Justice as a Postulate in Islamic Norms Doctrine
Basic Texts
The Quran, being the first and most honourable normative source of Islam,[167] orders and teaches justice on its own accord[168] and allows assured decision[169] [170]. Justice is an attribute of God. It is also required for decision-making between people, as can be seen the Quranic verse, which calls for a just judgement (wa idha hakamtum bayna al-nas, an tahkumu bi l- ,adl)i∖ Hence, we also find here the personal ethic as well as the legal regulative components of justice. Nevertheless, no sole definition of justice has been developed. The great jurist al-Mawardi (d. 1058), the author of the most influential book on state legal theory, describes justice (‘adala) as a condition of moral and religious perfection. According to the scholar Ibn Rushd (d. 1198), who is also known in Europe by the name of Averrods, justice consists in avoiding severe sins and also staying clear of smaller ones. It is mostly taken for granted that such perfection is only rarely achieved. The first great codification of Islamic law in the 19th century, the Ottoman Mecelle in 1876, describes a suitable just witness as someone whose positive incentives outweigh the negative ones (article 1705 in the book on evidence and oath).[171] [172] The term justice has to be concretised with regard to single contents, depending on social preconceptions and legal landmark decisions. Hence, the fundamental question arises whether legislators or those applying the law are entitled to develop new interpretations of the laws and apply them. This might in theory collide with the traditional perception of God being the sole legislator, which is maintained not only by Islamists in our days. On the other hand, there is the concept of sovereignty, delegated by God to the people. Approaches to epistemological problems Justice is not dealt with as an autonomous, theoretically-based concept[173] in the juristic or legal philosophical literature. Nevertheless, the scientifically most elaborate school of Islamic theology, the so-called Mu'tazila, is based on the presumption of God’s justice as an important pillar of insightd[174] God is not only just — everybody agrees on that — but he is just by necessity, hence he cannot and must not be unjust. It is rationality which brings justice (by distinguishing between good and evil) to light. In the latter aspect, the Mu'tazila differs fundamentally from other, later dominating readings like those by the Ash'arites, who consider everything God does as being just. One consequence of the Mu'tazilite doctrine, even if not an exclusive one, is the rejection of a strict theory of predestination. If God is and has to be just, he cannot determine the belief or disbelief of a human in the future. On the contrary, the free will of the human being (ikhtiyar), decides on his/ her ways, which are nevertheless judged by God?[175] Sunni jurisprudence has unarguably widely settled for the assumption that the order created by God as the norm-giver (shark) completely fulfills the postulate of justice, so that only details have to be dealt with?[176] Respectively, the input on justice (‘adl) is intellectually modest in the most comprehensive summary of the opinion on the four great Sunni schools of fiqh,[177] which is published by the Kuwaiti ministry for religious foundations and Islamic affairs in an encyclopedia containing 45 volumes. There is consensus regarding the custodian of the alms taxes (zakat), who has to be just, as well as the one who recognises new moon in Ramadan, while there are different perceptions on the concrete requirements for justice here. Different perceptions are also discussed for the briefly touched issues such as the determination of the direction of prayer, the qualification of water for ritual washing, the exercise of marriage guardianship, the enforcement of wills, the observation of charities and the guardianship over minors. The literature on the judgeship, the administration of appeal instances (mazalim), the institutions of giving expert opinions of normative issues (ifta'), and particularly on witnesses, is somewhat more explicit. The article closes with remarks on justice between spouses, where the postulate of equal treatment for all wives (Qur’an 4:3) is dealt with (wa in khiftum alia taidilu, fa-wahida...)[178]. Generally spoken, in Islam, as in other religions, simple-minded representatives have to deal with complex issues, and it happens that they try to enforce their interpretation with social pressure or brute force. Contemporary Islamists, last but not least the anti-intellectual neo-Salafists, claim exclusive knowledge of the truth — just like any religious or ideological fanatics. The badge that Islamist groups spread in the small Syrian town 'Azaz 2013 after occupying it: ‘Islam = justice, democracy = injustice’[179] may serve as an example of this simple-minded approach.[180] More ambitious thinkers automatically have to deal with the question of how the norms set by God can be understood. Apart from this, two opinions were developed on the question of whether the norms of the Sharia consistently had a clear content. One of the schools (the mu- khatti’a, or ‘fallibilists’), agreed, but stated that only God knew the correct answer, which was to be made known on the day of the Last Judgement. The other school (the musawwiba, or ‘infallibilists’), with prominent representatives like al-Juwayni (d. 1085), al-Ghazali (d. 1111) und al-Suyuti (d. 1505) already doubted the basic assumption of one righteous interpretation. For them, there was no exclusively right answer (hukm mu,ayyan), but God wanted the people to find it themselves. If there had been one correct answer, God would have made it clear and not send the people on their way to find it without having appropriate tools for the search. Hence, it would be enough to thoroughly care for one’s own cognition (ijtihad).25 Justice and Rule The small number of works on constitutional topics argue that the production of justice is an essential reason for the caliph’s rule. Al-Mawardi26 wrote in his standard work ‘The ordinances of government’, most probably addressing the caliph of the Abbasids27 that the ‘imamate28 was established as the succession of the Prophet in the protection of religion and the administration of worldly affairs.’ According to the author, the Imam has to be entirely just, has to fulfil all the preconditions for independent legal reasoning (ijtihdd) and have intact senses, be physically healthy, insightful, courageous and fearless and has to belong to the clan of the Prophet, the Quraysh. The eminent scholar al-Juwayni identifies the correction of discrepancies and injustices, the support of those having been treated unfairly and the proper allocation of rights the central tasks of the ruler.[187] The scholar Ibn Qayyim al- Jawziyya (d. 1350) states that God has sent his message to guide the people in justice. Hence, just rule was the way to God, and Muslims had to follow every way that lead to the right and just?[188] [189] This corresponds with the perception of Ibn Abi al-Rabi' (d. 1258), namely that humans might be unjust by nature, but also have the natural desire for justice and the urge to consolidate to bring justice back. This is why rulers came to power through a contract with their people, which promised to create a just society or at least the maximum of potential for justice.32 However, according to Ibn Abi al-Rabi', the Sharia itself substantially determinates justice.[190] [191] [192] In consequence, he refrains from any elaboration of concrete parameters for justice. A certain specification of ideas of justice can also be found in mediaeval literature. The important universal historian and ‘sociologist’ Ibn Khaldun (d. 1406), describes three kinds of political system: The first level is a primitive-natural system, in which only the power of the fittest, who tyrannises the others, counts. The second, ‘dynastic’ system can also be considered tyrannical. It is based on laws of the king/ruler. However, these rules are arbitrary and are only followed on the basis of coercion. Khaled Abou El FadP5 states that on this basis a ruling system, which acts in accordance with the law, is created. However, it does not necessarily include the (modern) premise of the rule of law, which will only be established through specific contentious decisions and procedural guaranties like checks and balances. Also, it has to be examined under which conditions even an unjust ruler can claim loyalty or should not be toppled. Ultimately, this deals with weighing up different evils, which is also a central aspect of Islamic law. After the complete loss of power of the Abbasids in the 10th century (with a short break in the late 12th and the early 13th centuries) the legitimacy of state rule was evaluated rather generously. Ibn Taymiyya (d. 1328) who is widely quoted until today, held the view that Muslims only had to act obediently before God and his messenger; the faithful had to discuss and counsel themselves with the expertise of their respective branches.[193] In this reading, Muslim society can exist as a variety of political entities under different rulers. With this interpretation, Ibn Taymiyya was able to preserve his crucial concern, the enforcement of the norms of Sharia, irrespective of particular structures of worldly rule?[194] [195] The scholar and judge Badr al-Din ibn Jama'a (d. 1333)3s added little to the theoretical construction of al-Mawardi?[196] His theory of the Imamate is largely embedded in the current political situation, even though he differentiated between an Imamate by choice and an enforced Imamate.[197] The Imamate which was only established by military means was also valid, so that ‘the unity of Muslims and their unanimity remains’; insecurity and the sinfulness of the ruler do not change it.[198] Even if the Imam or the sultan acted in a sinful manner, it was better not to degrade them to avoid disturbances. His interpretation of Qur’an 4:59 is remarkable: not only were caliphs to be commanders, but also their ‘representatives’, namely the usurpers. Finally, constitutional law developed the pragmatic rationale that injustice was preferable to anarchy.[199] The statement that sixty years under an unjust Imam were better than one night without a sultan is widely quoted.[200] The Shi,,ites, who were rarely in charge of power, had to develop strategies to deal with a rule they perceived as unjust.[201] [202] [203]. It might not be too daring to draw parallels to the Radbruch formula. Unjust and inappropriate law generally also has to be followed. Otherwise the peacekeeping impact of the state monopoly on the use of force might break down, legal security might go astray, necessary common codes of behaviour might be endangered and the generally rather thin layer of civilization might be blown away by the right of the stronger. Consequently, according to a Syrian legal handbook from the 8th∕14th century/5 the appointment of judges by an unjust ruler is valid, as long as the judge is capable of performing jurisdiction. But then what remains of justice?