Law, Justice And Being Realistic
AMERICA’S second President John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This perfect phrase is the fundamental concept in all constitutional governments. All governments must act according to the law and law, being the main subject of concern, must be able to regulate in order to ensure good governance.
Similarly, law functions to regulate human conduct in order for them to live peacefully in a society, to build a nation and also to create a peaceful globe. Law is also a mechanism to provide a basis for the society to function to its best level, to protect people from harm, to promote common good and to appreciate the practice of ‘agree to disagree’ among members of the society. From the Islamic viewpoint, law also functions to facilitate human being to appreciate their existence as a creation of God. In short, law helps people to feel more comfortable to live their life to the optimum level and protect the weak members of society from all kinds of injustices.
Thus, all governments must make law and conduct the legal system with the one and only aim, that is, to achieve justice.
Consequently, in order to arrive to this noble function, law must possess certain quality. If we say that the law is that metals conduct electricity, we must be clear about what constitutes metals in order for them to conduct electricity. If we say that the functions of law is to ensure good governance and to regulate human conduct or to solve human problems and conflicts, we must make sure that the law contains the criteria that would make it an effective mechanism to carry out such functions.
Consequently, law must contain certain concepts. Law for instance, must be comprehensive in nature and be responsive to the changeability of time and place.
In order to achieve this, law must be formed from corpus of rules derived from authorities, whether from fundamentals of religion or otherwise.
In this respect, all religious law and legal system claim divine sources as the highest or primary sources of the law. Being divine in nature, it is presumed that the law is comprehensive, universal and suitable to all times. These divine sources thus, form the framework containing the general doctrines and principles of the corpus of law. The divine sources also determine the fundamental features of the law.
Be that as it may, having the divine sources does not deny human reasoning in law-making and enforcement. Human reasoning is so much needed due to changeability of human conditions. This changeability forms indispensible norms that has been acknowledged and emphasised by the divine sources and accepted by jurisprudence scholars. Meanwhile, it is logical that human reasoning must be accepted as part of the norms in law-making due to the closed connection between the human being and his surroundings.
Furthermore, although the divine sources determine the fundamentals, the details to answer the practical matters or to address proper solutions to the problems according to the need of time and circumstances require human reasoning. Human reasoning however, is secondary in the sense that any rules or principles must be based on the primary sources and must not be contradictory to the primary sources. In addition, human reasoning must come from the highly credible.
Since religion is not only the law, but a way of life, law derived from the divine sources cannot detach itself from doctrinal aspirations; neither is there dichotomy between doctrinal aspirations and the reality of life. Thus, though divine, the law must be realistic in nature. The divine law must take reality into account and properly address it.
Indeed, reality is a real challenge to the proponents of divine law. In the case of Islamic law for instance, people shall always look at the Muslims who is seen as representing the Islamic doctrinal aspirations. People look at the Muslims as the benchmark of Islamic law. Islamic principles create real nexus from the highest ideals of Islamic doctrinal aspirations to the reality of the situations. Thus, all Muslims bear the responsibility to acknowledge the divine character of the law, and at the same time, to poster the rightful image of the divine nature of the law by making it consonant to the reality, that is to materialize the realistic character of Islamic law.
The experience of all legal systems clearly show that law is a dynamic instrument. Thus, differences of opinion is unavoidable. There may be differences of opinion in the interpretations of the divine sources, but we have to realise that no matter how different the interpretation on practical matters are, they must not affect the major institutions or the framework of beliefs. This is also a real challenge to the divine law.