The condition of man’s life having taken an aggregative shape and the need to establish contacts between him and his fellow human beings, has forced society to have a specific cord of conduct and morals that changes with the improvement and development of the society. With the understanding that man is not able to guide and lead human society to an everlasting happiness by merely depending on his intellect and innate power, nor is he able to enact laws that can lead him to that eternal bliss, it is only therefore logical that it is only Allah’s laws, who has created man and the universe, that can cater for that need.
Everything should be done in the orbit of Allah’s teachings and with the intention of obeying His orders. This is the only way of taking man close to the attributes of perfection. If man believes that it is Allah who guides the universe, enacts laws that lead people, which man is obliged to obey and execute and that Allah is watchful over whatever he does (Indeed your Lord is in ambush 89:14), he will definitely witness a very different social life. This is so because Allah will endow him with an everlasting happy life and reward him abundantly for the good deeds he will have done in this world, on the Day of Reckoning; Whoever acts righteously (whether) male or female, should he be faithful, We shall revive him with a good life and pay them their reward by the best of what they used to do (16:97).
Islamic laws are based on this noble monotheistic belief whereby anything that has been enacted and endorsed by Him gets legitimacy.
What is the source and basis of Allah’s laws and regulations? What are the realities on which Islamic legal, social…. etc systems are based? And is there any relationship between the Islamic legal and moral systems? These are some of the questions we shall be trying to answer in this article.
Akhlaq, which means morals in Arabic, is the plural form of khulq, which means character, conduct, nature, habit, and conscience. Experts on morals and philosophers have another definition of the word, which is closely related to the grammatical one. They say that morals and ethics bring man close to eternal happiness and real perfection and consider it to be an asset to his material and spiritual perfection. Morals identify desires and their motives and balance them while leading them to the correct, supreme goals of man’s creation. The goals of morals is to guard man against error in his conduct and lay before him a clear and suitable cord of discipline whose end-result should be the formation of an ideal society based on happiness, justice, security and co-operation.
Therefore we should search for the best scholarly view concerning this issue and a basis that is able to produce such a vibrant society which tallies with the real Islamic legal system. Is it that in an Islamic legal system, anything that has been enjoined is considered to be good and anything forbidden is bad? Has Islam enjoined some things and forbidden others because they are inherently good and bad or they happen to be so simply because Islam has said that one is good and the other bad? Had Islam encouraged deceit, oppression, and betrayal would they be good, and had it forbidden truthfulness, honesty, and justice would they be regarded as bad?
To answer these questions we must look at the different views of scholars. We have two views here. The first one is of the proponents of beauty and ugliness (good and evil) who say that Allah’s commands are governed by inherent goodness or evilness of things. The second group denies the rational beauty and ugliness of things and says that these two qualities supersede Allah’s command and that reason is not able to identify their ugliness. According to the first group, there is actually a right (truth) and its beneficiary, which is a reality in itself. According to this belief, there ware these two essential parts before God’s commands were issued, and that Islam arranged its laws in such a way that, every right had to go to its real and deserving beneficiary. However, according to the second group, a right, its beneficiary, justice and oppression are just but things that are not real and largely depend on how God enacts His laws. Therefore, right, justice, interest, and all other valuables are a reality according to the first group whereas according to the second one all these are just but a fanciful thinking. The proponents of this thinking associate all ugly and indecent acts to religion. The Holy Qur’an talks of them as follows: When they commit an indecency, they say, we found our fathers practicing it, and Allah has enjoined it upon us. Say, indeed Allah does not enjoin indecencies. Do you attribute to Allah what you do not know? Say, my Lord has enjoined justice (7:28-29).
These verses imply that some acts are intrinsically evil and ugly even before the issuance of commands. Therefore, if we confirm that Islamic laws supersede real beauty and ugliness and that these are realities that are recognized by Islam, then we shall be in a good position to set up Islamic principles based on universal realities. This will enable us to come up with laws that take into account human interests and checks harmful things, which could endanger his life, for his own ultimate perfection. As such if we can confirm that Islamic laws and regulations are based on morals, which are real and factual in essence rather than be subordinate to other things, then we shall be able to enact laws that are more valuable and credible.
Connection between Rights and Morals
Rights and morals which both fall in the precincts of values, regulate man’s optional habits and play an essential role in his spiritual perfection. They as well regulate order and security in society. They are after nothing else other than his eternal salvation and happiness. Therefore if a society builds its legal goals on a moral foundation, definitely that society will be different and distinctive from other societies. An Islamic legal system that originates from divine justice and stands on the foundation of morals cannot ignore the relationship that exists between these two important values while enacting it laws. This kind of laws ensures the welfare of the society, personal and spiritual values, as well as defining individual and social bliss.
We intend to prove here the fact that legal matters in Islam stand on the foundation of morals, and that moral virtues and decadence are realities, which have intrinsic beauty and ugliness that never fades away with the passage of time. As to the question of some people viewing beauty and ugliness differently due to the fact that some societies may count to be evil something that is considered to be good in others, we say that there is no conflict of view as to the necessity of enjoining good and avoiding evil. The difference occurs in the definition and interpretation of what good and evil is. We have two different vies here. Since time immemorial, there have been people who advocate the separation of the principles of morals and laws and this view emanates from Aristotle, the Greek philosopher. They say, he divided philosophy in three main parts, which are: Morals, household management and the city-state or the political community. They say that household management and city-state are discussed under rights while morals define the way of achieving happiness and salvation. It seems that his intention was the academic separation of these two branches of knowledge and not the definition of their application. This view had many followers in later centuries especially in the eighteenth century. Individual rights obsessed them more than anything else. They claimed that morals deal with individual rights and that its goal is to maintain internal personal tranquility and composure whereas rights deals with social matters and how one should relate with others in public life. Emmanuel Kant, a German philosopher played a bigger role in spreading this view more than anyone else. Many European lawyers built their views on this foundation many years even after his demise. In his view, an act gains moral value when it is done with good intention. Therefore if someone does something good out of fear of being punished, his act lacks value. What is important here is for someone to carry out his legal obligations with good intention and out of his free will without being pushed by something. He believes that there is difference between carrying out duties according to obligations and the carrying out of those duties for the sake of obligations. The act that is done for obligation merits moral value. For example, if one helps others for the simple reason of enjoying himself, then that act is of no moral value.
Although in Islam intention is also considered to be prior to an act, but this issue is criticized from a different angle. This is due to the fact that morals do not ignore the end-results of acts nor are rights independent of how humans’ intentions should be governed. Just as Islamic penal laws say that an intentional murder should be met with execution (retaliation), it also says that, murder that is committed by mistake should not be reciprocated with the same punishment, but that other penalties should be considered.
Should anyone kill a believer intentionally, his requital shall be hell, to remain in it (forever)” Allah shall be wrathful at him and curse him and He shall prepare for him a great punishment (4:93).
Intention is the main pillar in contracts and transactions. Therefore any contract or transaction that is done through compulsion or error is considered to be flawed and void. Morals are also not confined to individuals but rather just like rights; dictate how man should relate to others in society as well as his creator. Man cannot be indifferent to what goes around him in society and ignore the happiness as well as the grief of others. On the contrary, there is a group, which believes that if laws are enacted for the purpose of bringing morals in society then certainly it will make the running of society easier. Most rules especially divine ones that are compatible with human conscience and intellect are build on the foundation of morals. In other words they have moral goals.
George Riper, a French lawyer who authored a book on morals and won the French Academy Award believes that morals should not be taken merely as one of the foundations of creating rights. Moral law, in his view, is the main factor behind the creation and guidance of rights. He believes that morals are so crucial in respect to rights just as blood is to the body.
Muslim scholars also believe in the relationship between these two values and say that all divine and religious laws are based on moral factors. However, the difference that seems to emerge here is whether morals are the basis of laws and rights or they are the goals of rights. What do these two kinds of morals mean?
Before answering this question we better first elaborate a number of points to clarify the basis of different views.
(a) Basis difference and rights’ goal
The rights’ goal is that; one is not obliged to carry them out nor is he obliged to relinquish them. Although it is not obligatory to achieve rights’ goals, but it is recommended that one achieves them. The basis of rights being at par with goals means that it is obligatory to achieve the goals and that relinquishing them amounts to committing sin.
(b) Moral classification
1- Sensual Morals: These are sensual instincts and habits, inward and spiritual attributes and creational attractions.
2- Behavioral Morals: These are acts and behaviors that originate from creation like appropriate spirit and bravery. The way one handles and behaves with them is what is called behavioral morals. These two morals have reciprocal effects on each other. Natural instinct and habits affects acts and behavioral morals whereas acts also have an important reciprocal role in strengthening sensualities.
We have two views in answering the above question. There are people who believe that moral musts and must nots are all rights’ goals and not their basics. For example Love, beneficence and excessive generosity are all grouped as rights’ goals because their performance is neither obligatory nor essential. But the implementations of things like justice, which are classified, as rights’ basics are obligatory while relinquishing them is forbidden and haram. This group explains the benefit of this division as: The role of the rights goal is to help the implementation of the rights’ basics. If there is no goal then certainly there is no guaranty of the rights being implemented. This is one of the reasons why God’s divine rights are superior to those that are created by man.
Is moral principles part of rights’ goals or is it that the goal of both branches of knowledge is to create an ideal society based on happiness, justice and security? Does one honor morals by simply respecting their values or is it that the principles of Islamic rights based on morals have been there from the very beginning? It seems that in order to clarify the basics of rights we have to dwell on morals by first elaborating their basics.
On the opposite side, we have another group of scholars who say that morals are the foundation of rights and that these morals are the ones that consolidate, regulate and create rights. It is from this view that it can be proved that morals are among obligations whose relinquishment amounts to committing sin. The guaranty of implementing moral issues is inwardly based and conscientious. It wholly depends on one’s faith and his believe on honoring them. If these basic issues are made to be the foundation of rights, then morals have the capacity of guarantying their goals by penetrating man’s heart and shaking him from the inside. Ayatullah Jawadi Amoli a contemporary philosopher is of the view that Morals are preceded by rights values. This view seems to agree with the Holy Qur’an, which calls upon people to honor and respect justice and then orders them to be kind. Indeed Allah enjoins justice and kindness (16:90). Advocators of the second view defend it by saying that the above-mentioned verse stresses on the need to execute justice and kindness in the same capacity without favoring one over the other. Justice means the granting of rights. Allah’s order has been directed at the two in the same magnitude and therefore it should not be said that one is wajib and the other mustahab (recommended). All the same, although the verse indicates that the two are wajib but it seems that the magnitude of compulsion differs in them and in stages. If there were no kindness then justice would not have existed. If there is no kind person then justice has no meaning. Therefore kindness is the basis of justice.
Qur’an says: There is life for you in retribution, O you who possess intellects! (2:179)
Although rights issues are after particular goals but this verse here does not mean that the end-result of retribution is life but rather what it means is that life is the foundation of retribution and not its outcome. Martyr Mutahhari has a clearer elaboration on relative moral issues. He says that morals have goals and that Islamic laws have been enacted to achieve those goals. Things that are well perceived are divided in two parts. Some are good in essence while others are so by virtue of their being introductory to intrinsically good things. This is also the case with bad things. People don’t differ in the good and bad entities but differ on their preliminaries. Hijab may be perceived to be bad in one society and good in another but the moral yardstick here should not be the goodness or badness of hijab. What is important here is the chastity and modesty that is entrenched in human nature. Hijab is just the means and way of reaching that chastity. Therefore being a moral value, chastity is the goal, which should be achieved through hijab.
If we look at moral values as a social culture then definitely these values will be regarded as recommended acts that carry no obligatory values. The end-result will be the formation of a dry and lifeless society devoid of any spirit. It is true that today no one is taken to court for ignoring moral values but will this be the case on the Day of Reckoning? Definitely not. No one is penalized in court for not honoring his promise, not helping the needy or for misbehaving but definitely he shall be reprimanded on the Day of Judgment. Morals are not indifferent even to matters that seem to strictly deal with rights. For instance, a university could form its own by-laws that have no apparent moral connotations. However regulations and rules that relate to registration and examinations cannot be enacted without taking moral into account. This is so because; although morals have no specific law concerning the registration of students, but then its relinquishment will obviously bring chaos and disorder in the running of the institution. Therefore it is clear that the need to put regulations in place as far as this case is concerned originates from the foundation of morals. In other words, morals dictate that we should strive to have a stable and secure society, and that laws that are enacted towards this end help a lot in achieving that goal.
On this basis, is a judge allowed to give a moral-based verdict in matters where there are no specific legal directives? To answer this question one has to look at the different views concerning the two groups of morals. The first group that considers morals to be the rights’ goal is more concerned with behavioral morals than anything else. It means that they are more concerned with the strengthening of acquired morals than rights. For those who consider morals and its values to be the foundation of rights are more concerned with the sensual and natural part of it. They believe that Islam has a natural foundation in nature on which rights are based. The say, if the foundation, which is of a divine creation, collapses then rights is no more. Qur’an says: Certainly We have honored the Children of Adam. This honor has been entrenched in human nature. Man has been created with this quality. If the honor is taken to be the basis of human rights, the result will be that man’s life, his home and property should be respected and that his right of ownership should not be ignored. If we look at Islamic laws especially those that deal with family matters, we find that moral rules are more stressed than rights. This quality can play an important role in reducing the vulnerability of family members. Morals are more important than rights in regulating husband-wife relationships. Sentiments, love, and faithfulness speak louder than anything else in marital life. Qur’an says that the goal of marriage between the two is the attainment of comfort and composure. And of His signs is that He created for you mates from your own selves that you may take comfort in them, and He ordained affection and mercy between you (30:21).
No law can force man to leave in peace and happiness with his spouse neither can it force a wife to respect her husband and be faithful to him. A Family environment is full of sentiments and feelings and therefore rules that apply here should be basically different from those that apply in other areas. The Holy Qur’an has even suggested moral ways of dealing with family conflicts and differences. And if you fear a split between the two of them, then appoint an arbiter from his relatives and an arbiter from her relatives. If they desire reconcilement, Allah shall reconcile them (4:35).
Islamic law specialists even say that the two arbiters’ verdict is binding only when it is in favor of the two couples remaining in their wedlock otherwise it is not executable. Having built its laws on the foundation of human honor, Islam is equally mindful of people’s problems and has proposed ways of solving their conflicts and differences. We hope that lawmakers and executors of this divine legal system will take note of this important point.