Global Intifada

When I say “Islamic” conception of justice, as opposed to Western, I’m referring to the formalized opinions of experts in Islamic theology. For Ahl us Sunnah waal Jam’ah, this would refer to the Atharis, as well as the two schools of Kalam compromised of the Asharis and the Maturidis. For Shiat ul-Ali, this would refer to the aqeedah developed by their scholars that is similar to the Mu’tazila. Clearly, the claim that ‘there’s no distinction between Western and Islamic conceptions of justice’ is merely a claim that requires substantion. Although their may be some overlap in these terms, they have different roots. The underlying roots, by which rational and moral judgments are made, in Islam is revelation. Rational arguments may be persuasive, but not mandatory. Conversely, Western philosophers don’t take revealed texts as the exclusive source of rational and judgments. Revealed texts is persuasive, not mandatory proof. Again, claiming that there’s no difference between Western philosophers and Islamic theologians in their conception of justice is a tautological statement in the absence of proof.

According to Ahl us Sunnah waal Jam’ah, the definition of justice can be divided between substantive and procedural justice. Substantively speaking, the ultimate source of our understanding of justice comes from Allah (subhana wa ta’ala) who has the attributes of being all-knowing, infinitely just, etc. Islamic law in this sense, adopts a legal positivist approach: laws from the creator are not in and of themselves independently just, but are just because the Creator Himself commanded it and since He is infinitely just, His pronouncements, commands, and prohibitions, are all just as well. I think the problem you’re having is that, whether you recognize it or not, you’ve adopted a sort of platonic conception of justice. Justice is not a physical property of material objects. It cannot be measured, quantified, added or subtracted in a laboratory. Things are good because God says they are good and things are bad because God says they are bad. For example, for Iblis, prostration to Adam (alayhi sallam) was an obligation. However, in the time of the Prophet Muhammad (sallahu alayhi wa sallam) to anyone other than Allah (subhana wa ta’ala) was forbidden. Prostration in and of itself is not good or bad. It was good/obligatory in the time of Iblis and it was bad/prohibited in the time of the Prophet (sallahu alayhi wa sallam). Now, the punishment for committing theft or adultery are deemed obligatory in the Shari’ah according to the fuqaha. These punishments are substantively just because they are the direct commands of Allah (subhana wa ta’ala) or the Prophet (sallahu alayhi wa sallam). Had Allah (subhana wa ta’ala) commanded Ibrahim (alayhi sallam) to sacrifice Ishmael (alyahi sallam), then this would have been just and if He commanded its opposite, it would have been obligatory as well. Now, this might seem contradictory, but the law of non-contradiction doesn’t necessarily apply to the Creator. Amongst the Asharis who wrote about this, Imam Juwawyni held the opinion that God is not subject to the dictates of the human intellect. In other words, Muslim theologians recognized that the finite human intellect, like the angels who questioned the creation of mankind in the first place, can not comprehend the will of the Creator who is all-knowing, all-powerful, and infinitely just. God is not irrational, but He is suprarational; beyond reason and comprehension. The perfect example of this is in the case of the narrative of Khidr and Musa (alaihi mus sallam). In this story, Musa tagged along with Khidr (alaihi mus sallam) in order to acquire spiritual knowledge. Khidr (alayhi sallam) (1) sunk a ship, (2) collapsed a wall, and (3) killed a child. Musa (alayhi sallam) objected to each of these because, from his perspective, they were apparently unjust. Khidr (alayhi sallam), however, had knowledge of the future as well and explained that their were reasons why he engaged in those particular actions. Musa (alayhi sallam) didn’t have knowledge of these future events and thus, his conception of justice was limited to particular temporal and spatial restrictions. The point of the narrative is that we as humans might not be able to fully comprehend why things may be prohibited or obligatory. Allah (subhana wa ta’ala), being infinitely knowledgeable, does not possess the limitations which human beings possess.

To elaborate further, the fuqaha have stated that their are various conceptions of the purposes of the Shari’ah. According to Imam Shatibi, the goals of the underlying objectives of the Shari’ah were the promotion of (1) faith, (2) property, (3) family, (4) intellect, and and (5) life. Perhaps the term “objectives” is misleading, a better term might be “rationalizations” because one does not base one’s rulings on Maqasid al Shari’ah, but one follows the methodologies laid forth in one’s usul al fiqh and maqasid is used more in areas where their is ijtehad. Of course, one can absolve a legal ruling based upon overriding concerns, but this is usually in the case of exigent circumstances, not a general practice.

For example, the consumption of alcohol diminishes control of one’s intellect. People lose control of their volition and are more prone to making bad decisions. Some times they destroy property, which impinges upon another maqasid of the Shari’ah. Other times, they may engage in fornication, and this impinges on the maqasid of promoting the preservation of the family. Other times, they may get into fights, which may result in the taking of life, another concern of the Shari’ah. The underlying reason, however, why the consumption of alcohol is prohibited is because Allah (subhana wa ta’ala) commanded it. It can be understood by rationalizing it, but the rationalization cannot supersede the literal conclusive proofs if they constitute an amr that constitutes an obligation in the absense of mitigating proof. As you can see, these things, when applied, promote harmony in society. However, the benefits from the implentation of the Shari’ah are incidental, not fundamental, to the conception of justice.

However, substantive justice isn’t the only aspect of justice that emanates from Islamic law, there is also procedural justice as well. In other words, the punishment of a crime may in and of itself be unjust even though the declaration of a particular action to be criminal is just. The perfect example of this is the punishment for adultery, which requires four witnesses that actually see the act of penetration. Unfortunately, some so-called Islamic republics or states today implement the Hadd substantively, but fail to properly understand the procedural requirements. Mufti Taqi Usmani wrote an extensive article explaining this distinction in an article where he dealt with a lot of misunderstandings that people had with the Hudood Ordinances in Pakistan. In reality, one must look at the totality of the circumstances. A Qadhi scrutinizes the reliability of each witness, whether they were trustworthy, whether they had the proper faculties to observe the crime, whether their testimony was internally consistent, etc. Furthermore, the Qadhi looks at whether the testimony of each witness was consistent with the testimony of the other witensses, whether their was any collusion, whether it was consistent with the testimony of the accused, whether it was consistent with the forensic and physical evidence, etc. Thus, the punishment of the crime in principle may is just, but the way that the crime is punished may not be.

In addition to substantive and procedural justice, there is personal justice which is treatment of members of society in a just manner. This goes in the topic of adab, akhlaq, and mu’amalat. One must treat one’s neighbors, family, elders, woman, children, indigent, sick, orphans, in a just manner by fulfilling their rights. These rights are defined by Allah (subhana wa ta’ala) and the Prophet (sallahu alayhi wa sallam).

These are the basic formulatins of justice in Islam.

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