SOME OF THE CHARACTERISTICS OF THE ISLAMIC SHARIA (EPISODE TWO (

An article written by Sheikh Abd al-Karim Zidan in the year 1338 AH - 1963 CE under the title (Some Characteristics of Islamic Law) and published in the Islamic Education Magazine in three episodes in its ninth, tenth and eleventh issues respectively of that year .

Below is the second episode, which was published in the tenth issue of the year 1338 AH - 1963 CE. In order to achieve the benefit, it is recommended to read the first episode before this article because it is related to this episode in form and subject .

Note: The translation below may need revision... We welcome any correction by emailing us

Written by Dr. Abdul Karim Zidan

Teacher of Islamic law, Faculty of Law

Second : The reward in Islamic law is worldly and eschatological

One of the characteristics of the law is that it is associated with a penalty that the state, when necessary, imposes on those who violate its provisions. This penalty may be criminal in the form of harm to the human body or restrict his freedom or inflict a decrease in his money (the fine). The penalty may be civil by compelling the debtor to fulfill his obligation in kind or in return for any financial compensation, or it may be nullity of the agreement in violation of the law and the failure to arrange any of its effects. However, the two types of punishment is a worldly penalty that affects a person in his life and not in his hereafter, because the state does not have anything from the matter of the Hereafter, and therefore it does not place any of the penalties except for what is implemented in this world .

Islamic law is consistent with man-made laws in that its provisions are associated with a penalty that is imposed on the violator, but they differ with it in that the penalty in it is worldly and otherworldly. To be with the eschatological penalty a worldly penalty. This worldly punishment is what is criminal, and some is civil, as is the case in man-made laws, although its scope is wider than the scope of punishment in positive law due to the inclusion of Islamic law in all matters of individuals, including religious and moral, contrary to the positive law .

The eschatological penalty entails every violation of the provisions of Islamic law, whether it is from the actions of the hearts or from the actions of the prey, whether it is a financial transaction or a criminal matter, and whether the violator is punished in this world and not punished unless his violation is accompanied by sincere repentance and dissolution of the right of others, and this is what Elbe indicate the texts of the Koran and the many of them verse in Surah (but reward those who fight Allah and His Messenger, and seek mischief in the land to be killed or crucified, or cut off their hands and feet from opposite or put out of the ground it for them shame in this world and for them in the Hereafter a great punishment Except for those who repented before appreciating them ۖKnow that God is Forgiving, Most Merciful .)

As a result of this eschatological punishment, the Muslim submits voluntarily to the rulings of the Sharia for fear of the punishment of God Almighty. Imran: (day you find all the same as what worked best a record of what worked ill wishes if between them and him lasting away God warns himself and God, merciful slaves), and the Almighty says in Surat earthquake: (it works whit of good will see. it is working whit An atom of evil he sees) and in this and that is the greatest guarantee for discouraging souls from transgression and stopping them from disobedience, and this is what positive law does not possess .

Third : General Sharia in place and time

One of the characteristics of Islamic law is that it is general in place and time, meaning that it is general to all people in every place and time. The Almighty said in Surat Al-A'raf: (Say, O people, I am the Messenger of God to you all). It is as strong as abrogated or stronger than it, so it does not abrogate Islamic law, which is a law from God, except another legislation from God, and since Islamic law is the conclusion of the laws and that Muhammad is the last of the prophets, so it is not imagined that anything abrogates or changes it .

And the general spatial and temporal general of Sharia and its inability to copy and change, all of this requires reason that its rules and provisions be in a manner that fulfills the interests of people in every age and place and fulfills their needs and is not narrowed by them and does not lag behind any high level reached by any society. And this - by the grace of God - is fulfilled in Islamic law, because God Almighty, by making it general in place and time, has made its rules and provisions in a way that makes them valid for every time and place, and this is evidenced by the reality of the Sharia, its sources and the nature of its provisions. The meaning and proof of the validity of what we say, and we begin by explaining the nature of the provisions of Sharia to show the extent of their general and survival .

The provisions of Sharia are of two types : the first came in the form of detailed provisions, and the second came in the form of general rules and principles. And both types came in a manner that corresponds to every place and time and is consistent with the general and survival of Sharia, and here is a brief statement :

The first type - detailed provisions : this is either related to belief, worship and morals, but it is related to the relationships of individuals between them. Resilience and survival .

And the provisions of acts of worship regulate man’s relationship with his Creator in a specific way, and this organization is needed by man at all times and places, because worship is one of the requirements of man’s creation of a great Creator who wanted his creature’s contact with him and his relationship with him in this specific manner, and in addition to that, the forms of these acts of worship have an apparent worldly benefit It appears in the goodness of the soul and the resulting goodness of society, so prayer, for example, that God said about it: (Prayer is forbidden from immorality and immorality), and a person's abandonment of immorality and evil is a clear benefit to him and to society, and so is the rest of worship .

Ethics is an essential element in the goodness of the individual and society, and morality does not substitute for any progress in the field of culture and science, and our evidence for that is what we find in the world and at the present time the crisis he is going through is an ethical crisis in its foundation and essence, and there is no point in detailing that. Accordingly, Islamic law, in its affirmation of the aspect of morality and its enactment of moral judgments, only wanted to lay the foundations of society on a solid and correct basis and to establish the edifice of reform starting from the human soul. After all, morals are fixed meanings that a normal person needs, and he does not imagine the advent of an era in which truthfulness, justice, loyalty, and honesty are said to be corrupt meanings that are not worthy of a person, unless human beings turn back to the life of the jungle and relapse of the instinct .

As for the other detailed provisions related to the relationships of individuals among themselves, they are also not interchangeable, because their detail was built on the basis that the need for them remains in place at all times and for each group and corresponds to each age and that others do not block them. Among these provisions are family planning, the manner of marriage, the right of custody, guardianship, and similar family matters. The organization of the marriage was very simple and devoid of formalism and rituals, and then it is valid for every time and place, as it suffices to hold it with an offer from a man or a woman and an acceptance from the other in the presence of witnesses to this contract. In a special manner or in specific hymns, this simple method of holding the marriage is compatible with every age and place .

The legalization of separation between spouses is the natural and reasonable thing, as it is not correct to force the spouses to maintain the marital bond despite the existence of reasons for their separation, but it is reasonable to allow the division between them so that each one goes to the state of his way and try his luck in another company and a new bond. That is why most Western countries permitted division between spouses if certain reasons were available after separating them was forbidden .

The regulation of inheritance, the assignment of heirs and the amounts of their shares came in an excellent way, in which various considerations were noted, such as the proximity of the heir to the deceased, his need, the fragmentation of wealth, and this regulation of inheritance and the foundations and considerations built upon it are valid for every time and place, and there is no detail here .

The prohibition of usury, which is a ruling on financial transactions, is a legal ruling that is not subject to exchange, because the evils of usury are self-perpetuating, and it is a manifestation of the dissolution and corruption of society and the weakness of the spirit of cooperation among its members, and the treatment of such a corrupt society is by reforming it radically, not by leaving its corruption and dissolution and legislating appropriate provisions for its corruption .

The penalties in Sharia were detailed and estimated for a limited number of crimes, which are the punishment for apostasy, fornication, theft, cutting off the road, drinking alcohol and retribution. As for the penalties for other crimes, their discretion may be left to the guardian or his representative and these are called discretionary punishments, and it is noted in their assessment of the severity of the crime, its circumstances, the status of the perpetrator and the extent of Its harm, all of this in light of the Almighty’s saying: (And the reward for a bad is as bad as it).

  Punishments to be assessed are all good, righteous and just, and no virtuous society is indispensable for them, because they are built on the basis of justice and to achieve the purpose of penal legislation .

The penalty for apostasy, which is the killing of the apostate after using it, if he insists on his apostasy is killed, and if he returns to Islam, he is abandoned. This punishment, which may seem harsh for the superficial consideration, is based on two foundations: The first is the Muslim’s breach of his commitment to the provisions of Islam. The second is to ward off corruption from the Islamic society. And the indication of that is that a person in Islam will have committed himself to the provisions and principles of Islam and not to deviate from them. If he did that, he was in breach of his commitment, then he must receive the penalty for this breach. This is one, and the second is that in apostasy and its declaration corrupting the Islamic society, it appears in Muslims questioning their beliefs, causing turmoil among them, and destabilizing the entity of the state that adopted Islam as the basis for its establishment, survival and goals, so it was necessary to punish the imperative to prevent this corruption of a society that owes Islam and a state made the basis of its life Islam. It is not said that this contradicts the freedom of belief in Islam and the non-coercion in religion. This saying is not said because it confused two matters. Islam does not compel a non-Muslim to change his beliefs, and this is a right.(There is no compulsion in religion), but our talk about a Muslim who is apostate, this is a matter other than the first issue, because for a Muslim for his apostasy from Islam in the fact that he has violated his obligation, he is punished as a result of this breach and does not mean punishing him for coercion in the religion .

The punishment for adultery is based on corrupting the morals of the people and the great harm it causes to the individual, the family and society, such as the prevalence of diseases, mixing of lineages, the destruction of homes, reluctance to marry, and so on. He welcomes this punishment and finds nothing in it except interest and good, and rebukes corrupt people who want to tamper with the honor of others and spread corruption in society. It is not said that the punishment for adultery, which is flogging or stoning, involves cruelty and a waste of the dignity of a human being, because we say that the adulterer is the one who has squandered his dignity and abandons this forbidden thing, so he does not expect appreciation and reverence, but deserves the flogging and bashing. The punishment of flogging still exists in some countries of the world, as in America for some crimes by soldiers, as well as in the United Arab Republic .

The penalty for theft, which is cutting off the hand, may be said to contain cruelty not appropriate to our present times, and some may say that it is a brutality and a remnant of antiquity, and both sayings are weak and not based on a deep consideration and surrounding aspects of the issue and an understanding of the philosophy of punishment, it is known that Islamic law required a guarantee. Socially, everyone starts from the family and ends with the state, so the needy individual finds what meets his needs with what the Shari’a enjoins compulsory solidarity among family members represented by providing alimony to the disabled needy of his wealthy relative. If this is not fulfilled or not, then the Islamic State is responsible for finding work for those who are able to do it. If the work is not found or found, and the needy is incapacitated, then the state is obligated to sponsor it. There is no difference between a Muslim and a non-Muslim. The state is obligated to sponsor him as long as he holds the nationality of the Islamic state. By Abu Ubayd that Umar bin Abdulaziz wrote to Ali bin Arta, his Wali in Basra:(... and see before you among the people of the dhimmah that his age has grown, his strength weakened, and the gains have gone away from him, so he rewarded him from the house of Muslims' money what is suitable for him, for it was reported to me that Umar ibn al-Khattab passed by a sheikh from the people of the dhimmah asking at the gates of the people, and he said: We will not be fair to you if we We took the tribute from you in your grayness, then we lost you in your arrogance, then he paid from the House of Money what works for him.) In this Islamic society that is based on this organization, if a thief is found in it unjustly extending his hand to the money of others and climbing the walls in the cover of darkness and terrorizing the insured and stealing their money, then Islamic law came to the requirement to cut off the hand of the thief, then the fair-minded does not say this is a harsh punishment. This is one, and the second is that the purpose of the punishment is to discipline the perpetrator and rebuke those who want a felony to preserve the stability, security and reassurance of society.And reality supports us. Prisons did not deter evil souls from stealing, but the punishment of cutting the hand deterred criminals in the past, and if this punishment was applied in the present and society was built on the basis of Islam, this punishment would deter criminals, and the fact that the punishment is old does not indicate its corruption and its lack of goodness, so what every old is corrupt or everything new is good The goodness of a thing benefits from itself, not from its grandmother and its introduction .

The penalty for defamation is obligatory for anyone who inflicts adultery, a man or a woman, with no evidence of it .

The punishment for blocking the road is commensurate with the gravity of this crime, because it involves an assault on people's money and souls, while demonstrating aggression, breaking the authority of the state, scaring the road and preventing passage through it .

The penalty for drinking alcohol was prescribed to protect the human mind from corruption, and the mind is a precious jewel that cannot be forfeited, in addition to the crimes that drinking alcohol leads to, destroying money and bringing disease .

And qisas in Sharia is made a right for the victim or his guardians (in the crime of premeditated murder), so they have the right to ask for retribution, just as they have the right to ask for blood money (financial compensation), and they also have to pardon, and this is the complete organization that does not neglect the aspect of the human soul and the love for revenge. One of the perpetrators and a just retribution for him, just as he did not neglect the interest of society, as retribution deters the perpetrator from the crime, and this deterrence is a life for him and for others .

  In spite of all this, if the perpetrator escapes from retribution to pardon the victim or his guardians for him, then the state may impose a discretionary punishment on him for the assault on society (public right).

And the second type - from the provisions of the Sharia : it came in the form of general rules and principles that cannot be narrowed by the needs of people, nor can they lag behind any high level that society reaches. We mention here some examples in support of what we say .

Sharia came with the principle of consultation in government. The Almighty said: (And His commanded them are consultations among them) And the Almighty said: (And consult them on matters) The principle of Shura is the most supreme system of government that the human species can reach and cannot lag behind any high and high level that humans can reach. This orthodox principle came in a manner of general and flexibility, so that it accommodates every legal organization to be put in place to achieve this principle and does not violate the provisions of other Sharia .

The Islamic Sharia came with the principle of equality, which is a great principle. Among its applications is equality before the law, equality that includes everyone from the head of state to the simplest citizen. Therefore, this principle is valid for every time and place .

And Islam came to the principle of justice and the necessity of ruling justly with the closest relatives and Alabaadin and with friends and enemies, the Almighty said in Surat women: (God commands that trusts to their owners and if you judge between people to judge with justice), and the Almighty said in Surah: (not hatred of any people seduce Do not be amenable Adjust that is closer to godliness) There is no doubt that this principle guarantees the interests of people in every time and place and expands for every sound organization that achieves justice, for example if it is felt that achieving justice in the judiciary requires that the courts be made up of two ranks, or that the court consists of more than one ruler. An audit committee that scrutinizes court rulings, for these and the like are permissible because it is one of the prerequisites for achieving justice and ruling with justice according to specific circumstances and a specific place, and Sharia is not restricted in any correct manner that achieves its objectives and leads to the proper application of its principles, and in this Imam Ibn al-Qayyim says:(If signs of justice appear, and his face travels in any way, then God’s law and religion ).

Sharia came with a rule (no harm or harm), which is an honorable prophetic hadith meaning that harm is raised by the rule of Sharia, meaning that no one may inflict harm on himself or someone else, just as countering harm with harm is not permissible because it is futile and meaningless corruption, so whoever burns the money of others is not permissible. Others may burn their money because in this interview there is an increase in damage and corruption. Rather, this damage is raised by providing financial security for the aggressor. There is no doubt that this great rule is adopted by many branches, and many rulings came to fulfill the significance of this rule, including the assessment of the right of pre-emption to ward off harm on behalf of the partner and the neighbor, and restricting the use of the right in a way that does not cause harm to others, as in preventing a person from setting up a tannery and the like in his home if This was a harm to the neighbor, and forcing the owner of the land to pass water from his land to water the land of his neighbor if he needed it, and the water was not harmful to him, and obliging the owners of the goods to sell their goods for the same value if they refused to sell at this value and the people needed what they had Of materials. The use of the right in Islamic law is restricted not to harm others. There are no absolute rights in the Sharia, as they are restricted by the limits of God that preserves the community’s interest and pays the harm from it .

The rule of no harm or harm is valid for every time and place, and so are all the general rules and principles that the Sharia came about and which are long enumerated and explained .

It concludes for us from all the foregoing that the nature of the provisions of the Sharia is valid for every time and place, and is consistent with the general nature of Islamic law .

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