The Place of Justice in Islamic Law

 

There are many terms in Arabic used to mean justice namely ‘adl, and qisth.The word ‘adl in the Qur’an counts 24 words diffused in 11 chapters, while the word qisth amounts to 22 words in 16 chapters. It means that the principle of justice presides the crucial postion in the Islamic law. However, the theme of justice was scarcely discussed in the principle of Islamic law (uṣūl al-fiqh), except the current books of the principle of Islamic law.

Jasser Auda in his book “Maqāṣid al-Sharī‘ah as A Philosophy of Islamic Law: A System Approach” (2007) classified the maqāṣid into three categories; general, specific, and partial maqāṣid. He places the principle of justice in the first category i.e. general maqāṣid together with the principle of prosperity (maslaḥah). It means that the principle of justice and prosperity occupy the prime goals as well as bases in Islamic law. The formulation of Islamic jurisprudence (fiqh) should be done towards the principle of justice and prosperity of society.

Parallel with the Auda’s thought, Ibn Qayyim al-Jawziyyah in his book “I‘lām al-Muwaqqi‘īn” said that Shariah is based on the wisdom and people’s prosperity in worldly life and hereafter life as well. For him, sharia is all about justice and prosperity so any rules, laws and regulations that contradict against the principle of justice and prosperity are not the sharia and must be altered towards justice ones.

Gharawayn cases in Islamic law of inheritance are good examples. The gharawayn are the inheritance cases when the deceased survived by her mother, father, and wife or his mother, father, his husband. The divine rule of inheritance on the share of mother is one-third (fa li ummih al-thuluth) in default of the deceased’s children or two brother and sister or more but in the first case when the mother is allotted to one-third of properties, she will get double of father’s share as the husband gets three-sixth (3/6), the mother gets two-sixth (2/6) and the father gets residuary one-sixth (1/6). Even though the allotment of the inheritance conforms with the divine rule but contradicts against the principle of justice of inheritance i.e. the male’s share is double that of female when they exist in the same degree (li al-dhakar mithl ḥaḍḍ al-unthayayn). To alter this divine rule, Umar ibn Khaṭṭab interpreted and changed the meaning of the verse “fa li ummih al-thuluth” from one-third of whole property to one-third of residuary of property after allotted to the husband (thuluth al-bāqī). It means that the share of mother is one-sixth (one-third doubled with the residuary of husband’s share i.e. one-second). Therefore the share of husband is 2/6, mother is 1/6, and father is 2/6 and this allotment is suitable to the principle of justice of Islamic law of inheritance “li al-dhakar mithl ḥaḍḍ al-unthayayn”.

Based on the Gharawayn cases formulated by Umar ibn al-Khaṭṭāb, it can be concluded that the principle of justice should be placed as main concern for Muslim scholars in the formulation of Islamic law even when the divine rule contradicts against the principle of justice, it should be prioritized over the divine rule because the principle of justice is the base as well as goal of Sharia while this principle is always change over the time, condition and circumstance. The prioritizing the principle of justice over divine rule is parallel with the Najmuddin al-Ṭūfī’s view on the place of prosperity (maslaḥah) over divine rule.

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