By Sidrah Unis

THE laws of Islam comprise rules of conduct revealed by God to His Prophet, whereby people are directed to lead their lives. Thus, revelation is the source of Islamic law which is available to us in the form of the Quran and the Sunnah of the Prophet.

A unique aspect of Islamic law is that it attributes the authority of making laws to God only. According to Islam, no man or body of men can ever be capable of or allowed to make laws for other men; “.... We have bestowed from on high upon thee, step by step, this divine writ, to make everything clear, and to provide guidance ....” (16: 89)

However, where there is no room for the making of new laws, there is also no prohibition on the innovation, extension, and re-interpretation of the existing laws. This very process is denoted by Ijtehad. It is the method of Ijtehad by which God has enabled Muslim jurists to: (1) make provisions for the developing circumstances; and (2) prove Islam as a system of life practical for all times.

In Islam, unlike the western legal systems, there is no room for the authorities to be immune from the law. Even the head of an Islamic state may be challenged, in both official and private capacity, in the court. Obedience to a ruler for that matter is contingent on his enforcement of Islamic laws. In other words, if the government fulfils the requirements prescribed by the Quran and the Sunnah, its claim to the allegiance of the people becomes absolute. The Prophet said: “A Muslim has to listen to and obey (the order of his ruler), whether he likes it or not, as long as his orders do not involve disobedience (to Allah). But if an act of disobedience (to Allah) is imposed, one should not listen to it or obey it.”

It also becomes evident that the accountability of the ruler of an Islamic state is twofold: (1) he is answerable to God, as power bestowed on him by God is a sacred trust; and (2) to the people who are his subjects.

The office of judge is independent of all executive control and he can exercise his authority without any form of interference from influential quarters. He decides all disputes in the light of the Quran and the Sunnah. Further, a judge is required to be impartial and decide on the merits of the case.

The following statement of the Prophet, which he made while deciding the case of a noble woman who had committed theft illustrates the same: “Verily those who were before you were destroyed because when a noble man from among them committed theft, they passed no sentence on him. By Allah, had Fatima, the daughter of Muhammad, committed theft, I would have cut off her hand.”

The Quran and the Sunnah define the main responsibilities of a judge. The Pious Caliphs issued detailed instructions about the qualification, appointment, and conduct of judges. Letters written by Caliph Ali to his governors regarding the administration of justice in their territories thoroughly explain who should be a judge and what should be the conduct of a judge. Caliph Umar’s case is an example of how unsuitable judicial behaviour must be dealt with. He once had a lawsuit against a Jew. When both parties went before the judge, the latter rose in his seat out of deference to Umar who looked upon the act as an unpardonable judicial weakness and dismissed the judge at once.

Source: The Dawn

URL: http://www.newageislam.com/NewAgeIslamIjtihadRethinkingIslam_1.aspx?ArticleID=663