Islamic law

“ All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions. ”

“ Membership into the Muslim nation is open equally and without any qualification or restriction. In this sense it embodies the universalism of Islam: the nation becomes a consciousness of belonging to a religious and political community that is independent of the Muslim state ( [41] , p. 49) . While the Covenants may be interpreted as requiring only Muslims themselves—and not the actually Islamic state—to protect Christians, one can also argue that Muhammad’s role as Caliph of the ummah and his commandments outlined in the Covenants were in fact a type of “law” alongside the Qur’an and hadiths. ”

“ Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.
(B) Iraq is a country of many nationalities, and the Arab people in Iraq are an inseparable part of the Arab nation. ”

“ All branches of Islam are represented, with the vast majority of Muslims coming from a large number of other countries. At times this led to societal discord, such as local resistance to the construction of mosques or disagreements over whether Muslims may use loudspeakers in residential neighborhoods to call the faithful to prayer. There also remain areas where the law conflicts with Islamic practices or raises religious freedom issues. ”

“ Education is a state responsibility and, because no nation-wide Islamic organization exists that all states recognize as a public law corporation, the form and content of Islamic instruction varies from state to state. Organizations providing Muslim instruction in several states do not have public law corporation status. ”

“ Reiterates that self-determination is a principle of international law and a universal right recognized by the United Nations for peoples under alien or colonial domination or foreign occupation, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development, and that its denial constitutes a grave violation of human rights. ”

“ This is represented in Islam under two forms, covered by two technical terms. The one is that the legist, in spite of the fact that the analogy of the fixed code clearly points to one course, “considers it better” (istihsan) to follow a different one; and the other is that, under the same conditions, he chooses a free course “for the sake of general benefit to the community” (istislah) . Further scope of Equity Muslim law never reached, and the legitimacy of these two developments was, as we shall see, bitterly contested. ”

“ But in Muslim countries, Church and State are one indissolubly, and until the very essence of Islam passes away, that unity cannot be relaxed. The law of the land, too, is, in theory, the law of the Church. In the earlier days at least, canon and civil law were one. Thus we can never say in Islam, “he is a great lawyer; he, a great theologian; he, a great statesman.” One man may be all three, almost he must be all three, if he is to be any one. The statesman may not practice theology or law, but his training, in great part, will be that of a theologian and a legist. ”

“ There is, therefore, some reason to hope that, were Arabian thought once more supreme in Islam, its tendency would be in the direction of a wider and more liberal reading of the law, and that in time a true reconciliation might be effected with Christendom, perhaps with Christianity. The great difficulty which, as things now stand, besets reform is this: the Sheriat, or written code of law, still stands in orthodox Islam as an unimpeachable authority. The law in itself is an excellent law, and as such commends itself to the loyalty of honest and God-fearing men ”

“ Nor does this rule apply with less force to Islam than to other religions. For the first thirty years or so, while Arabia was still the centre of Moslim power, life and doctrine developed hand in hand. Thenceforward the paths diverged more and more as time advanced: the schools of doctrinal learning have troubled themselves little about the practical requirements of daily life, while on the other hand all classes of the Moslim community have exhibited in practice an indifference to the sacred law in all its fulness, quite equal to the reverence with which they regard it in theory. ”

“ On the whole the ritual commands and prohibitions of Islam do not bear with excessive hardness on the life of the Oriental, which in any case moves somewhat monotonously in fixed forms. Of the anxious scrupulosity with which Judaism discusses “clean” and “unclean,” “lawful” and “unlawful,” there are but few traces, even in the writings of the later theologians of Islam, not to speak of Mohammed himself, or the life of his followers until now.
Religion and the law of the State are not separated in Islam. ”

“ This is the nearest approach in Islam to the development by statute, which comes last in Sir Henry Maine’s analysis of the growth of law. The court guided by these Qanuns decides all matters of public and criminal law, all affairs between man and man. Such is the legal situation throughout the whole Muslim world, from Sulu to the Atlantic and from Africa to China. The canon lawyers, on their side, have never admitted this to be anything but flat usurpation. There have not failed some even who branded as heretics and unbelievers those who took any part in such courts of the world and the devil. ”

“ Even up to the present day, the Muhammadan law has failed to establish itself absolutely, even where the authority of Islam is generally predominant, and there is still a constant struggle between the adherents of the old Malayan usages and the Ḥājīs, who having made the pilgrimage to Mecca, return enthusiastic for a strict observance of Muslim Law. ”

“ The reason is, that the principles of Islamism are so very simple that they can be adapted to any degree of modification and reform, especially under the pressure of circumstances—besides, necessity knows no law, not even the Koran itself. ”

“ What in truth could they have done to change a people whose traditions have been fixed so long, whose religious passions are so intense, and whose Mohammedans, although in the minority, legitimately claim to govern the sacred city of their faith according to their code? How prevent Islam from remaining the State religion in a country where civil law and religious law are not yet plainly separated, and where faith in the Koran is the only tie by which the idea of nationality can be maintained? ”

“ The caliph Omar initiated in the 7th century a code which required Christians and Jews to wear peculiar dress, denied them the right to hold state offices or to possess land, inflicted a poll-tax on them, and while forbidding them to enter mosques, refused them the permission to build new places of worship for themselves. Again and again these ordinances were repeated in subsequent ages, and intolerance for infidels is still a distinct feature of Mahommedan law. But Islam has often shown itself milder in fact than in theory, for its laws were made to be broken. ”

“ Prophet Mohammed laid emphasis on this principle by saying that people are as equal as dents of a comb are, that no Arab claims a preference over an 'Ajami' (or a non-Arab) and no white man can claim preference over a black man except on the basis of righteous- ness and good deeds. A natural flow of this great principle of Islam and indeed humanity is a set of related principles, namely:
1- All citizens are equal before the law in terms of rights and duties, without distinction of race, origin, language, religion or belief. ”

“ In the law of Islam a small place is allotted to the adat, i.e. the different manners and customs of different places, but it does not admit of any special representatives of adat or systems of rules to carry it out. Where recourse is had to laws which are to a great extent based on adat or are called into being by human choice or agreement, this can, as we have seen, be only excused on the ground that the men and the conditions of the present time are too evil to be governed by the holy law. ”

“ The common-sense of the Muslim community, working through that expression of catholicity, has set aside in the past even the undoubted letter of the Qur’an, and in the future will still further break the grasp of that dead hand. It is the principle of unity in Islam. But there is a principle of variety as well. The four schools of law whose origin has been traced are all equally valid and their decisions equally sacred in Muslim eyes. The believer may belong to any one of these which he chooses; he must belong to one ”

“ In expressing my conviction that Islam is not thus destined yet awhile to perish I believe that I am running counter to much high authority among my countrymen. I know that it is a received opinion with those best qualified to instruct the public that Islam is in its constitution unamenable to change, and by consequence to progressive life, or even, in the face of hostile elements, to prolonged life at all. Students of the Sheriat have not inaptly compared the Koranic law to a dead man's hand, rigid and cold, and only to be loosened when the hand itself shall have been cut away. ”

“ The hope for the future in Islam, there can be little doubt, lies in the principle of the agreement of the Moslem people, with its conception of catholic unity, and its ability, through that unity, to make and abrogate laws. As the Moslem peoples advance, their law can, thus, advance with them, and the grasp of the dead hand of the canon law be gradually and legally released. ”

“ This verse stresses the necessity of fighting against the People of the Scripture, but under what conditions?...The Islamic State is not permitted to attack non-Muslims who are not hostile to Islam, who do not oppress Muslims, or try to convert Muslims by force from their religion, or expel them from their lands, or wage war against them, or prepare for attacks against them. If any of these offenses occur, however, Muslims are permitted to defend themselves and protect their religion. ”

“ Is it by some subtle connection of thought that the chapter on oaths and vows follows immediately that on horse-racing, and a section on the building line on a street is inserted in a chapter on bankruptcy and composition? One thing, at least, is abundantly clear. Muslim law, in the most absolute sense, fits the old definition, and is the science of all things, human and divine. It tells what we must render to Cæsar and what to God, what to ourselves, and what to our fellows. The bounds of the Platonic definition of rendering to each man his due it utterly shatters. ”

“ In creating, on the basis of ideological outlook, the political infrastructures and institutions that are the foundation of society, the righteous will assume the responsibility of governing and adMinistering the country (in accordance with the Koranic verse "Verily My righteous servants shall inherit the earth" [21:105] ) . Legislation setting forth regulations for the administration of society will revolve around the Koran and the Sunnah. Accordingly, the exercise of meticulous and earnest supervision by just, pious, and committed scholars of Islam is an absolute necessity. ”

“ Thus, the Muslim conception of law is so wide as to reach essential difference. A Muslim is told by his code not only what is required under penalty, but also what is either recommended or disliked though without reward or penalty being involved. ”

“ So the Wahhabites refused to accept as binding the decisions of the four orthodox sects of canon law. Agreement as a source they also reject. The whole People of Muhammad can err and has erred. Only the agreement of the Companions has binding force for them. It is, therefore, the duty and right of every man to draw his own doctrine from the Qur’an and the traditions; the systems of the schools should have no weight with him. Again, they take the [284] anthropomorphisms of the Qur’an in their literal sense. God has a hand, God settles Himself on His throne ”

“ Islam is material, her ideals are powerful and simple, there is through all that unification of leader and led that all can appreciate. One God, one Prophet, one Book, each in its own rational relation to the other, a simple doctrine, powerful in its direct appeal to the unity, a leader, a prophet who lays down with the despotism understood of the ancient Semitic spirit, law and letter for all things; that is a creed that the Arab mind sees as tangible, if such an expression be permissible ”

“ But inasmuch as the average man demands a material centre of nationality, the Muslim looks for it in the holy town of Mecca, so that the basis of Muslim nationality combines the real and the ideal, the concrete and the abstract. When, therefore, it is said that the interests of Islam are superior to those of Muslims, it is meant that the interests of the individual as a unit are subordinate to the interests of the community as an external symbol of the Islamic principle. This is the only principle which limits the liberty of the individual, who is otherwise absolutely free. ”

“ These seem to have in their hands the teaching power which strictly belongs only to the Hidden Imam. They thus represent the principle of authority which is the governing conception of the Shi‘a. The Sunnites, on the other hand, have reached the point of recognizing that it is the People of Muhammad as a whole which rules through its agreement. In another point the Shi‘ite conception of authority affects their legal system. They utterly reject the idea of co-ordinate schools of law ”