Legal philosophy
Where does law get it’s authority from?
Why is Law binding?
Islamic Jurispudence
The purpose of law is to foster living in tranquility with oneself and with society.
To create an good moral individual.
Not because we want to create harmony.
Human being is responsible for his actions.
Not only because it is beneficial for us.
We cannot take law purely on rationalist considerations.
This fine balance between reason and revelation is the ultimate source of Law.
This fine balance has only been achieved in the Islamic tradition.
Law has great interest in all actions of the individual, not only the state structures.
All human actions can be classified into 5 types:
- Obligatory
- Recommended
- Permissable
- Disliked
- Forbidden
We cannot apply analogy in ibaadat, but in muamalaat.
We believe in revelation, because we believe it comes from Allah (SWT).
We believe that it is the ultimate authority.
Legal Authority is epistemic, rather than politcal, social or religious.
Legal Authority in Islam, being in private circles and was always personal and private.
Fiqh meant general understanding of the texts.
The decline in the wholistic understanding of fiqh.
Ghazali, fiqh was reduced to legal understanding only.
Moral obligation for every Muslim to understand the basic ahkaam of Islam.
Legal authority cannot be imposed and enforced, but must be based on the moral uprightness of the authority.
Legal norms and social morality were largely inseparable.
Western Legal Tradition
The purpose of law is control and discipline.
Implemented by the state.
How the nature of law relates to obedience?
Western Legal thought does not involve religion and morality.
Based on Benefit and Harm
We must follow the Law because it is reasonable.
Society has a contract with the authorities who coined and imposed the law.
If we don’t follow the Law, we may return to the state of nature.
Presence of coercive and displinarian state agencies. The emblem of the modern body politic.
Do we follow the Law because we are morally obliged to follow it
The theory of contract: The followers of the law, have a contract with the authorities and they have accepted them as legislators.
The state of nature is evil. If we don’t have law, we must accept the Law and the legal authorities.
Without referring to the content of the Law. This is morality.
Rule of Law
Rule of Law is the Will of the State.
Is it a tool used by the Elites?
Every work for Islam is small in the eyes of Allah. You may think it is small, but Allah will put barakah in it.
Use what Allah have given for his cause.
Islamic Worldview comes from Allah.
Engaging the texts carrying the will of Allah, is a human endeavour.
Reaching objectivity
Aqeedah
The higher principles of Islam
Understanding the Wujood (The existance)
The letter of the Law vs spirit of the Law
Letter of the Law – Pray Asr when you get there
Spirit of the Law – Pray Asr in the last of it’s time
Law is the will of Allah
The scholars came up with different methods of legal interpretation to reach the Will of Allah.
Laws are strict rules created by human beings.
Various types of authorities amongst men, whihc could be a man, a king, a group, a parliament, a president.
In the West, the authority is the legislator.
Why do we accept law?
Who will define justice.
Does law uphold justice?
Law is the actualization of the commands of God.
The Quran is not a rule book. It is a flexible book that has kept room for interpretation.
If Allah SWT intended to reveal his will in the form of a rule book that just needed implementation.
The majority of texts are dhanni dhalala?
Law is near to certainty
Skepticism – Law as a closed logical system. Rules affect legal justice.
Law and morality.
We need Qiyas to extend the application of texts to different situations.
Complex theorizing to create philosophy to benefit the ummah.
Post-modernism – Rejecting any type of certainty including Law, because it is man-made.
In Islam, the answer is simple.
In the West, the answer is complex.
