Islamic Law in Operation

Abstract

Justice as conceived of in Islam was the privilege of the Moslem. It purported to affirm the rights of the poor and the humble but shirked any great or serious responsibility for those outside the pale of the faith. In Greek civilization two opposing conceptions of justice confront us: first, the popular conception as expressed in the tragedies; second, the philosophical conception as it was worked out by Plato and Aristotle, who, though they freed the idea of justice from the shackles of popular religion, failed to divorce justice from morality. Almost the reverse took place in Islam. Here legists brought about a partial separation between morality and the idea of justice, but they failed to disentangle justice from the fetters of religion. Their approach to the one-sided universalist conception of justice led the Greeks to identify morals with the philosophy of law and finally produced the so-called Stoic justice representing a transition toward the individualization of the Roman jurists, who borrowed the Stoic philosophy and wove it into their judicial system. Greek philosophy, however, had regarded law as impersonal in origin-a conclusion of reason and not an expression of will. Roman jurisprudence ascribed the character of law to either a conclusion of reason or an expression of will. This progressive enhancing of the volitional element finds its explanation in the importance, respectively, of the Roman emperor and the Christian God, as concepts dominating human reflection.' It is doubtful whether Islamic justice could ever have become what it is had it depended entirely upon the contents of the Koran and Tradition. Even the advent of analogical deduction (qiyds), consensus of opinion (ijmdc), the legal right of further interpreting the Koran and the Sunnah or of forming a new opinion by applying analogy (ijtihad), and private and legal opinion (ra y) would not have availed, or have been possible, but for the process of borrowing from outside sources.2 It may be desirable at this point to conceive