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PUBLIC LAW. Concerned with the distribution and exercise of power by the state and the legal relations between the state and the individual, public law in the West is distinct from private law, which is concerned with the legal relationship between individuals. In Islamic law, the categories of public law and private law overlap, as some public law is civil and some happens to be criminal. On the whole, the primary purpose of Islamic public law provisions is the promotion of social objectives and the protection of collective rather than individual interest.

The notion of public law under shari`ah (the divine law) hinges on the conception of sovereignty which belongs to God alone. The Qur’an declares God as malikal-mulk (the sovereign of the entire universe) and ahkam al-hdkimin (best of the judges). God has delegated the sovereignty to the ummah (Islamic community) and the ummah in its power constitutes state or government. Therefore the government that is representative of the ummah is administered on behalf of it and is subject to divine laws and is a trust for the benefit of the people. One of the main functions of state in Islam is to establish justice and righteousness. Since the government is to function according to shad `ah. there is no struggle between state and church in Islam. A government or a ruler acts in his dual capacity as defender of the faith and governor of worldly affairs.

The people owe obedience to the government so long as it does not transgress the limits of shari`ah. Despite a good deal of overlapping between public and private law, some distinction does emerge in the writings of prominent Muslim jurists (fuqahd’).

The following areas are covered by public law in shad `ah.

  1. Constitutional law. The broad principles covered under constitutional law are the sovereignty of God as well as the delegation of that sovereignty to the ummah in the form of khildfah (succession), imamah (leadership), government, legislation, shurd (consultation), administration of justice, and so forth. Since sovereignty belongs to God, the attributes of God’s sovereignty appear in his names given in the Qur’an, which are suggestive of one or other aspects of it (e.g., surahs 17.11, 59.2, 45-13, 21.22, 5.3, and 22.40). The word mulk signifies power in relation to what is concrete, that is, territory. Mulk has two shades of meaning in the Qur’an and has an indirect connotation to territory (surahs 3.789, 5.123, and 67.1). The state is then a concrete entity in which the ummah attains righteousness. The government, therefore, is a representative of the ummah and is administered on behalf of God by principles of righteousness. Government is then a trust that God has placed in the hands of rulers.

The two main purposes of the government in Islam are trust and justice, as God is `adil, sadiq, and sabbuh (just, true and free from all taints). This requires justice and righteousness as its ends, and to this extent the state is theocratic, but it is entirely secular when its functions are taken into consideration.

The Islamic constitutional theory (caliphate) is based on consideration of shurd and democracy. The caliph is bound to act according to the laid-down principles. As Mawardi has said in his Al-ahkam al-sultaniyah, once the caliph disregards the principles, the people are absolved from obedience to him. The caliph in fact represents the Prophet in his dual capacity as the defender of faith and the governor of the world. The Shi’i viewpoint concerning the imamah is that he must also belong to the house of the Prophet (ahl al-bayt), while the Mu’tazilah and the Khawarij think that anyone may be elected a caliph based on a hadith: “Listen and obey, even though the chief be a negro slave.”

  1. Al-siyar (international or transnational law). Al-siyar deals with war, peace, neutrality, and state relations with individuals or groups. Islamic ethics and law, as stated in the Qur’an and explained by the sunnah (received custom) of the Prophet, embrace all moral and legal sociological rules of conduct which are enjoined on all Muslims. Therefore, the science of al-siyar began to be taught in institutions of learning as part of fiqh (jurisprudence) long before the works of Hugo Grotius, such as De Jure Belli ac Pacis (1625), were written. The Muslim jurist Muhammad ibn al-Hasan alShaybani gave an immense contribution to the field through writing Al-siyar al-kabir (translated into English by M. Khadduri as Islamic Law of Nations, Baltimore, 1966). Islamic international law helped to rationalize relations with the outside world and discussed graphically the rights of non-Muslims under shari’ah The great jurists stood firmly for equality between Muslims and non-Muslims under Islamic law (except family law). Diyah (compensation) was imposed on a Muslim who murdered a non-Muslim. International treaties were governed with full consideration for all individuals within the state.

Al-siyar is divided into different branches and, by divorcing it from political science and law in general, the fuqahd’ developed it as an independent subject and a separate science. It is amazing that the Muslim jurists thought of the rights, duties, and privileges of nonMuslims considering the fact that European jurists of Middle Ages, such as Grotius and Puffendorf, excluded completely the followers of all religions but Christianity. On the other hand, European international law originated in the necessity of regulating the relations of the new sovereign states for the purpose of achieving the temporal unity of Christendom.

  1. `Uqubat (criminal laws). Muslim jurists have laid down the principles of criminal law on the basis of the Qur’an and sunnah, which maintain that the commission of prohibited actions and omission of sanctioned actions create situations of injury to others called jinayah. Ji-nayah therefore means something injurious or wrongful, and it came to denote the action that is prohibited or unlawful, which was classified by Ibn Rushd as murder and injury that is wrongly done to a body or a person, defamation that is wrongly done to human honor, rape and adultery that is wrongly done to human decency, usurpation, theft and robbery that is wrongly done to property, as well as the related areas of cheating, fraud, embezzlement, and so forth; in other words, the violation of rights that relate to the person, owner, and property of others. Jinayat in shari`ah can be both civil or criminal in nature, and therefore some may relate to public law and others to private law as in cases for which diyah and qisas are provided, such as murder or bodily injuries which relatives of a victim can prosecute or pardon. The laws concerning major crimes are termed hudud and the punishments (#add) have been prescribed by the Qur’an. The laws concerning minor crimes are known as ta`zir. Islamic public law therefore deals also with the violation of public rights for which the remedy is granted by way of punishment. The wrong causing such a violation is called nasiah. The criminal administration of law under the general methodology of enforcement combines the principles of personality and territoriality and thus is applied and enforced on all criminals irrespective of their religious status. For the offenses for which #add (fixed punishment) has not been set, chastisement is meted out through ta`zir. Ta`zir is inflicted for acts of an offensive nature and range from admonition, dragging the offender to the door and exposing him to scorn, imprisonment, to blows. Infringement on prayers, zakat (giving alms), fasting, and the like are punished by ta’zir. Ta’zir may be combined with other kinds of penalties, such as kaffarah (expiation) or diyah.
  2. Taxation. Under the fundamental principles of Islamic financial theory, there is no place for accumulation of wealth in the hands of the few or hoarding or profiteering. There should be no exploited or exploiting classes. The fragmentation of property owing to laws of inheritance and the operation of the laws of taxation, such as zakat or jizyah (alms paid by non-Muslims), khardj (land tax), ju`l (compensation for work, especially military service of a substitute), the chief beneficiaries of which are the poor, led to the establishment of a system that is more rational than contemporary communism or capitalism.
  3. Labor. Labor laws include the idea that there is an employer-employee relationship about which the precept of the Prophet is, “give the worker his wages before his sweat dries” (Ibn Majah, Kitab al-sunan, II, 638). The employer is bound to pay the laborer a full wage and to protect the work environment and to provide full facilities for work.
  4. Municipal administration. The functions of municipal administration and city authorities include safety of the people, health facilities, construction, gardening, public highways, markets, and so forth. Cleanliness and safety are subject to legal control. Traffic arrangements and footpath spaces are regulated. Thus, public places are controlled as public properties. The law of waqf, controls religious endowments.
  5. Ihtisab. A characteristic feature of public law is its injunction to create a public body with special powers of supervision, investigation, decision making, and enforcement in relation to a particular problem. The Qur’anic injunction (surah 3. 100) requires that public welfare work, as well as the supervision of similar functions, be done through the principles of ihtisab. The Qur’an and sunnah offer guidance for the enforcement of good (al-amr bi-al-ma`ruf) and forbidding bad (alnahy `an al-munkar). The office of the performance of ihtisab is called hisbah, and qualified officers are employed as muhtasibs for proper enforcement of public morals, and those who violate ihtisab will be brought to the judicial department or the qadi. The duties of the muhtasibs will revolve around what is owed to God or man, that is, for example, the enforcement of fasting in Ramadan or daily prayers. Other functions include watching for corruption, bribery, nonpayment of debts, violation of public morals, and interference with public functions. The muhtasib also has power over things related to fraud and deception and other offenses, such as road obstruction, unfair trade practices (including price control, smuggling, etc.), and the administration of juvenile and guardianship laws.

BIBLIOGRAPHY

Ibn Majah. Kitab al-sunan. Beirut, 1975.

Khadduri, Majid. Islamic Law of Nations. Baltimore, 1966.

Mawardi, ‘Ali ibn Muhammad al-. Al-ahkam al-sultantyah. Cairo, 196o.

Shaybani, Muhammad ibn Hasan al-. Al-siyar al-kabir. Cairo, 1967.

 

Azhar Niaz Article's Source: http://islamicus.org/public-law/
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  • writerPosted On: July 1, 2017
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