THE ISLAMIC CONCEPTION OF JUSTICE
The analysis of Islamic contract law requires a prior investigation on the Qur’anic theory of justice (‘adl), which embraces a God who (A) creates ex nihilo; (B) acts definitely in historical time; (C) guides His people in such time; and (D) can in some way be known indirectly by His creation.
The disclosure of this paradigm permits a better understanding of the notion of ‘law’ (ḥukm) and ‘right’ (ḥaqq) in the Islamic tradition (E). The final outcome is a theory of justice which is, at the same time, strictly monistic (God is the only Lawgiver) and in-the-reality (the ‘right’ is ‘real’ and thanks to the reality the understanding of the Message by the fuqaha’ can be pursued).
(A) Divine creation and human agency
Islam indicates the ‘submission’ of the believer (muslim) to God’s omnipotence. The divine absolute freedom creates everything at any instant: in order for an object to continue to exist, in fact, God must create it anew ex nihilo each moment. God’s will (irada) eternally models all the reality: “To Him is due the primal origin of the heavens and earth. When He decreeth a matter, He saith only “Be!” and it is” (Q. II:117).
While God is the only Creator, human beings become responsible by the “acquisition” or “performance” (kasb, iktisab) of the action created by God: the doctrinal result is a theory of moral action which reconciles, in the end, divine voluntarism and human responsibility in a creator-agent relationship, or created agency.
(B) Eternal creation in time
The dogma of the divine free arbitrariness in modelling the reality is linked to an atomistic conception of creation and time, able to insert the flow of contingent agencies in the eternal creativeness of God.
God’s personal command, “Be! and it is” (kun fa-yakun) rules any event in time: from the birth of a person to his death, human existence falls under the decree of God. Thus, Muslim tradition sees time as a series of predetermined events ruled by the divine omnipotence.
(C) God’s Guidance: the Shari‘ah
The complementary truths of God’s omnipotence and human responsibility find their joint element in the communication of the divine Truth with the Revelation of the Shari‘ah (literally, ‘the road leading to water’, the Way, the Path).
In order to make human beings consciously responsible of their actions, God has given the Qur’an, lit. ‘what is read’, the ‘recitation’, and sent the Prophet as reminders of the Message (“Say: “Nothing will happen to us except what Allah has decreed for us: He is our Protector”: and on Allah let the Believers put their trust”, Q. IX:51).
This is the Way, the Guidance that expresses the “decision by God intervening under the form of a communication (kiṭab [book]) concerning human actions”; according to Stelzer, “divine law is a manifestation of the divine Word”.
Anyway, although God has given the right Path, it depends on men to gratefully submit to the guidance or stubbornly reject it (“Say: “Everyone acts according to his own disposition: but your Lord knows best who it is that is best guided on the Way” (Q. XVII:84); “Say: “The Truth is from your Lord”: let him who will, believe, and let him who will, reject (it)…” (Q. XVIII:29)). An alternative is faced by human being on the journey of life: like a solitary traveller in the desert, man who believes and proves worthy of God’s benevolence is rewarded with His guidance (Shari‘ah); he who goes astray (ḍalla) does so to his own harm: “Verily We have revealed the Book to thee in Truth, for (instructing) Mankind. He, then, that receives guidance benefits his own soul: but he that strays injures his own soul. Nor art thou set over them to dispose of their affairs” (Q. XXXIX:41).
(D) Understanding the Guidance: the science of fiqh
There are no obstacles for the believer to seek the right Way, the true Guidance. The Revelation is clear and the clarity of Truth doesn’t require any imposition: “Let there be no compulsion in religion: Truth stands out clear from Error: whoever rejects Evil and believes in Allah hath grasped the most trustworthy hand-hold, that never breaks. And Allah heareth and knoweth all things” (Q. II:256).
Anyway, the clarity of the Truth does not mean that it is manifest, and the ilm al-fiqh (literally ‘science’ of ‘comprehension’, ‘understanding’) is the discipline specifically aimed at ‘making manifest’ God’s will as ‘clearly’ revealed in the Qur’an and in the examples by the Prophet (sunna).
In its research on the Truth, Islamic jurisprudence follows an array of principles, the so-called uṣul al-fiqh (the ‘roots’ of understanding). With regard to the uṣul al-fiqh, not only God’s Will appears in the Qur’an and the sunna of the Prophet, but, since God’s authorial intent shapes any event, the event itself, despite not directly regulated in the two ‘textual’ ‘roots’, can be judged by the experts of fiqh (fuqaha’), who may reach a consensus (ijma) on its correct classification or may search its underlining ‘illa, the efficient cause which justifies the transference of the judgement from the precedent to the new case in the analogical legal reasoning (qiyas).
The final outcome of the research of the divine authorial intent is the factual application of the classification to the real case, i.e. the practical interpretation of the fact and its judgement as ‘applied understanding’, furu‘ al-fiqh (the ‘branches’ of understanding).
The intellectual enterprise of fiqh implies an effort, an endeavour, a ‘striving for’ (ijtihad), that cannot acquire any ‘firm’ knowledge or systematization of God’s Will, but, simply, a never ending better comprehension, constantly pursued for the good of all the Muslim community. From this standpoint, fiqh doesn’t match with the Western notion of ‘law’, but may be better presented as a hermeneutic discipline which explores and interprets Revelation within the traditions of one recognized directions/schools (madhahib): in the Sunni universe, Ḥanafi, Maliki, Shafi‘i, Ḥanbali.
(E) ‘Law’ and ‘right’ in Islam: the notions of Ḥukm and Ḥaqq
In his al-Mustaṣfa (The Quintessence), al-Ghazali explains that “a rule (ḥukm), according to us [that is, the Ash‘aris], denotes the dictum of the revelation when it is linked to the acts of those made responsible [inna ‘l-ḥukm ‘indana ‘ibara ‘an khiṭab al-shar’ idha ta‘allaqa bi af‘al al-mukallafīn]”. Accordingly, the phrases la ḥukma illa min allah (“Every rule of law is from God”) and al-ḥakim huwa allah (“God is the lawgiver”) appear throughout the writings of Muslim jurisprudence.
The divine ḥukm is conceived by the Ash‘aris in a normative ethics which derives from it the taxonomy of the ‘quintuple qualifications’ (al-aḥkam al-khamsa, lit. ‘the five status’; aḥkam pl. of ḥukm). Thus, in the framework of the ethical status of the action created by God, Islamic jurisprudence ‘collocates’ any human act into one of the five ‘decided status’, already established by God (al-aḥkam al-khamsa): (1) obligatory, duty (wajib, farḍ); (2) recommended (sunna, mandub, mustaḥabb); (3) neutral, indifferent (mubaḥ); (4) reprehensible, disapproved (makruh); (5) forbidden (ḥaram) (whose opposite is ḥalal, not forbidden).
While the rule (ḥukm) establishes the status of the human act, the ‘rights’ (ḥuquq, sing. ḥaqq) are the means thanks to which God realizes (in the sense of ‘making real’) the status established in the rule (ḥukm).
The term ḥaqq stems from the Arabic root Ḥ-Q-Q, whose primitive meaning was ‘to carve’, and later ‘to be real, true, legal, right, correct’. Thus, although the primary meaning of ḥaqq is “established fact” or “reality” (al mawjud al thabit), in the field of law its dominant meaning is “truth” or that which corresponds to facts. Both meanings are equally prominent, so much that some lexicographers (Lane, 1865) consider the second meaning to be the primary one.
Given this preliminary remarks, it may be said that the ḥukm (‘law’) and the ḥaqq (‘right’) merge in the divine creation, which is ‘established’ in the ḥukm and ‘realized’ in the ḥaqq. And, in this precise way, the Muslim believer is ‘guided’ along the path of Shari‘ah in the performance of God’s Will: in a nutshell, the ḥaqq realizes what the ḥukm rules.
Consequently, the ‘real’ (ḥaqq) becomes in its essence ‘imperative’, a structure of (divine) wills, of revealed assertions as rules (aḥkam) and not of objects. The ‘real’, as empirically presented as ḥaqq, is essentially legal, an expression of the rule, ḥukm. The ‘right’ becomes extremely empirical, casuistic, precise in the de-scription of the ‘fact’, the ‘real’ (ḥaqq); contemporarily, the scholarship (that aims to de-scribe the ‘real’ as a divine manifestation) repudiates any assertion of pre-scription by itself, since the ‘law’, the ‘rule’ (ḥukm) is the prerogative of one Will, that of God in His eternal and free creativeness.
The final outcome is a theory of justice which is, at the same time, strictly monistic (God is the only Lawgiver) and in-the-reality (the ‘right’ is ‘real’ and thanks to the reality the understanding of the Message by the fuqaha’ can be pursued).