JUSTICE

Batoota — Thu, 17 Jul 2014 19:09:21 +0000

JUSTICE. [This entry comprises two articles. The first discusses concepts of justice that inform Islamic political discourse and that, more broadly, suffuse the Islamic worldview; the second focuses on the notion of social justice in modern Islamic thought as developed in the writings of Sayyid Qutb and others.]
Concepts of Justice
It has been argued that if the Christian worldview is predominantly cast in terms of love, then the Islamic one is suffused by a discourse of justice. As one commentator has put it, “neither in the Qur’an nor in the Traditions are there measures to indicate what are the constituent elements of justice or how justice can be realized on Earth” (Khadduri, 1984, pp. 10-11). However, the ideas of paying one’s moral and fiscal debts and of tempering retribution with mercy are features that characterize both God and the just person. For an individual to be `adl (just) is, as the term implies, to be balanced, to engage in acts that are framed by an awareness, born of the pursuit of reason over passion, of the harm that may be done to the ties that bind individuals to one another and all believers into a single community. The Qur’an (6.152) thus enjoins one to “be just, even if it should be to a near kinsman” and demonstrates practical application when, for example, it recommends that contracts be written down in order to avoid subsequent doubt. It is, therefore, possible to see in the Qur’an and Muhammad’s own actions an implicit theory of justice that informs later interpretations and applications.
Central to the prophetic conception of justice are three features: relationships among men and toward God are reciprocal in nature, and justice exists where this reciprocity guides all interaction; justice is both a process and a result of equating otherwise dissimilar entities; and because relationships are highly contextual, justice is to be grasped through its multifarious enactments rather than as a single abstract principle.
Just individuals are those to whom power appropriately devolves, because they have regulated their ties with others according to balanced, reciprocal obligations. These reciprocal obligations reduce social chaos and facilitate ever-greater networks of indebtedness among those who develop their God-given reason to understand the divine word and the mundane world alike. Justice as the process of equating implies that reason and experience must be used to calculate similarities, a process that shows itself in qiyas (analogic reasoning), no less than in attending to the differences between men and women, Muslims and non-Muslims, and assigning each category to its respective domain. The contextual quality of justice shows itself in the quest for an understanding of the spheres within which each person or historical moment exists and the ways in which fundamental qualities and kaleidoscopic changes must be scrutinized and balanced.
The elements of Islamic justice were the source of contention among moral and political theorists from the outset of Islam. During his lifetime the Prophet governed in direct accord with divine precept. After his death disagreement centered on which line possessed the capacity to rule justly and which procedures for rule should hold sway. For Sunnis political justice lay in acknowledging legitimate authority through ijma` (community consensus); for the Shi’i it lay in the strict perpetuation of the line of legitimate succession. For the Sunni the ruler’s legitimacy was in theory hedged by the need for shura (consultation). The Sunni Umayyad dynasty, however, combined the doctrine of an elected caliph with the idea that the responsible believer is the one who does not fail to obey the legitimate successor to the Prophet. Others, known collectively as Qadiriyah, believed that each man is responsible for his own acts and that political justice lies not in compulsory obedience but in holding even the caliph responsible for his unjust acts.
Notwithstanding its claims for continuity, the model of the caliphate failed to provide specific guidance for a theory of the just sovereign. During the brief period in the eighth century when the `Abbasid dynasty favored them, the Mu’tazilah argued that divine justice is beyond human grasp but that human reason can best approximate divine justice through the exercise of reason and free will. Indeed, they argued, it is by such acts that one gains unity with that inner sense of justice toward which all men are naturally directed. Although the Mu’tazili emphasis on reason and unity brought them into conflict with more powerful opponents, the terms of the debate were set: to the legalists (including the later systematizer al-Shafi’i [767-820]) men choose to do justice or injustice through their adherence to the law; to al-Ash’ari (d. 935 or 936) men could do justice but could not create its very terms; to al-Tahawi (d. 933) and al-Baqillani (d. 1012) the very uses to which God’s created justice are put are themselves creative acts. By contrast, the Shi`i theorists of the Buyid and Fatimid dynasties of the tenth and eleventh centuries argued that, in the absence of an infallibly sinless imam, men may even defend themselves through taqiyah (dissimulation) against an unjust caliph-a practice that Sunnis regarded as little more than personal convenience. To both of these positions Sufi theorists, such as Ibn al’Arabi (1165-1240), countered that justice can be made manifest in this world not by creative acts of reason but only by engagement in ecstatic devotion.
As Islam spread into new territories and as contact with classical Western thought increased, Islamic thinkers had to consider the practical applications of justice in law and politics. The Virtuous City of al-Farabi (c. 878-c. 950) was to be characterized by the division and protection of all good things among the people; the Just City of Ibn Sina , (98o-1037) was constituted by a social contract among administrators, artisans, and guardians, the welfare of all being secured by a common fund of resources. As the demands of actual administration increased, specific content for these propositions developed. The concept of maslahah (public interest), as elaborated by al-Ghazali (1058-1111) and al-Tawfi (d. 1316), received legal force by calculating social consequence against individual interest; procedural justice lay in the qualities of the judge’s character, in the use of a council of adviser/assessors, in the use of advisory opinions by outside scholars, and in the increasing use of elaborate procedures for ascertaining the credibility of witnesses. The traditional absence of appellate structures reduced dependence on any fallible judge, although the accepted legitimacy of different schools of Islamic law and resident experts allowed local custom to inform the practice of daily justice.
Because justice was seen to pervade all domains of life, Islamic thinkers sought to unify political, legal, and social justice. In the face of Mongol invaders and Western crusaders, Ibn Taymiyah (1263-1328) sought to stem the decline of Islam by urging that despotic rulers must give way to a politicized shari `ah (the divine law) in which, for example, precedence would be given to family unity over emotion-laden repudiation, and just wars would be limited to defensive actions. From his initial emphasis on society as a fluctuating balance of religion and `asabiyah (social solidarity), Ibn Khaldun (1332-1406), observing the decadence of fourteenthcentury Egypt, increasingly stressed procedural regularities and ta’zir (discretionary penalties) as a check on political injustice. Although he and others believed men were inherently unjust, their more secular political approach to issues of justice had to wait until later ages to achieve a more activist orientation.
The intrusion of Western colonialists, particularly in the nineteenth century, prompted two major strands of thought on the question of justice. Modernists sought to include institutions modeled after those of the West into their political systems, although traditionalists found Western approaches inconsistent with Islam. Jamal alDin al-Afghani (1838-1897) believed that the injustices of Muslim despots could be rectified by renewing the principle of consultation in the form of elective assemblies and by the political unity of all Muslims against Western powers. Like his predecessors he combined moral renewal through revitalized virtues with a political program that would insure fuller community participation. But when al-Afghani’s proposals failed to move Muslim tyrants or the populace at large, some, like his student Muhammad `Abduh (1849-1905), looked to Western procedural standards, which they did not regard as incompatible with Islam, for guidance. As a judge and grand mufti, `Abduh issued fatwas allowing, for example, the use of interest through postal bank accounts. He often spoke in terms of revelation and natural law as well as in terms of the compatibility of revelation with evolution and social reformation, but his equivocation and his deep concern with the moral transformation of society signaled precisely the dilemma faced by many of his era who were drawn to both Western and indigenous forms of injustice.
Many of the conflicts between modernists and traditionalists centered on the adoption of new legal codes. The very idea of a code was largely a Western one, but the process of codification forced many Muslims to consider which propositions they regarded as essential to Islam and which as dispensable accretions. Moreover, the process of adopting codes offered the opportunity for establishing a system for legal changes. Of central importance was the formulation of the Mecelle (Ar., Majallah; Civil Code), which was applied throughout Ottoman territories in the 1870s. Together with the short-lived Ottoman constitution of 1876, it marked the trend that culminated in Turkey’s unilateral disestablishment of Islam and its wholesale adoption of European codes. By contrast French colonial territories adopted French commercial and criminal law, but these countries retained relatively intact their Islamic family law practices until they achieved national independence. [See Mecelle. ]
Owing largely to the efforts in the late 1940s of the Egyptian jurist `Abd al-Razzaq al-Sanhuri (1895-1971), civil codes were drawn up for Egypt, Iraq, and Kuwait, with other countries drawing on elements of his work. In each instance the codes left it to shari ‘ah principles to fill in where the code was silent. In fact, more often than not Western substantive law filled in the whole of the civil law, and the sense of distinctive Islamic principles-of fault and liability, of intentionality in contracts or unconscionable agreements-was largely replaced by non-Muslim concepts.
By contrast, the strain between Western Islamic standards of justice has been most significantly tested in family law. Following independence in 1956, Tunisia took the more extreme position, formally abolishing polygamy and requiring all divorces to be pronounced by the judge. At the other extreme, Pakistan and the Gulf States continued highly traditional forms of Muslim family law, largely unaffected by outside forces. In between lay a vast array of compromises: from Morocco, where the code remains very close to Maliki principles but places increased discretion in the hands of the qadi (judge), to Malaysia, where ‘adat (local custom) grants wives a share of all marital assets at the time of divorce. [See Family Law.]
The struggles over appropriate laws of personal status have profoundly affected views of the nature of Islamic justice: as women became more educated and occupied a greater role in the economy, justice was conceived by many as requiring greater equalization, though not full equality, of men and women. At the same time the very forces that led to such liberalization contributed to the backlash against it: fundamentalists, from Ayatollah Ruhollah Khomeini in Iran to the Muslim Brothers in Egypt, find the relations of men and women one of the domains where Western influence has distorted justice by rendering an imbalance among what they see as natural differences.
Similarly, in the criminal law the precepts of divine revelation have been read to imply hudud (invariant punishments) for listed offenses and ta`zir (discretionary punishments) for a broader range of infractions. Some of these penalties, though rarely applied, conflict with international human rights conventions, while others bespeak localized standards of justice-as when, for example, a learned man may be held to a higher standard of behavior than an unlettered one, because his acts are thought to have greater consequences for society. Recent attempts by the ministers of justice of Islamic nations to compose a uniform penal law has yielded a document none is likely to adopt, because each nation adheres to quite different standards of punishment. The very process of drawing up such a document reveals both the commonalities and the discrepancies wrought by different histories and attitudes. [See Criminal Law; Hudud.]
Issues of social justice have also taken very different paths. Although the language of distributive justice is broadly shared, neither modernists nor traditionalists have succeeded in capturing its terms for any universally accepted program. The combination of Islam and socialism in Algeria and Libya, for example, has resulted in the greater use of the central government for the redistribution of resources; moderate states, such as Indonesia and Jordan, have used public funds to reconstruct the educational system and provide greater security against disaster. But again, what is seen to be just depends far more on the political and economic circumstances of each country than uniformly adopted beliefs about Islamic justice. In this respect the intellectual history of the concept of justice replicates much of earlier history, for it is the local amalgam, proffered as distinctly Islamic, that both unites and separates Muslim nations.
One common concern is the nature of economic justice, exemplified by the permissibility of charging interest. Ribd, which is usually translated as “usury” but more accurately refers to any form of unjust enrichment, was historically avoided by various legal fictions. The rise of Islamic banking, however, has resulted in practices that are commensurate with modern economic institutions but are felt to conform to the prohibition on interest. This development is particularly important, because it is rare for Islamic conceptions of justice to be embraced in specific institutional enactments. [See Banks and Banking; Interest.]
As fundamentalist regimes have taken power in Iran, Sudan, and several Malaysian states-and as their influence expands in Pakistan, Algeria, and Jordan-the equation of shari`ah with justice has been no more fully consummated than at other times in Muslim history. Although formally preeminent, Islamic law is not, in fact, given unalloyed application in any of the Islamic republics. Moreover, justice-in the sense of receiving a fair share of the wealth of the state-has led to an emphasis on delivery of actual services rather than the imposition of formal law alone. Thus the terms of justice have been put into play once again, and the quest for new equivalences, contexts, and forms of reciprocal obligation have become embroiled in bureaucratic and party structures.
If justice is central to the way that Muslims think of themselves, it must also be noted that jawr (injustice) plays no less a role. Injustice is often felt rather than articulated, and Muslims tend to believe, like Montaigne, that institutions, far from eradicating injustice, often provide a forum for its elaboration. Justice, for most Muslims, can only be expected where face-to-face constraints allow reciprocity to work, whereas the state is seen as unreciprocity incarnate. Where international actions or local corruption lead to a felt sense of imbalance, the personal offense that is taken is profound. justice, to Muslims, is not, as Adam Smith had it for the West, the least of the virtues, because it is one that merely entails the avoidance of harm. Rather, justice is the most essential, if indeterminate, of virtues for Muslims, because it keeps open the quest for equivalence, a quest seen as central to both human nature and revealed orderliness in the world of reason and passion.
[See also Law, article on Legal Thought and jurisprudence.]
BIBLIOGRAPHY
Abdul Mannan, Muhammad. Islamic Economics: Theory and Practice. London, 1986. Thorough analysis of the implementation of banking, trade, planning, and labor relations in accordance with revitalized Islamic concepts.
Antoun, Richard. Muslim Preacher in the Modern World. Princeton, 1989. Case study of a Jordanian preacher whose sermons exemplify popular justice.
Ewing, Katherine, ed. Share at and Ambiguity in South Asian Islam. Berkeley, 1988. Collection of essays showing the relation of various Muslim law codes to local customs and historical situations.
Iqbal, Munawar, ed. Distributive Justice and Need Fulfillment in an Islamic Economy. Islamabad, 1986. Essays by Muslim scholars on landownership and poverty law that could be practiced in accordance with Islamic precepts.
Kassem, Hammond. “The Idea of Justice in Islamic Philosophy.” Diogenes 79 (1972): 81-108.
Kerr, Malcolm H. Islamic Reform: The Political and Legal Theories of Muhammad `Abduh and Rashid Ridd. Berkeley, 1966. Excellent analysis of the idealist tradition in Islamic jurisprudence as represented by two leading thinkers of the late nineteenth and early twentieth centuries.
Khadduri, Majid. The Islamic Conception of Justice. Baltimore, 1984. The most comprehensive study of texts on Islamic justice, covering classical as well as modern writers.
Mahmood, Tahir. Family Law Reform in the Muslim World. Bombay, 1972. Carefully selected and translated excerpts from codes promulgated in almost every modern Muslim nation.
Mammeri, Mouloud. The Sleep of the Just. Translated by Len Ortzen. Boston, 1956. Algerian novel demonstrating the conflicted sense of identity and justice surrounding the life of an Arab living under colonialism.
Rosen, Lawrence. The Anthropology of Justice: Law as Culture in Islamic Society. Cambridge, 1989. Study of a modern Islamic court in Morocco and its implementation of justice in the light of current social and cultural norms.
Yamani, Ahmad Zaki. Islamic Law and Islamic Issues. Jeddah, 1968. Insightful study of Islamic law as practiced in a traditional Islamic context by a scholar best known as Saudi Arabia’s former oil minister.
LAWRENCE ROSEN
see social justice also

JUSTICE – Hybrid Learning

JUSTICE