The concept of Islam is that the creator and owner of the universe has the right to make laws. The basic difference between Shariah law and humanitarian law.
On the 30th and 31st of July 2023, a unique program was organized in the conference hall of Islamic Jurisprudence Academy, Delhi, in which lawyers or students studying to be lawyers from all over India, who are graduates of religious schools, were gathered., and held a two-day training program for him, in which most of the Supreme Court lawyers were addressed as mentors. On this occasion, Rakim al-Haruf delivered an oral presidential speech and at the request of the audience, his topic was “Difference between Divine Law and Imposed Law”, which in the current situation, when the Sharia law is being declared obsolete. The talk of change is being talked about and the atmosphere is being paved for Uniform Civil Code (UCC) in the country, is of special importance for teachers, students, and intellectuals related to law; Therefore, the summary of this oral and written address is being presented in these columns.
There are three main differences between Sharia law and other laws: The first difference is that in Sharia law, the source of law is Allah Almighty, in other laws, human reason or desire is considered as the source of law. Another difference is that Sharia law is based on human nature and not on human will, and prevailing laws are based on human will. The third difference is that the real importance of the law is justice, which means that justice should be done for all classes. It is not applied equally; Rather, it should be enforced with difference, in such a case Sharia takes the path of justice instead of equality. The basic difference between Shariah law and humanitarian law.
The explanation of the first of these points is that the Holy Qur’an has repeatedly said that it is the right of Allah to decide about the issues of human life (An’am: 57), the decision that Allah has made is the truth. And it is based on justice, now there can be no change in it: (An’am: 115) The polytheists of Makkah demanded from the Messenger of Allah, may God bless him and grant him peace, that he brings another Qur’an instead of this Qur’an, or some changes in it. Do it, Allah Ta’ala said through the blessed language of the Holy Prophet (PBUH) that even I (you) do not have the right to change it. (Yunus: 15)
That is why the first source of the Shariat is the book of Allah and the Sunnah of the Messenger, which has come in such clear words in the Holy Qur’an that there is no possibility of any other meaning in it or has come in such a reliable hadith that there is no doubt about its provenance. Ho, he is definite, and there can be no change in him; However, the order which is based on the expediency of a particular time, which has changed later, can be changed in this order, or the order which has been given due to the customs and customs of a particular time and that alias has changed. , or the ruling that is not clear in the Qur’an and Hadith and it is an ijtihad issue, in which an opinion has been established by considering the mood of the Shari’ah in front, then the jurists of the Ummah should make any changes in such rulings through collective ijtihad. can. The basic difference between Shariah law and humanitarian law.
But this will not actually change; Rather, one of the two concepts should be preferred and the ruling of the Shari’ah should be adapted according to one’s time. There are many examples of this in the books of jurisprudence, such as the Prophet (peace and blessings of Allah be upon him) forbade selling something before taking possession of it. (Bukhari, Hadith No.: 2123) In the early period, taking possession of something had only one meaning and that was to take possession of that thing perceptibly; But then things came into being whose physical possession was difficult, so in determining the fact of possession the possession was included, even in the present day when shares are traded on a large scale and besides If the number of shares purchased is recorded in the account of the buyer, there is no other sign of the possession of the goods, then the scholars of the present era consider the transfer of risk as sufficient for possession, i.e. when the share transferred to the buyer’s account and he has to bear the gain of the price increase and the loss of the price fall, then it will be considered that the possession has been realized, it is not actually a change in the order but it should be considered as a change in the execution of an order. The procedure is to be accepted. The basic difference between Shariah law and humanitarian law.
On the contrary, in the prevailing laws of the world, the source of law has been declared to be man, sometimes the order of an absolute king or dictator is considered law, sometimes the law is made by the decision of the majority, sometimes by the elected representatives of the people. Law is made, in all these cases man is given the right to make law for himself; That is why man makes and changes laws based on his desire. The Holy Qur’an said that the law cannot be based on mere human desires. This has been said in several places in the Holy Qur’an (Nisaa: 135, 26). The basic difference between Shariah law and humanitarian law.
Now the thing to consider is which of these two points of view is more correct? If considered, two things are necessary for the law-making authority: One is that he should be fully aware of the interests and disadvantages of the people for whom he is making the law and have full knowledge of their benefits and harms. Be, others: He can do justice to all these people, He is not biased towards any one group; Otherwise, he cannot act with justice among all people because he will try to put the interest of the majority first, put the benefit of his own race in front and ignore others, this perfection of knowledge and justice of the universe. May be within the Creator; Because when He created man and the universe around him, surely, He will be aware of what things and what actions will be beneficial for man and what things and who will be against him. Such action will be harmful, similarly, all human beings are his servants, and all are equal in relation to being a servant; Therefore, we can be sure about the creator of the universe that his order will be based on justice and fairness, consideration of the expediency and needs of all people, and impartiality. If the reins of law are placed in the hands of one person, it will produce dictators like Hitler and Mussolini, and if the reins of legislation are placed in the hands of the majority of the country, it will be even more harmful; Because not just one person, but a large number of the country will stand up as a dictator and will crush the minorities, a clear example of which can be seen in Israel at the moment, and in whose footsteps, unfortunately, our country will follow. Aziz is also moving forward, where the army, the administration, even the media, and to some extent the judiciary, have all been taken over by the government. The basic difference between Shariah law and humanitarian law.
Therefore, the concept of Islam is that the original right to make laws belongs to the creator and master of the universe, he loves each one of his servants, he loves each one of his creatures, and his love is for seventy mothers. and his knowledge is such that nothing in the universe is hidden from his sight, and his special attribute is justice, he has repeatedly mentioned his attribute of justice in his book; Therefore, wherever there is a command of Allah, whether it is in the Holy Qur’an or in the hadith, which is the interpretation of God’s creation through the blessed tongue of the Messenger of Allah, peace and blessings be upon him, then that is the right way for man, yes, the commandments of the Qur’an and the hadith. I am not present; Rather, they are based on the ijtihad of the jurists and the expediency of a particular era, and there is room in them to change the ruling due to the change of circumstances. (See the second part of the article next week) The basic difference between Shariah law and humanitarian law.
1) The Nature of Islamic Law
Islamic law, known as the shari ‘ah, is the framework of ultimate reality and the ethical guidance that Muslim scholars have derived from the direct Revelation of God to man. Although God reveals the pattern of ultimate truth indirectly through the workings of the physical universe and in the observable nature of man, the ultimate source of knowledge about both physical and metaphysical reality – and therefore the ultimate source of the shari’ah – is the Qur’an. This divine text was revealed directly in human language to the Prophet Muhammad 
, and is exemplified in the sunnah, which reports the Prophet’s understanding of this Final Revelation as shown through his words and deeds. The basic difference between Shariah law and humanitarian law.
All Revelation to the Jewish Prophets and to Jesus 
is binding on Muslims unless specifically abrogated in the Qur’an. The shari’ah is a specific form of the shar’ or path to God which the Qur’an states was revealed to all the prophets of the Abrahamic succession. The basic difference between Shariah law and humanitarian law.
Since the major purpose of Islamic law is to guide man’s search for truth, shari’ah touches on both transcendent and material experience. All aspects of every person’s spiritual understandings and undertakings, which come under the rubric of purification, or tazki ‘yah, should be consciously subject to the reality-check of Islamic law. This deeply spiritual nature of the shari’ ah provides the perspective for understanding and acting in accordance with the ethical or moral standards that the creator has provided to guide every person’s and community’s relations with other humans and with the rest of Creation. The shari’ah therefore provides the ultimate criteria for judgment on every aspect of one’s individual and social life. The basic difference between Shariah law and humanitarian law.
2) The Methodology of Islamic Law
The process of gaining knowledge of Islam through jurisprudence, and the body of legal advisements so derived, is known as fiqh. The shari’ah consists both of specific rules and regulations, known as ahkam, which are the subject of istifta, or fiqh analysis, and of general principles induced by scholars over many centuries from study of the Qur’an, sunnah, and their application in everyday life. The basic difference between Shariah law and humanitarian law.
The specific directives in the Qur’an focus primarily on the elements of formal worship known as the five pillars of Islam, because man cannot reason to this knowledge alone. These elements consist of the profession of faith, including the ‘aqidah or articles of faith common to all Abrahamic religions; and the rules for the five daily prayers, charity, fasting, and pilgrimage. The basic difference between Shariah law and humanitarian law.
The general principles of Islamic law, also known as universals (kulliyat), essentials (dururiyat), and goals (maqasid), are derived by a system of reasoning known as istislah, which focuses on the common good of mankind. This system of thought, in turn, is part of the broader field of study known as usul alfiqh, or study of the sources of fiqh Analysis of the general principles of Islarnic law through the use of intellectual effort, known as ijtihad, gives meaning to the specific directives and also provides guidance on all aspects of Muslim life in the variable contexts of time and place. Islamic law thereby gives living expression to an elaborate science and art of interpreting and applying the injunctions of the Qur’an and the guidance of the Prophet Muhammad . The development of an integrated and adaptable legal system which focuses on what is best for mankind as a whole is one of the most outstanding achievements of Muslim jurists. The methodology of Islamic jurisprudence asserts that any ruling in the fiqh has meaning only to the extent that we can understand its rationale or higher purpose. The basic difference between Shariah law and humanitarian law.
3) Human Responsibilities
The dignity of man derives from his acceptance, before the Creator of the Universe, of the responsibility to know right from wrong and to be a steward of the universe charged with caring for it and guiding it in accordance with the Divine Will. No beings in either the physical or metaphysical worlds have such a sublime responsibility. The basic difference between Shariah law and humanitarian law.
The rights of the human person and community derive from this responsibility, because every person and community must be free to carry out this stewardship. Every man and every woman, every Arab and every Jew, and every rich person and every poor person are equal in their responsibility to God and therefore in their dignity and in their human rights. The basic difference between Shariah law and humanitarian law.
Islamic law focuses on human responsibility, because a focus on human rights can devolve into the selfishness of seeking to maximize one’s own freedom to do whatever one wants at the expense of others. If everyone would fulfill all of his or her responsibilities, individually and collectively, then everyone would be accorded the full range of human rights. The basic difference between Shariah law and humanitarian law.
The scholars of Islam, have identified a half dozen overarching responsibilities, though some scholars will condense these to five or expand the number by elevating a secondary responsibility to the level of the universal or essential. The first three concern the essentials of life itself, whereas the next three concern the quality of life. The basic difference between Shariah law and humanitarian law.
The first three essential areas of responsibility or duty in Islamic law are:
a) Respect for life, or “the right to life” known as haqq al haya This requires not merely respect for the unborn after the spirit or ruh has been breathed into the fetus, but also such social duties as respect for non-belligerents in war and the use of dispute settling mechanisms whenever possible to avoid violence that might threaten the lives of oneself or others. Respect for life requires most basically an understanding that lasting peace can result only from justice, and that therefore stability should be sought as the by-product of sound foreign policy rather than as its direct aim. Similarly, crime should be combated primarily by addressing the causes rather than the results of the criminal mentality. The basic difference between Shariah law and humanitarian law.
b) Respect for community, or right to one’s identity as a member of a family, community, or nation, known as haqq al nasl. This focus on the family, and more broadly on expanding circles of community to include mankind and even all sentient beings in the universe, is unique to Islamic law, because it implies that sovereignty lies not in the extent of a country’s or a government’s power, as it does in Euro-American international law, but in the inherent dignity of the human person in community. This acknowledgment of the inherent right of the person to live in a series of legally recognized communities permits several levels of sovereignty, all subject to the highest sovereignty of God, and contrasts with the concept of exclusive sovereignty found in the so-called “nation-state” of the mid-twentieth century. The basic difference between Shariah law and humanitarian law.
c) Respect for free, private enterprise, with broad capital ownership, known as haqq al mal. The principle of freedom for individual persons to own the means of production has been basic in all Islamic scholarship until the twentieth century. Unfortunately, the principle of equal opportunities to own capital or the tools of production has been largely ignored for over a thousand years because various “rulers” understood that concentrated political power requires concentrated property ownership. Denial of access to capital ownership in a capital-intensive economy can amount to the denial of the right to life itself. Therefore all institutions that work in practice to concentrate ownership, including the financing of economic growth through the use of interest rather than by risk-sharing in joint-ownership, are “illegal,” that is, morally illegitimate, in Islamic law. The basic difference between Shariah law and humanitarian law.
The next three of the universals, essentials, or purposes of Islamic law, which concern the quality of life, are: The basic difference between Shariah law and humanitarian law.
d) Political self-determination, or haqq al hurriyah. This is usually known as “the right to political freedom.” Islamically, however, this term emphasizes the responsibility of both the ruled and the rulers to establish permanent institutions designed to facilitate broad-based political participation by every member of a polity in its governance so that they can help determine their own immediate well-being and long-run destiny. The basic difference between Shariah law and humanitarian law.
This universal, like each of the other five, contains a second-order level of responsibilities that serve to elucidate and carry out the primary responsibility. In the context of political self- determination, this next lower level of responsibility, known as hadyiyat, consists of ijma, which is the duty of the governed to reach consensus on critical issues, and shurah, which is the duty of the ruler to be responsive to this consensus. In a complex society, this might be accomplished best by using a concept of a hierarchy of assemblies that culminate in a national parliament. The basic difference between Shariah law and humanitarian law.
The third necessary element in the system of government prescribed in Islamic law, in addition to the executive and legislative, is an independent judiciary charged with applying the principles of Islamic law, especially as they are spelled out in a formal constitution covering the organs, methods, and principles of governance chosen by the legislature. The judicial area of government is designed to limit both the ruled and the ruler so that the ultimate sovereign, both in theory and in fact, will be God. The basic difference between Shariah law and humanitarian law.
e) Dignity, known as haqq al karama. The duty to respect human dignity is at the core of all Islamic law, because the essential purpose of the shari’ah is to help persons acknowledge and deepen their relationship to God and express this higher level of being especially in their relationships with each other. There are two major parts of this fifth universal principle of Islamic law. The basic difference between Shariah law and humanitarian law.
The most important aspect of the principle of dignity is the duty to respect each person’s need to seek and worship God in his or her own way. This is known in Western thought as “freedom of religion.” In both traditional Islamic and traditional American thought, this most essential element of the dignity of man requires that the government avoid any sectarian bias in carrying out its duty to facilitate freedom of religion in public affairs.
Another aspect of this principle of dignity, which is second in importance only because it is so often ignored, is “gender equality.” Whereas the Prophet Muharnmad and the Islamic teachings of the prophetic period were breathtakingly revolutionary in recognizing the divinely ordained rights and responsibilities of women in society, the practice of later Muslims degenerated to the level of their neighbors and has largely remained at this level while the rest of the world has begun to understand and share the sophistication of the original Islamic heritage. The basic difference between Shariah law and humanitarian law.
Islamic law recognizes a greater responsibility of wife and mother to care for the home and children, and a greater responsibility of the husband and father to support the family. The family, however, is a mutual support group, whereby all responsibilities are held in common through the principle of collective responsibility, or fard kifaya. It follows from this that if any duty is not being adequately met, each member has a personal responsibility, or fard ‘ain, to do whatever is required to fulfill that duty, whether it be the husband washing dishes or the wife working outside the home. The basic difference between Shariah law and humanitarian law.
Similarly, to the extent that home duties and the work of financial support for the family have been satisfactorily accomplished, both husband and wife have equal responsibility to participate in social and political leadership when needed for the good of the community and even to accept the highest judicial, legislative, executive, or entrepreneurial position in the land if it is offered. There the criterion for judgment is not women’s rights or men’s rights, but individual responsibility. Gender is irrelevant when the issue is personal responsibility to meet the needs of society in accordance with the requirements of Islamic law. The basic difference between Shariah law and humanitarian law.
f) Knowledge, or haqq al ‘ilm. A key to success in every aspect of private and public life is the duty to pursue knowledge. Since the highest purpose of every person is spiritual understanding, freedom to pursue the path of spiritual knowledge is paramount. We were created, however, as humans not as angels, so we have a duty to pursue whatever knowledge is useful to us individually and collectively in carrying out our responsibilities: to help the marginalized in society, to promote justice among people and nations, to multiply the material bounties of God, to work constructively in the political process, to participate with people of other faiths in addressing all the problems of society, and otherwise fulfilling all the requirements placed upon us by Islamic law. The basic difference between Shariah law and humanitarian law.
The duty to respect knowledge goes beyond the negative task of protecting freedom of thought and expression, limited only by the duties to respect human dignity, and extends to the positive obligation of every person to learn as much as one can throughout one’ s life in order to fulfill the purpose for which one was created. The basic difference between Shariah law and humanitarian law.
The nature and specific obligations inherent in Islamic law make it not only unique among mankind’s legal systems but the best suited as the paradigm of thought within which all religions and all peoples can cooperate in building a better world.
Dr. Robert Dickson Crane is the former adviser to the late President of the United States Richard Nixon, and is former Deputy Director (for Planning) of the U.S. National Security Council. He has authored or co-authored more than a dozen books and over 50 professional articles on comparative legal systems, global strategy, and information management.
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