5.2 Human Laws

5.2.1 Introduction

The contradiction between divine laws and human laws is an age-old discussion. This, in fact, fits in the context of “How does reason relates to faith?” The ancient Greeks spoke of logos (ratio) versus mythos (belief). They tried to explain everything rationally.

The Islam has known the tension between mind and faith in the past as tarud al aql wa annaql. Several scholars, such as the great muslim philosopher Ibn Rushd (Averroes)1 has attempted to remove that contradiction. In his book Fasl Almaqaal (the decisive word) he spoke out the fatwa that reason and Islam complement each other and do not contradict each other.

Ibn Rushd explains how to interpret the Quran in such a way that it doesn’t contradict with reason. In fact, using reason is a religious obligation, he says. He substantiates this statement with a few verses such as “Take this for your example, O you understanding ones” (Quran 59: 2), “Have they not seen the kingship of the heavens and the earth, and all the things that God has created?” (Quran 7: 185).

Ibn Rushd explains the first verse as follows: “This is a textual foundation for the obligation to use logical reasoning, or possibly a combination of logical and legal reasoning.”2 The second verse, according to the author, is an incentive to study everything that exists.3 Then he comes to the conclusion that the Quran obliges man through reason to think about everything that exists.

Ibn Rushd was strongly convinced that it is impossible for reason to be in contrast with Islam. That is why he says: “After all, the truth is not contrary to truth, but rather must agree with it and be a confirmation of it.”4 With the first truth he refers to the truth that one obtains through the mind and the second truth refers to Islam. Finally, he concluded his book with the following statement: “... by this I mean that the mind is the friend and foster sister of religion.” In other words, reason and faith are two methods of finding out the truth.

Of course, everything depends on the interpretation of rules in the right context. If you choose for a litteral interpretation of rules of centuries ago in order to apply them today, you will face some problems. By the way, the Prophet has never been obsessed with the rules, but with justice as an outcome.

5.2.2 Definition of Divine Laws

Divine law according to Islam is the will or guidance of Allah revealed to man through his prophets. This will or guidance can be found in the first place in the Quran and in the second place in the Sunna.

The basic question is, “How can man find out the will of Allah?” Many Islamic scholars have investigated this very carefully. They use the method called ijtihad.

Ijtihad is a well-known term in Islamic teachings. The term literally means “to make every effort”5.

After all, every effort is made in order to create an opinion on the guidelines of Islam. It is important to emphasize that it’s an opinion for no one can claim the absolute truth with all certainty. In other words, no one represents God on earth and only He knows the absolute truth. That is why all scholars always end their ijtihad with Allahu a’lam ( wich means “Allah knows better”). In short, the divine laws include the will or guidance of Allah and these are interpreted through ijtihad.

Each country has its own legal system to maintain order in society. Human Laws strive for harmonious societies in which justice and equality stand central. Therefore, people are expected to fulfill duties and avoid sociaty harming behavior.

5.2.3 EXERCISES

1. What was the fatwa that Muslim philosopher Ibn Rushd spoke out in his book Fasl Almaqaal?

2. Was Prophet Mohammed obsessed with rules?

Religious obligation - Complement- Muslim Philosopher - Quran - Reason

Islam also had known a tension between and belief in history. Ibn Rushd a great raised this in his book Fasl Almaqaal pronounced a fatwa. In his book he emphasizes that reason and Islam are mutually exclusive and certainly not contradictory. In his book Averroes teaches us how to read while taking into account the rules of interpretation. According to him, it is even one

5.3 The Reconciliation Between Divine and Human Laws

5.3.1 Introduction

Each country has its own legal system to maintain order in society. Human Laws strive for harmonious societies in which justice and equality stand central. Therefore, people are expected to fulfill duties and avoid sociaty harming behavior.

5.3.2 Meaning and Function of Human Laws

Human or secular laws6 are not inspired by religion. In the Roman Empire, religion was a state affair (state religion) where the state tolerated or suppressed certain religions. Christianity became the state religion of the Roman Empire in the 4th century. Until the 18th century, there was a direct relationship between church and state: coronation of the emperor by the pope, appointment of bishops by the local king, link between local law and church law, inquisition, local tax and church tax, waging war in the name of religion,…. This direct relationshop started ending from the Enlightenment: the state did not interfere anymore within the personal faith of the citizens, nor with the church, and the church does not interfere with the state. A separation of institutes arose. Therefore, the state from then on cannot condemn or punish anyone for particular religious beliefs and it does not determine or judge the truth claim of a religion.

The European model has always left room for religion and allows people to draw inspiration from their faith. Freedom of religion is thus an important good in Europe. As long as that inspiration is in accordance with the constitution, science and reason, it can fit within the story of European values. But this requires a reflection for muslims by reading their faith more to the spirit and less to the letter.

Philosopher Karl Popper7 makes a difference between “the context of discovery” and “the context of justification”. The “context of discovery” indicates where a theory comes from and that it should not play a role where the rule comes from. Someone may even dream about a theory.

The “context of justification” means that the theory must be subjected to scientific methods. If the theory passes this test, it can be a plausible and useful theory.

Moreover, laws are nothing more than values converted into standards. Values can have their origin anywhere, even in ideological ideas. Laws are not secular or religious, laws are formal rules of the game that can be justified or articulated into a common basis in the public space from both secular and other philosophies of life. For believers, those values grow from the fact that every human being is a child of God. Rationalists see every person as a rational being and seek their values from that rational perspective. Utilitarians start from the idea that everyone is entitled to the highest form of happiness and ecologists refer to the idea that everyone is part of an ecological system seeking a balance. In this way there is a common basis that be formed into different laws. In addition, standards are not static, but dynamic and evolving depending on the context.

5.3.3 Exercises

Definition of values:

Definition of norms:

A. Make a list of 5 values that are importat to you.

B. Creat Students create their top 3 of values:

1. Fist case: Anes’s friend makes a discriminating comment about a female classmate. Anes thinks his friend’s comment is unacceptable.

In conflict of value, you start doubting between two values that are conflicting. What are the conflicting values in the case of Anes and his friend?

Answer: Friendship(between Anes and his friend) and gender equality.

• What value would you let go first in this situation. Why?

• Second case: Wearing a headscarf is very important to Selma. Her headscarf helps her express herself in her own way. At school on the other hand, they think Selma should take off her headscarf. Religious symbols are prohibited at school, this is stated in the school regulations. Selma finds her education very important and has a lot of respect for the school, but she also considers her freedom, self-determination and religious beliefs important.

• What are the conflicting values in the case of Anes and his friend?

Answer: Neutrality, No religious symbols in public, self-determination, Free expression of belief

5.4 The reconciliation between divine laws and human laws

5.4.1 Introduction

“If we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment”8.

This citation from former Archbishop of Canterbury Rowan Williams points out that the expanded meaning of the term Sharia is very important. In other words, it is unjustified to reduce the term sharia to a narrow interpretation of Islamic criminal law.

The correct interpretation of the term is important to know whether or not there is a contradiction between divine laws and the human laws. Many people associate the term sharia with injustice, harsh legislation and brutal punishment such as oppression of women, corporal punishment, etc. This is because the media, certain politicians and jihadists use the term inappropriately. But are they using the term correctly?

The meaning of the term sharia means more than just Islamic law. It does not only contain legislation but also rituals, doctrine and philosophy. It is therefore incorrect to limit the translation of sharia only to Islamic law.

Sharia is not a law that contains strict rules. There is no book on sharia that contains islamic laws as is the case with the Belgian code. All books on Islamic fiqh are individual interpretations of the Quran and Sunnah.

Allah’s words are eternal, but the one who interprets Allah’s words is only a product of his time. There are thousands of tafsiers and books about the fiqh, everyone has a different interpretation and opinion. All those books are obviously works made by humans and therefore may contain errors in contrast to the words of Allah.

5.4.2 What does sharia really mean?

The Arabic term sharia originally means the path that leads to the water. This does not refer to a well from which you get water, but refers to the road that you have to follow to find a fertile place or a place where water flows to.

Water represents life. That means that sharia is the way to go to protect human nature. The natural disposition of man must be protected and this will automatically lead to a more just and peaceful society. Unfortunately, this term is often misinterpreted and misunderstood.

5.4.3 Contradictory or reconcilable?

Usually the term sharia is considered as Islamic law. This interpretation does not cover the entire content of sharia. Sharia largely contains religious norms pertaining to doctrine and rite (ibadaat), the latter of which falls within the freedom of religion granted by the European legal order. Article 9 of the European Convention on Human Rights guarantees freedom of religion and also guarantees its expression.

Even when sharia is translated as Islamic law, there is still a wide range of sharia norms that are fully consistent with European legal norms, provided the term sharia is understood in its entirety.

In view of the foregoing, there is no problem for Islam to function reasonably in a democratic state. Islam contains a large extent of religious norms pertaining to doctrine and rite, and the latter falls within the freedom of religion granted by Article 9 of the European Convention on Human Rights. On the other hand, Islam also contains many norms relating to social actions (mu’amalaat), but as mentioned earlier, it is Islamically legitimate to approach this category rationally provided that Islamic principles are taken into account. And the latter almost always coincide with Western norms and values.

So if secularism means the separation between Church and State and the State determines its norms and values by reason, then there is no problem. Because the State usually regulates the mutual social actions of its subjects on a rational basis, which is an Islamic belief, provided that justice is the ultimate goal. If secularism is a form of managing philosophical diversity, then Islam has no problem here either. For it is Islamic irresponsibility to enforce any religion individually as plainly and clearly states Al-Baqara verse 256:

“In religion there is no coercion. Reasonable insight is clearly distinguished from corruption.”

As mentioned before, justice is the highest priciple of sharia and it doesn’t matter how this is realized or brought about as Ibn Alqayyim beautifully stated.9

5.4.4 Exercises

1. With what did you associate the term sharia?

2. With what did you associate the term sharia?

GLOSSARY

REFERENCES

M. AVERROES, Het beslissende woord, Kampen, Uitgeverij Klement.
M. FAIRUSABADI, Alqamus Almuhied, Beiroet, Al-Resalah Publishers, 2005
H. HUMBERTO, Islam and Enlightenment, Baltimore, Maryland, The Johns Hopkins University Press 2012, p 223