the Prophet. When Mauz bin Jabal was on the point of leaving for Yemen to take over as a governor of that province, the Prophet asked him how he would judge matters. “With the help of the Quran.” was his reply. The Prophet then asked him what he would do if guidelines were not to be found in the Quran. Muaz replied that he would consult the Sunnah, or sayings and deeds of the Prophet. “And what,” the Prophet asked,” if you do not find the necessary guidelines in the Sunnah?” “Then,” said Muaz, “I will exercise my own judgement to the best of my ability.
I am prepared to admit that making claims about the effectiveness of Qiyas and Ijtihad is, from the academic point of view, a matter of great complexity. But I must stress that the reason for this complexity is not inherent in the law itself, but in the limitations of the human intellect. Fortunately I am supported in this by modern science, which makes it clear that there is a great deal more to the universe than can come under our direct observation, and that what is not knowable is much greater and more significant than that which is actually known. American Professor Fred Berthold very simply, but very profoundly sums up the philosophy of logical positivism: “The important is unknowable, and the knowable is unimportant.”
In the nineteenth century, it was supposed that man was heading towards absolute reality, although at that time it was actually even further from his grasp than it is today. But, at least it was felt that man was sure to discover it one fine day. Now the scientists of the twentieth century tell us, under the banner of positivism or operationalism, that such a supposition was entirely wrong, as science can not tell us about ultimate reality or ultimate good. Sir James Jeans in his book, The Mysterious Universe, makes the point that “our earth is so infinitesimal in comparison with the whole universe, we, the only thinking beings so far as we know, in the whole of space, are to all appearance so accidental, so far removed from the whole scheme of the universe, that it is a priori all too probable that any meaning that the universe as a whole may have, would entirely transcend our terrestrial experience, and so be totally unintelligible to us” (p.112). Existentialism too convinces us that man, with his limitations, does not know how to discover a norm, which is beyond him.
“Man is an ethical animal in a universe which contains no ethical element.” This is an often-quoted statement of Joseph Wood Krutch (1893-1970) who writes in his best-seller, The Modern Temper, that no matter how great an effort a man makes, the two halves of his soul can hardly come together. And he does not know how to think as his intellect tells, or how to feel as his emotions tell him. And thus in his ruined and divided soul, he has become a laughing stock.”
In this, Krutch is in error. And this is because he has stepped out of his domain. The basic point that I feel needs stressing here is that what has been proved is not that values do not exist, but that man is not capable of discovering them. In the book, Man the Unknown, Dr. Alexis Carrel has shown that the question of values requires complete acquaintance with the different branches of knowledge, but that owing to man’s limitations, this is an impossibility. He has even rejected the idea of a committee of experts reaching any sound conclusions because while “a superior art comes into being by one mind, it has never been produced by an academy.”
The fact that only partial knowledge has been granted to man is a reality which must be accepted. It is a fact supported by modern science, particularly since the time of the First World War, that man is subject to certain biological and psychological limitations and cannot, therefore, apprehend all facts through his senses. To borrow Locke’s phrase, “the real essence of substances” is forever unknowable. Even Einstein advocated scientific contemplation, and not just observation, if the more profound aspects of the universe were to be understood. Einstein’s view is thus summed up by a colleague:
“In dealing with the eternal varieties, the area of experiment is reduced and that of contemplation enhanced.”
Agreement has now been reached that absolute reasoning can apply only to fields of research which, according to Bertrand Russell (1872-1970), concern ‘Knowledge of things’. ‘Knowledge of truths’ is a separate field of study and, in this, direct argument is impossible: certainties cannot be arrived at. We can only attempt to arrive at probable judgements. This is not limited only to non-material facts, but to many things which fall into the category of the material, like light, or the interpretation of gravity.
I venture to assert at this point that the basis of judgement provided by modern knowledge is indubitably in favor of revealed law.
The notion of revealed law presupposes that there is a God of this universe, and this is obviously not unintelligible to man, for most of the great scientists have believed in God in one form or the other. Newton (1642-1727) saw a ‘divine hand’ in things which caused the movement of the Solar System. Darwin (1809-1882) considered a ‘creator’ necessary for the origin of life. There was a ‘superior mind’, observed Einstein (1879-1954) which manifested itself in the universe. Sir James Jeans (1877-1946) was led by his studies to the conclusion that the universe was a ‘great thought’ rather than a ‘great machine’. According to Sir Arthur Eddington (1882-1944), modern science was leading us to the reality that ‘the stuff of the world is mind-stuff.’ To Alfred North Whitehead (1861-1947) the body of information obtained through modern research proves that ‘nature is alive.’ So far as revelation is concerned, however, I admit that from the purely academic point of view, this is a very complex belief, not being one which is verifiable. But we do have, within the totality of our experience, a body of facts from which it can be inferred that revelation is reality. Modern methodology supports the idea that inferred facts can be as certain as observed facts. The importance of our argument is not, therefore, diminished, by stating that it is the result, not of observation, but of inference.
In the nineteenth century, the principle of causation was considered to be the alternative for the Creator. But in the present century many events have come to the notice of science, which are not explainable in terms of the common principle of material causes. For instance, all efforts have failed to explain the disintegration of the radium electron according to known laws. It has even been said by scientists that no one can be absolutely certain which piece of radium will disintegrate at which point of time. As one scientist put it, “It may rest on the knees of whatever gods there be.”
Animal life too has its inexplicable aspects. It has been proved that animal instincts are innate and not an acquisition. Our proofs do not, however, tell us why this should be so. The bee makes each section of its honeycomb octagonal. It was not taught in a training center about which particular geometrical figure would be the most appropriate for its purpose. It is not, so far as we know, even conscious of the significance of this shape. Yet it constructs mathematically, as if it had been commanded to do so. Says the Quran:
“And thy Lord inspired the bees, saying: Choose thou habitations in the hills and in the trees and in that which they thatch” (16:68).
There are innumerable such instances which show the probability of there being some consciousness outside things which instructs them as to their mode of living.
Sir Arthur Eddington has asserted that the modern quantum theory is a scientific affirmation of revelation. This statement of the Quran—”And He inspired in each heaven its mandate” (41:12)—is perhaps far more understandable to the 20th century man than it could have been to the 7th century man at the time when Quran was revealed.
If we admit that the source of the laws of nature that govern everything from the stars and planets to the biological aspects of human life, is the revelation which is received by everything from the universal consciousness, we have less difficulty in accepting the parallel belief that, for the psychological part of man too, laws must stem from that same external consciousness.
From the purely rational point of view, it can quite rightly be said that the basis of this argument is inference. In fact it has been proved that man’s mental make-up is such that he cannot escape inferential argument. His only alternative is scepticism, which takes him nowhere.
The time has come to accept the fact that we are just not able to formulate laws on our own. There is no point in continuing in this endeavor, for our efforts will achieve nothing unless we have recourse to divine guidance. As W. Friedmann puts it, religion provides us with a uniquely true and simple framework within which we can formulate a perfect concept of justice.6
The Quran stresses the reason for man’s incapacity to frame laws:
“They are asking thee concerning the Spirit. Say: The spirit is by command of my Lord, and of knowledge ye have been vouchsafed but little” (17:85).
It then claims that, for man’s guidance, God has made a revelation of His laws, and to support this claim, it challenges anyone who wills to produce a book of similar quality. “And if ye are in doubt concerning that which We reveal unto Our slave (Muhammad), then produce a chapter of the like thereof, and call your witnesses beside God if ye are truthful” (2:23).
“Say: Verily, though mankind and the Jinn (a race of spirits) should assemble to produce the like of this Quran, they could not produce the like thereof though they were helpers one of another” (17:88).
Over the last 1300 years there have appeared on the scene innumerable enemies of the Quran and Islam who could easily have prepared a book like the Quran in Arabic in answer to this challenge, and indeed, some of them did attempt to do so. But history shows that from the time of Musaliema (d.633) and Ibn Muqaffa (724-761) to the Crusades (1095-1271) no one, including Christian Orientalist has succeeded in such an attempt. More astonishing is the fact that the legal principles laid down by the Quran so many centuries ago have retained their veracity till today. It has of course happened that revealed laws have been rejected in favor of man-made laws, but in the course of an experiment which lasted over 200 years, the man-made laws have proved a failure, and enlightened opinion is again veering back towards revealed law as being eternal in character. This particular quality can only be grasped when we believe that its source lies in an Eternal Mind rather than in a human mind.
If we have not known where to allocate the power to make laws, it is because, as true religion tells us, it is God’s prerogative and His alone to do so. He is the true Sovereign. No man has the right to rule over others and order their lives. Only God—man’s Creator and natural Lord—has that power.
According to revealed law, freedom of the individual is subject to divine command.
They ask: Have we any part in the cause? Say: The cause belongeth wholly to God (3:154).
The Renaissance—the great intellectual revolution which took place in Europe in the fifteenth and sixteenth centuries—regarded this concept of freedom as little better than slavery. It proclaimed that freedom was the greatest of human values. Since the time of the French revolution till today, this new concept of freedom has held sway. But the undeniably negative end-results have now brought scholars to the point of declaring this concept meaningless. Professor B.F. Skinner, the well-known American psychologist, who developed the theory of programmed and social learning based on conditioning, is now of the view that “we can’t afford freedom.” Contrary to the opinion of 18th and 19th century thinkers, Skinner says that freedom is not the summum bonum. What man needs is not unlimited freedom, but “a disciplined culture.” This reversal in human thought is an indirect admission of the eternal character of revealed laws.
Much heated controversy centres nowadays on the status of women vis-à-vis men. The emergence of women from their homes in order to seek equality has led to severe clashes in many fields and very often to their own degradation. A great deal of stress and strain could be avoided by simply bowing to revealed law, which assigns men and women different and separate spheres in practical everyday matters, and places men in a position of dominance. ‘Men have authority over women….”7
This principle was latterly rejected by man-made law as totally wrong and unjust. But the experience of one hundred years has shown that, in this matter, revealed law is closer to reality. In spite of all the so-called successes of the women’s lib movement, man, even today still enjoys the position of the dominant sex in the civilized world. The champions of women’s emancipation have all along asserted that the difference between men and women was a factor produced and perpetuated by social environment alone. But in modern times, this issue has become the object of in-depth studies in various interrelated fields, and it has been demonstrated that the difference in the sexes is explained by biological factors. Harvard University’s Professor of Psychology, Jerome Kagan, concludes that, “Some of the psychological differences between men and women may not be the product of experience alone, but of subtle biological differences.”
An American surgeon, Edgar Berman, says: “Because of their hormonal chemistry women might be too emotional for positions of power.”8
Dr. Alexis Carrel goes even deeper into the matter:
The differences existing between man and woman do not come from the particular form of the sexual organs, the presence of the uterus, from gestation, or from the mode of education. They are of more fundamental nature. They are caused by the very structure of the tissues and by the impregnation of the entire organism with specific chemical substances secreted by the ovary. Ignorance of these fundamental facts has led promoters of feminism to believe that both sexes should have the same education, the same powers and the same responsibilities. In reality woman differs profoundly from man. Every one of the cells of her body bears the mark of her sex. The same is true of her organs and, above all, of her nervous system. Physiological laws are as inexorable as those of the sidereal world. They cannot be replaced by human wishes. We are obliged to accept them just as they are. Women should develop their aptitudes in accordance with their own nature, without trying to imitate the males.
In the U.S.A., the women’s ‘lib’ movement may be very powerful, but its supporters have now begun to feel that the real obstacle in their way is neither society, nor law, but nature itself, for the difference in male and female hormones has existed from the very first day they opened their eyes on this world. It is natural that women should be subject to the limitations of biology, but now enthusiastic supporters of women’s ‘lib’ hold nature ‘guilty’ and say that nature is ‘cruel’. They have even asked for the genetic code itself to be changed with the help of the science of eugenics in order to produce a new species of men and women! The American women’s slogan, “Make policy, not Coffee!” tells us a great deal about their worldly aspirations, but, pushed to their logical extreme, these aspirations have culminated in a distortion of the very nature they hold culpable. This shows, quite clearly, that revealed law is more in consonance with nature than man-made law.
This social system which has ignored the distinctly separate roles of men and women, has been beset by great evils, not the least of which is the disappearance of the notion of chastity which has gone hand in hand with the rise in promiscuity. The whole of the younger generation likewise seems affected by various moral and psychological ailments. Today it is common for an unmarried girl complaining only of headache or insomnia to be told by her physician that she is pregnant. The free mixing of men and women has rendered the concept of purity meaningless. As a western doctor so pertinently says, “There can come a moment between a man and a woman when control and judgement are impossible.” Marion Hilliard, an eminent doctor, severely criticizes free intercourse. She writes: “As a doctor, I don’t believe there is such a thing as a platonic relationship between a man and a woman who are alone together a good deal.” She goes on to say. “I cannot be so unrealistic as to advise young boys and girls to stop kissing. However, most of the mothers do not tell their daughters that a kiss simply stimulates the desire rather than satisfies it.’9
By subscribing to this view, she indirectly admits the truth of religious law, yet finds it difficult to regard the initial manifestations of free intercourse as illegal.
Despite so may arguments in favour of revealed law, there are still a number of very vexed questions which arise in connection with it, and in fact with any established system of law. One of the most important of these is whether law is relative in its entirety, or whether there is some part of it which is constant in nature. Or, more simply, can a law which applies today be altered in the future? And are there any parts of the law that are not subject to change? There has been much intellectual foraging into this question, but no one had arrived at any concrete conclusions. In principle, jurists are at one on the need in legal systems for a workable alliance of constancy and flexibility, permanence and change. Certain basics must remain the same, while there inevitably be certain peripheral elements that can be altered to suit changing conditions. But how is a balance to be maintained between the two? Justice Cordoza of U.S. maintains that a philosophy reconciling the conflicting demands of permanence and change is one of the most urgent needs of law today, (The Growth of Law). As Roscoe Pound puts it in his Interpretation of Legal History (p. 1), the law should be stable, but not rigid, and there has to be a balance between the two forces. Philosophers may have made mammoth efforts to achieve this balance, by reconciling the dual necessities of stability and flexibility, but recent history has shown what lopsidedness can be the result. The long established idea that punishment should be inflicted, not only to deter the offender from committing further criminal acts, but to discourage others with similar propensities, was one of the most time-honored and hallowed traditions, and its being tampered with has yielded highly dubious results.
The first notable person who advocated mitigation of the punishment of criminals was Cesare Beccaria (1738-1794), an Italian expert in criminology. A great deal of research has subsequently been carried out in this field, the upshot being that many experts have come round to the view that the committing of a crime is not an “intentional event”, and that the underlying causes must be looked for biological structuring, mental disease, economic pressures, adverse social conditions, etc. Therefore, instead of the criminal being punished, he should be ‘treated’. These ideas proved so influential that more than three-dozen countries abolished the death sentence in the case of moral crimes. (It was still, however, considered necessary in the case of political and military crimes to retain the death penalty as a deterrent.) This approach to crime may have seemed more human, but it did not have the desired effect.
Since the Second World War, crime has actually been on the increase, all the ‘treatment’ schemes having failed to restrain people from evil. The death sentence has even had to be reintroduced in places like Delaware and Sri Lanka where it had supposedly been abolished for good. It was only when on the 26th September 1959, Sri Lanka’s Prime Minister, Mr. Bandara Naike himself was brutally murdered, that the lawmakers came to their senses. Immediately after the funeral rites, an emergency session of the Sri Lankan Assembly was called and, after a 4-hour discussion, the decision was taken to reintroduce the death sentence.
Legal experts everywhere are now coming back to the view that punishment, to be effective, must be severe. A man who knows that he risks a death sentence if he kills someone, is less likely to perpetrate this hideous crime than one who feels that he is only going to be subjected to psychiatric treatment. This was something which was understood and accepted many centuries ago when Islam prescribed the death sentence for willful murder. Even greater was its realism in making it permissible for the heirs, or next of kin of the deceased person to forgive the murderer on the acceptance of blood money. Although the death penalty was meant to extirpate evil from the very roots, it was recognized that measures had also to be taken to prevent the destitution of the surviving members of the deceased’s family. In special cases the state has the right to raise a sufficient amount of money as compensation.
Human perceptions had obviously been at fault in determining which laws should remain inviolable. To establish the inviolability of a law, there must be proof of its permanent effectiveness and relevance. No such proof can be offered by purely human jurisprudence. A law that people of one age considered immutable might well be called in question by people of a later age.
Divine law is the only answer to this problem, for we can derive from it all those basic principles upon which our legal systems are permanently to rest. Divine law addressed itself specifically to basic issues, remaining silent on secondary matters. In this way, it defines what part of the law is inviolable, and what part may be subjected to changes. What makes this definition take pride of place over the others is the fact that it comes directly from God. It is for this reason that we can have full confidence in its validity. In providing a solution to this problem, divine law has conferred the most immense of benefits upon humanity. No equivalent alternative could ever be fabricated by man himself.
If we consider some of the alternatives to divine law which have emerged over a period of centuries, we see that, if they have certain strength, they also have inherent weaknesses. In every constitution, there are some deeds that are classified as “crimes”. As there has to be some sound cause for criminalizing an action, human law has defined such actions as anything which disturbs the peace, or interferes with administration of the realm. Any action, therefore, which does not fall into this category cannot be made illegal by society. In what light then are we to consider adultery? It cannot be defined as illegal in terms of conventional law. Yet adultery causes massive corruption in society. Other major problems are the ensuing illegitimacy of the children of such unions, and the weakening of the bonds of marriage. Unchecked, it fosters a frivolous, sensual attitude to life, which inclines people to go to any lengths to achieve what they desire. The permissiveness of society opens up all kinds of avenues to such evils as theft, deceit, kidnapping—even murder. Yet even the degeneration of public standards which results from open fornication cannot lead to its being illegalized. For as long as force is not used, and these acts take place between consenting adults, society has no grounds on which to frame laws prohibiting them. It is not, in fact, adultery, which is frowned upon, but the use of force, or other compulsions. It is felt that, just as it is a crime to take someone’s property by force, so it is a crime to wrest someone’s honour from him by force. Conversely, just as one person’s property can be legally transferred to another provided both parties agree to the transaction, so when both parties agree to commit adultery, society sees nothing wrong in this. In fact, in cases of mutual consent, the law actually takes the side of the adulteress, and if a third party attempts to intervene, it is he who is regarded as the criminal.
Islam has solved this problem by sanctioning polygamy, a practice which has been severely criticized by modern civilization as uncivilized. But experience has shown that this Islamic principle is in conformity with human nature. After all, if the doors of legalized polygamy were closed, it would merely open the floodgates of illegal prostitution.
The U.N.O. Demographic Report of 1959, shows that the modern world is producing more children out of wedlock than ever before, the illegitimacy rate in Western countries being as high as 60%. In Panama, for example, three children out of four are born without the parents having had either a civil or a religious ceremony. Latin America, with an illegitimacy rate of 75%, tops the list. This same report shows that Muslim countries have almost no illegitimate children. In Egypt, which has been most exposed to western influence, there are less than one percent. How is it that Muslim countries have not succumbed to this modern ‘epidemic’?
The editors of the report say: “Since polygamy is in practice in Muslim countries, the business of illegitimate relations is not flourishing. The principle of polygamy has saved the Muslim countries from the storm of the time.” (From an article, ‘More Out than In’)10
Human lawmakers have likewise had difficulty in finding grounds for the prohibition of alcohol. Eating and drinking are looked upon as fundamental rights, not to be tampered with by law. Society does not see anything wrong with drinking liquor nor, indeed, with becoming intoxicated. Only when one disturbs the peace under the influence of drink, say, by fighting with and abusing others does the law step in. Similarly, those who drive in a drunken condition are punishable by law because they are liable to harm others. It is not then the practice of drinking which is be punished, but the harm which is done, or could be done to other people. Yet, not only alcohol is harmful to the health, but it is also a great drain on one’s financial resources. Whole families can be reduced to destitution by one man’s alcoholism. By paralyzing the finer instincts alcohol makes it easier for a person to commit crimes such as murder, theft, rape and robbery. In fact, it so reduces one’s sense of propriety that one becomes little better than an animal. Society is fully aware that such things are happening, but is not able to prohibit alcohol by law. Why is this so? Because it cannot find a solid justification for clamping restrictions upon what people eat and drink.
Divine law, being an expression of the will of God Almighty, provides a solution to this problem. The very fact that its origin is God is sufficient reason for its application in the world of man. It does not require any further justification. God is All-knowing and All-seeing. When He prohibits something, it is because, quite simply, it is bad for man, and what ever is bad for man should be considered a crime and at all times eschewed.
A certain deed may be decreed an offence and, therefore, punishable by law, but it is not enough for the words of prohibition to be inscribed in the statute book. For something to be considered an offence, and a punishment attached to it, it has to be viewed with general abhorrence by society at large. Anyone committing an offence can then be made to feel that he is doing something wrong, for his action will be condemned by the whole of society, and law-enforcement authorities will then be able to apprehend him with full confidence; judge and jury will be in a position to deliver their verdicts, confident that they are punishing one who is deserving of punishment.
What is an offence in the eyes of the law must be a sin in the eyes of men. As the historical school of legal thought maintains, law making can only succeed when it complies with the inner convictions of the generation by whom and for whom the law is made. A system of law, which does not do so is bound to fail.11
This statement may not constitute a valid argument in support of that particular school of legal thought, but it does contain an element of external truth.
Moreover, for the law to be effective, there also have to be forces at work in society, which discourage crime. Apart from punishment, there has to be prevention, for the activities of law enforcement bodies in themselves do not necessarily inspire sufficient fear to act as deterrents. This is largely because, all too often, punishment can be eluded by resorting to bribery and corruption. Anyone who is confident of being able to escape in this way will pay no heed to the law or its enforcement.
In divine law lies the answer to all the shortcomings of man-made law. We have seen how an atmosphere in which people are encouraged to uphold the truth has to be engendered in society as a whole, for the penal code cannot, merely by its existence, induce correct attitudes. This has to originate elsewhere—from a source effective enough to ensure that, in the last analysis, anyone who perjures himself will not escape self-recrimination. In a Western Circuit Court in England, there is a stone which commemorates a unique event which took place there many years before. A certain witness took the oath in the normal way, then added: “May God take my soul here and now if what I say be false.” And he fell down dead on that very spot.12
Other events of this nature have also occurred, providing poignant reminders of the much direr punishment that awaits people in the next world. If people in their heart of hearts dread such retribution, they will take very good care to do nothing which will bring it down upon their own heads. A common consciousness of what is wrong must emerge in society, something which does not and cannot stem from legislation alone. This can only come from religion, which gives us not only a law, but a faith to go with it. Through this faith, we become aware that it is One who is omniscient who has made the Law. Knowing everything that we do, He has a record of all our thoughts, words and deeds. After death we shall be brought before Him, at which time all will be laid bare. We may use worldly resources to escape worldly punishment but there will be no such escape route when we stand before God. There will be no escaping the infinitely greater punishment that awaits us in the next world.
An incident, which occurred during the reign of King James I of England, is a good illustration of how indispensable religious faith is to justice. King James has proclaimed himself an absolute monarch, which meant that he could decide cases himself, without having recourse to courts of law. The Lord Chancellor, Lord Coke—a religious man, famed for the long hours he spent in worship—cautioned the King that he had no right to take final decision, and that all cases should be decided in courts of law. “It is my opinion,” the monarch countered, “and I have heard as much from others, that your laws are based on common sense. Tell me, do I have less of that than judges?” “There is no doubt of your masterly intellect and statesmanship,” said the Lord Chancellor; “but one has to have much practical experience and specialist knowledge in order to dispense justice.
Only then can one wield the golden scales of justice, by which the rights of the people are weighed, and by which even the sovereign’s rights are safeguarded.” “What, am I too subject to the law?” demanded an extremely incensed King James. “To say so is treason.” Quoting Bracton, Lord Coke replied: “The monarch is subject to no man; but he is subject to God and the Law.”13
The fact is, when we subtract the divine element from justice, we are left with no logical grounds for saying that the monarch (or anyone else for that matter) is subject to the law. The same goes for groups of individuals. When the law has been devised by a number of human minds; when it is by their sanction that laws are exacted; when they, as legislators, can annul the law or maintain it at will: can there be any basis on which they themselves may be subject to that law?
When man himself is the law-maker, he is entitled to assume the powers of lord and sovereign. He himself is God. He himself is the law. How is it possible then that he be made subject to the law?
The principle of all men being equal is accepted in modern democratic countries, but in practice, all are not equal in terms of their own legal systems. In India, for instance, it is not as easy to initiate legal proceedings against the president, a provincial governor, a minister or a senior officer, as it is against an ordinary citizen. Clause 361 of the Indian Constitution protects the president and provincial governors from prosecution without the permission of parliament, and the government has to give its clearance if cases are to be brought against ministers. Furthermore, Clause 197 of the Indian Ordinances decrees that no judge, magistrate or civil servant may be dismissed from his post without the prior permission of the central or provincial governments. In case of corruption, there can be no hearings in court until the central or provincial government—whichever the employer—grants permission. In other words, if you want to take a prominent politician or administrator to court, you to have have his permission first.
This is not so much a fault of Indian law as a fault of human law, and it is to be found wherever human beings make their own laws. Only when divine law is followed is it possible for each and every individual to be equal in the eyes of the law. There is no difference then even between the ruler and his subjects. Both can be prosecuted with equal ease, for neither is the law-maker. The law-maker is God and all human beings are equal before God’s law.
For centuries, jurists have been searching for just, equitable principles on which to base human laws. When one considers how successful man has been in discovering physical laws and how dismally he had failed in finding social laws, it becomes evident that something is very far wrong. The world’s first photograph was taken by a French scientist in 1826. It took him eight hours, and all he was attempting to photograph was the verandah outside his room. Nowadays photography has made such great advances that an automatic camera can take more than two thousand photographs in a second. In the length of time it took to take the first photograph, sixty million photographs can now be taken. At the beginning of the century, there were just four motor cars in the U.S.A. Now, over 100 million motor cars ply the thoroughfares of that country. Our technology is now so sophisticated that, if there is any minuscule alteration in the rotation of the earth, leading to the shortening or lengthening of the day by even a millionth of a second, our observatories will at once detect it. The sensitivity of modern apparatus is such that, if just two words are added to a thirty-volume encyclopaedia, the increase in weight of the added ink will be exactly recorded. How great and how wonderful are the advances of man in the discovery of physical laws. But as far as social laws are concerned, he has not advanced so much as one inch.
It is not that man has not strained every fibre of his being to do so; he has, in fact, made as many herculean attempts to discover viable social laws as he has to discover the secrets of the universe. The truth is that, hard as he may try to find a just basis for the laws governing his society, this will always elude him, for it is some thing which it is beyond him to find. The limitations of the human mind prevent it from grappling successfully with the infinitude of facts which it would be necessary to apprehend and systematise if truly just and equitable laws were to be enacted. We are forced to come back to the tenet that there must be a Mind vastly superior to the human mind, which is the origin of all truth. We must likewise come back to the fact that revealed law is unsurpassable in the permanence of its justice.
Notes
1. G.W. Paton, A Textbook of Jurisprudemce.
2. W. Friedmann, Legal Theory, p. 18.
3. The Muslim, Islamabad, December 29, 1984.
4. A Textbook of Jurisprudence, p. 104.
5. Early Law and Custom, p. 5.
6. Legal Theory, p. 450.
7. Quran, 4:34.
8. Time, March 20, 1972, p. 28.
9. Reader’s Digest, December 1957.
10. The Hindustan Times, 12 September, 1960.
11. See A Textbook of Jurisprudence, p. 15.
12. Sir Alfred Denning, The Changing Law, p. 103.
13. Ibid, pp. 117-18.
