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Makkah Tower Prophet Alhamdulillaah Muharram Muharram 2 Muharram 3 Ashura 12 Months Good Advice Sincerity 5

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All praises and adorations belong to Allah, the Lord of the universe. May the peace and blessings of Allah be upon His last messenger, and his household, and his companions, and all those who follow their path till the day of judgement. To proceed;

Anyone who follows Islamic Law or studies it carefully will find that it is distinguished by certain characteristics and unique qualities that are not shared by any other legal system. These characteristics have allowed it to enjoy stability, growth, and relevance for over fourteen centuries. It shall remain so until Allah repossesses the Earth and everyone upon it. The reason for this is that the Islamic law has a permanent and global character, because it is the final, divinely revealed law for the whole world, and because the religion of Islam is the last in the line of divinely revealed religions. It is, thus, necessary for the Sharia to have certain unique qualities that afford it the continuity and stability it needs to deal with the ever-changing requirements of human life over vast stretches of time and space.

Before discussing the most important of these distinguishing features between divine legislation (Islamic law) and positive law, we wish to point out that Islamic Law is much broader in scope and much more complete than any man-made code of law. Islamic Law covers all aspects of Law covered by “positive” law as well as other issues that such man-made laws do not touch upon. For this reason, one orientalist was of the opinion that there is no exact equivalent to the term “fiqh” in any Western language. There is nothing strange about this, because Islamic Law derives its principles and tenets from the Book of Allah that was sent down by the Most Wise, the Most Praiseworthy Creator, a Book that cannot be approached by falsehood from any angle.

Islamic Law, with its distinctive features, is unprecedented in the history of Law. Islamic Law is the broadest, most comprehensive system of legislation in the world. It was applied, through various schools of thought, from one end of the Muslim World to the other. It also had a great impact on other nations and cultures. Many nations of the world borrowed their own legal systems from Islamic Law by way of contact with Islamic Spain, Sicily, Turkestan, Bukhara, and the Balkans. In today’s time, it is considered one of the sources of world law.

Some of the unique differences between divine legislation and positive law are as follows:

1 . divine legislation(Islamic Law ) is divine revelation: All the injunctions of Islamic Law are revelation from Allah, so the one who is legislating for mankind is their Creator who knows best what will be of benefit to his creation in both this world and the next. He knows the psychological makeup of the human being, what will be in harmony with it, and what will clash with it. Allah says;

أَلَا يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِيرُ

" Does the One who created not know, and He is the Gentle, the All-Aware " Quran 67:14

 

Positive law, on the other hand, is the product of the human intellect that has limited powers and is subject to deficiency and error. This is the reason that the intellect can never truly comprehend the human soul and what is in harmony with the nature that Allah has placed within it. Therefore, the legislations that come from human effort may not always be suitable for human nature. Following the injunctions of Islamic Law is a way of worshipping Allah and earning His reward. Likewise, disobeying the Law amounts to disobedience of Allah and is a way of deserving His wrath.

As for positive laws, the impetus to obey them is the fear of reprisal from the political authority, not the hope of attaining blessings and rewards from Allah. Likewise, disobedience to such laws does not instill a feeling of wrongdoing as long as it goes unnoticed by the authorities.

2 . Agreement and suitability: The divine law(Sharia) suits all nations and peoples of different natures, habitats, races and languages, since its Maker and Legislator is Allah Almighty. He (Glorified be He) has full Knowledge of what was and what will come to be of human beings and their natural disposition, instincts, temperament and everything related to mankind, and He, the Almighty, is far Exalted from succumbing to any whims or desires. Allah says:

فَأَقِمْ وَجْهَكَ لِلدِّينِ حَنِيفًا ۚ فِطْرَتَ اللَّهِ الَّتِي فَطَرَ النَّاسَ عَلَيْهَا ۚ لَا تَبْدِيلَ لِخَلْقِ اللَّهِ ۚ ذَٰلِكَ الدِّينُ الْقَيِّمُ وَلَٰكِنَّ أَكْثَرَ النَّاسِ لَا يَعْلَمُونَ

" So set your face steadily and truly to the Faith: (establish) Allah´s handiwork according to the pattern on which He has made mankind: no change (let there be) in the work (wrought) by Allah: that is the standard Religion: but most among mankind understand not." (ArRum30:30)

Positive laws are legislated by humans whose knowledge, however good it may be, is still greatly lacking. If they knew what might happen today and tonight, they would never be able to tell you what might happen tomorrow. Moreover, if they were to know some of the various natures of human beings, they would still never be able to know all the natures of all humans. Hence, the laws they legislate do not suit all natures or all environments. Even though these laws are suitable for some people, they are not suitable for everyone.

3. Rectitude, truth and justice: Islamic Shari’ah corresponds with rectitude, truth and justice, so as not to lead to the possibility of errors, mistakes, oppression, and injustice in the legislation or to the submission to any whims or personal desires when drafting any law. Allah says:

وَتَمَّتْ كَلِمَتُ رَبِّكَ صِدْقًا وَعَدْلًا ۚ لَّا مُبَدِّلَ لِكَلِمَاتِهِ ۚ وَهُوَ السَّمِيعُ الْعَلِيمُ

" And the Word of your Lord has been fulfilled in truth and in justice. None can change His Words. And He is the All-Hearer, the All-Knower." (al-An’aam:115)

Almighty Allah Alone, Exalted is He above having any personal whimsical aims, is All-knowing of every matter, both externally and internally, and has all-pervading knowledge of the affairs of His people. He only commands them that which leads to their well-being and only forbids them that which is harmful to them. Positive laws, on the other hand, are prone to error, mistakes, and omissions, and they follow the whims of mankind. They, therefore, are never free of errors and faults, and are always being annulled, changed and altered. Allah says:

أَفَلَا يَتَدَبَّرُونَ الْقُرْآنَ ۚ وَلَوْ كَانَ مِنْ عِندِ غَيْرِ اللَّهِ لَوَجَدُوا فِيهِ اخْتِلَافًا كَثِيرًا

" Had it been from other than Allah, they would surely have found therein many a contradiction" (An-Nisa’:82)

4 . Stability and permanence in principles and flexibility in application: Islamic Law rests upon a set of stable, unchanging principles derived from the Quran and Sunnah. The texts of the Quran and Sunnah have been most carefully and accurately recorded and preserved. Most of these texts contain general injunctions for legislation without going into the precise details relating to application. This affords the jurist broad powers of discretion that allow him to take ever-changing circumstances into consideration.

The Islamic political system is a good example. The religious texts give a general outline of how it is supposed to be, which includes such things as justice between the citizenry, obedience to political authority, consultation between Muslims, and cooperation in righteous conduct. At the same time, the texts leave the application of this general outline to practical circumstances that require a measure of flexibility. The important thing is that the outlined objectives of Islamic government are realized, not the manner in which they are carried out or the different forms that this might take, so long as the injunctions imposed by the sacred texts and the principles of the Sharia are not violated.

In carrying out the objectives of the Sharia, there is a great degree of flexibility and a tremendous capacity for development. There is nothing to prevent the appearance of new injunctions that were previously unknown, in response to changing requirements. The jurists refer to this as the principle that legal injunctions change with the changing of time and place. With this principle, Islam leaves the door to juristic discretion open, allowing the jurist to refer all the matters that the texts are silent about back to similar issues where the texts have given a ruling.

The permanence and stability of these basic principles and the flexibility allowed in their application give Islamic Law a distinction not shared by any other modern legal system, because most of these other systems, while they attempt to respond to the needs of the day through continuous revision and reform, are sorely in need of a measure of substance and of sound principles, so that change and reform do not lead to the demise of their basic principles and fundamentals. The foundations and principles of most of these legal systems are exposed to change and substitution so much that they become the targets of sport and corruption for those who are in a position to set down such legislation.

5 . The spiritual aspect of man: Divine legislation tackles apparent and hidden actions. Allah Almighty says:

وَاعْلَمُوا أَنَّ اللَّهَ يَعْلَمُ مَا فِي أَنفُسِكُمْ فَاحْذَرُوهُ ۚ وَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ حَلِيمٌ

" And know that Allah knows what is in your minds, so fear Him. And know that Allah is Oft-Forgiving, Most Forbearing." ( al-Baqarah:235)

It is unlike that of positive laws, which only tackles the apparent sides, and completely neglects the spiritual side or that related with the Hereafter. As for the punishment in man-made laws, it is only worldly.

In conclusion, the stated is just an epitome on the differences between divine legislation and positive law.

 

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