Introduction
Calls for injustice are not documented in world history. Striving for justice, however, seems to be an anthropological constant. This applies to individuals as well as to communities.
Aristotle describes justice in the fifth book of his Nicoma- chean Ethics to be ‘the greatest of virtues’ and as ‘the actual exercise of complete virtue’.[158] The expression ‘iustitia fundamentum regnorum’ is widely spread in the languages and cultures of past and present. The church father Augustinus[159] asks: Without justice, what distinguishes the state from a bunch of robbers? The writer of this article is in possession of an old copper plate from Aleppo, on which one can find the Arabic phrase ‘al-‘adl asas al-hukm’. With this background, the following thoughts are based on premises which underlie modern comparative law analysis. It can be stated that all legal systems have to tackle certain needs of order in human coexistence. The solutions can be quite different, depending on social, economic and cultural circumstances and beliefs, while the subjects of regulation (e. g. protection of a person’s life, body and goods against intrusion, fulfilment of demands by commitment to contract, regulation of rights and obligations within families etc.) appear to be quite similar.This approach opposes a cultural exceptionalism according to the pattern ‘Islamic law is immutable and insofar structurally different from other laws’. The orientation on concrete needs of order further thwarts superficial conclusions regarding differences or similarities. Instead of focusing on single laws of jurisprudence without taking their legal and extra-legal context into consideration, we have to analyse the answer to challenges of order within the interplay of material and procedural norms coming from possibly very different legal fields.[160]
What, however, is justice? In the fifth book of the Nicomachean Ethics of Aristotle, the still universally accepted assumption can be found which calls for a distributive justice that treats the equal equally and the unequal unequally.[161] The Corpus Iuris Civilis, which was compiled by Emperor Justinian in the sixth century, starts by combining justice and law: ‘Justice is the steady and perpetual will to give dues to anybody,’[162] and gives a definition of justice that is, even today, conventional in vernacular (‘to each his own’): ‘iuris praecepta sunt haec: hon- este vivere, alterem non laedere, suum cuique tribuere.’[163]
Lawyers of different cultures seem to be more focused on the law and its application than on the — rather abstract — term of justice, which also includes moral ways of living.
Seemingly, there is a broad assumption that the law is an important, albeit not the most important tool for the implementation of justice.[164] This also applies to Islamic culture. There, legal scholars, especially judges, are held in high esteem — at least in legal literature. The judge’s task is numbered among the most honourable religious activities, since the rightful legal decision brings out justice, and justice is the base for heaven and earth.[165]But can law also be unjust? This dilemma can only be avoided on the basis of a pure legal positivism. There is an endless discussion about cases where a revolt against a regime is considered to be legally permissible or even necessary. In Germany, due to the experiences with the illegitimate state of the Nazi era, the so-called Radbruch Formula was established, named after the lawyer and Weimar minister of justice, Gustav Radbruch. His essay, published in 1946, titled ‘Legal injustice and supra-legal justice’, includes this formula for the first time, according to which a court, when confronted with a conflict of statute law and justice, can only (and has to) decide in favour of justice when the statute law is to be seen as ‘unbearably unjust’ or when it ‘knowingly refuses’[166] the equality of people as a category which is inherent to law. Nevertheless, the debate on who/what is equal or unequal is an old one and will continue in all legal orders: Are males and females, free people and slaves, citizens and noncitizens, followers of all religions or beliefs, adults and minors equal or unequal? The answers given differ tremendously in time and space.
In addition, legislators are normally fully aware of the fact that even the most diligent formulation of laws can lead to unreasonable and undesirable outcomes in exceptional cases. Consequently, normative or administrative corrections are made on the basis of justness or as an act of grace. This also applies to Islamic law, as will be shown below. Justice in law can therefore be only analysed by targeting certain groups of cases or situations of life. The dependence of this analysis on preconceptions with differing proveniences is quite apparent: Is it just or unjust to tax the poor and the rich equally? How can the search for materially right solutions be combined with the rather reverse necessity of establishing legal certainty?
How, and based on which benchmarks, can orientation and security be guaranteed by abstract laws, and in which cases is it necessary to consider justness or acts of grace? These are only some of the questions that describe the complexity of legal exercises of creating order. While an agreement on an abstract term of ‘justice’ is easy to achieve, the opinions on what in detail is equal or unequal and thereby has to be treated equally or unequally, also differs in Islamic law.
More on the topic Introduction:
- 1 Introduction
- Introduction
- Introduction
- 19 Introduction
- Introduction
- Introduction
- INTRODUCTION
- Introduction
- Introduction
- Introduction
- Introduction
- Introduction: Hegel, Marx and the Dialectic
- INTRODUCTION: OVERVIEW OF COMPLICATIONS ASSOCIATED WITH HIV THERAPY
- Introduction
- Introduction