An Analytical Study of Religious Law and its Criterion
Before starting a study and analysis of religious law it is necessary to present its scientific definition, so that our study and analysis can take a complete form. Definition of Rule: The great jurist, Sayyid Shahid Muhammad Baqir Sadr defined rule as: "A legislation emanating from Allah, the Most High, for the purpose of regulating and directing human life."
Allamah Sayyid Muhammad Taqi al-Hakim, transmitted another definition of rule, which is: "A legal considering pertaining to the deeds of the bondsmen (of Allah) either directly of indirectly."
Scholars of Islamic jurisprudence have studied the religious law and resolved the principles, constituting it, into three elements. These are:
1. Criterion `milak', (the benefit of harm, calling for the enactment of the law).
2. Will (the will of the law maker which appertains the criterion).
3. Consideration (a verbal formulation of the will of the law maker which signifies the criterion.
Now, let us look into the criterion of the law, for its relation with the Constant and Changeable part of the Islamic law.
Literal Meaning: It is recorded in Mu'ujam-ul-Wasit that: The milak of an issue is its constituents and epitome or its essential elements. It is said that 'the heart is the milak of the body'.
Technical Meaning: Scholars of Islamic jurisprud-ence have studied the issue of milak or criterion, defined it and founded legislative concepts on this definition. From the literal meaning they extracted the technical one. Therefore, the milak of religious law is its constituent and spirit. We can analyze the course of decreeing of rules and their enactment by the Legislator - i.e., explaining the legal philosophy of legislation - as follows:
Islamic legislation is founded on a scientific principle denoting that in every act, intention, word or issue there is essential benefit or harm. This is the principle of essential beauty and ugliness. Thus, drinking alcohol, adultery, injustice, gambling, abnormal sexual relations, stealing, usurpation, chaos, lying, fraud, hoarding, interest, rancor, etc., are in, themselves, harmful practices, i.e., there is essential harm in them. On the other hand, justice, truthfulness, trustworthiness, prayer, love and respecting others, order, security, marriage, commerce, agriculture, seeking knowledge, medical treatment, etc., are deeds that ensure benefit and public interest, i.e., they are, in themselves beautiful.
This benefit or harm is what is known in Islamic jurisprudence as criteria of rules `Milakat al-Hukm'.
The Exalted Lawmaker considers the different issues, questions and practices with complete knowledge, wisdom and justice. If He finds some benefit in a particular thing, He wills it and decrees a rule proportionate to the amount of such benefit in order to ensure it. This rule may take the form of obligation or permissibleness or desirableness. If He finds that a particular practice, issue or question is harmful He abhors it and enacts a law prohibiting man from performing it, in proportion to the degree of its harmfulness. This law may be one of forbidding `tahrim' or undesirableness `karahah'.
In this way, legislation always depends on the criteria and the will of the Lawmaker, which He reveals through legislative discourses (verbal expression), and takes the same direction as the criteria. Example: The saying of Allah, the Most High: "Forbidden unto you is the Dead (that which dies of itself) and blood, and flesh of swine."Holy Qur'an (Ma'ida 5: 3), and His saying:
"lawful have been made for you the good things." Holy Qur'an (Ma'ida 5: 4), and His saying "Verily, Allah enjoined justice and benevolence (to others)." Holy Qur'an (Nahil 16: 90), and like His saying: "and for the women shall be similar rights (over men) in fairness." Holy Qur'an (Baqara 2: 228), and like the saying of the Holy Prophet (s.a.w.): "The ruler is a shepherd and (he) "Verily, Allah enjoined justice and benevolence (to others)."is responsible (for the affairs) of his flock".
So the will of the Lawmaker is founded on the following fundamentals:
a- A complete knowledge of the issues He is enacting for, being conversant with their beneficial or harmful aspects.
b- Wisdom: It means to assign a thing to its rightful place. It implies that the knowledgeable one acts upon his knowledge without vanity.
c - Justice: The third element the will of the Law maker has to depend on, so that the enactment will ensure the benefits and ward off harm, is justice. Knowledge alone will not suffice for a legislator to be desirous of establishing goodness and benefit so long as he is not a just one who does not act on injustice and tyranny in the course of legislation.
3 - Consideration (I'itibar):
This denotes a formulation in the form of a decree by which the Lawmaker reveals his will. By this formulation, the will of the legislator, which alludes to the criterion of legislation, is known. Such formulation includes prohibition, obligation and permissibility.
Shahid Sadr has undertaken the analysis of the rule denoting responsibility `hukm al-Taklif' and threw more light on the position of the criterion vis-à-vis the rule. He said: "When we analyze the process of the rule denoting a responsibility such as obligation - just as any master obliges in the customary way - we will find that the rule passes through two stages. The first one is the stage of 'firmness' `thubut' and the second is that of confirming `ithbat' and manifesting. In the first stage the master specifies what the deed possesses of benefit - and this is what is known as milak - till he percieves that this benefit reaches such a level as to create a ' will' concerning that deed, proportionate to the degree of the perceived benefit.
Thereafter, the master articulates his will through a decree in the form of a consideration. Then, the deed is regarded as a responsibility on the obligatee `mukallaf'. Therefore, in the stage of affirmation (thubut), there is criterion `milak', will `iradah' and consideration `I'itibar'. `I'itibar' is not a necessary element of the stage of affirmation, rather it is normally used as an act of formulation customary to legislators and men of intellect, and legislators follows their course in this matter".
This explains the principles of the rule and that the criteria of laws are the reason behind enacting them. And these criteria decide the permanent and the variable among the laws.
As it is quite evident, the criterion or benefit is the backbone of law which the will of the legislator aims at. This will is formulated into a legislative articulation addressing the obligatee. At the stage of receiving the laws by the obligatee, the role in comprehending the "consideration' in preparation for executing the law is manifested. We shall study this issue later - Insha Allah - to remove the vagueness, as regards to what is human and what is divine, in Islamic legislation.