The Supreme Court of Canada has ruled recently in favor of upholding a Quebec law which states that there is no support for common law partners upon separation. The ruling came as a result of a vote between 9 judges, with 5 in favor of upholding the rule and 4 against.
The significance of this ruling lies at the foundation of its legal framework, which is that man is the source of legislation. This case begins with the notion that sexual relationships outside of marriage are normal, which, as a result, require the courts to deal with the consequences of breakups in such relationships.
It is naturally expected that justice results from any governing system, especially at the judicial level. This recent case provides a startling example of how laws are struck down or upheld by a mere vote. The Supreme Court decision goes to show how man-made legislation can vary with profound implications on a major social pillar of society, the family, simply as a result of a difference of opinion.
One of the most visible flaws of man-made laws is its random variations over time and from one person to another. What is wrong and unacceptable one day becomes right and acceptable the next day. Such turmoil is caused by the limited nature of the human mind. The human mind’s main flaws are as follows:
- Prone to disparity. Different people will reach different conclusions about the same issue under the same circumstances. For example, although the panel of judges were presiding over the same case, they came to different conclusions.
- Limited in its capacity to think. Humans are different in their ability to understand and process facts.
- Influenced by the environment. Humans are naturally influenced by societal norms, personal experiences and influential forces in societies.
- Subject to change over time. For example, in the past in Canada, relationships outside of marriage were not an acceptable norm and homosexuality was considered a crime. However, today, these lifestyle choices are considered legally acceptable relationships.
There are many examples of such changes in laws and norms over time and from one place to another. This is the nature of human thinking when it is not bound by a comprehensive, correct and an unchanging, source of guidance.
Human judgement is naturally limited and inherently incapable of providing justice in this life, whereasIslamic laws (shari'ah) have the ability to effectively solve societal problems in a just and comprehensive manner, as they come from the Creator of man. For Islamic laws (shari'ah), however, to provide justice and the correct solutions, they must be implemented comprehensively in an Islamic governance system (Khilafah).
Governance and the sources of legislation in Islam
It is well known that the system of governance in Islam is the Khilafah. This system is well rooted both in the Islamic shari'ah and the history of Islam. The Prophet (saw) said, "The Prophets ruled over the children of Israel; whenever a prophet died, another prophet succeeded him, but there will be no more prophet after me. There will soon be khulafah and they will number many. Fulfil the bayah [i.e. pledge of allegiance] to them one after another and give them their dues for Allah will verily account them about what He entrusted them with". [Al-Nawawi, Riyad us Salihin]
The Khalifah is the guardian of the people and his task is to ensure that the Islamic laws (shari'ah) are implemented so that justice prevails. Allah (swt) says, "And if you judge, judge with justice between them. Verily, Allah loves those who act justly". [TQM 5:42]
Under the Khilafah, the power of legislation lies not in man but in the Creator of man. There are many ayat in Quran that clearly state that every rule in this life has to come from what Allah (swt) has revealed to the Prophet (saw). Allah (swt) says:
"And so judge (you O Muhammad) between them by what Allah has revealed and follow not their vain desires…" [TQM 5:49]
The command (or the judgement) is for none but Allah". [TMQ 12:40]
Consequently, it is the shari'ah, revealed to us from Allah (swt) – that governs and not the people. Allah (swt) in His perfect Wisdom and Mercy gave humanity the righteous Aqeedah of Islam. All laws emanate from the Quran and Sunnah, the two main sources of legislation, leading to a consistent and just regime of rules over many centuries when Islam was implemented in the Khilafah State.
The Shari'ah rules within the Islamic governing system
The rule of law at any time relies on the people, governing system and the judiciary system. Islamic history is a witness to how the three aspects interacted to establish and sustain the implementation of Islamic law.
a) The people
"O you who believe! Obey Allah and obey the Messenger (Muhammad), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger" [TMQ 4:59]
Allah has thus obliged Muslims to obey the ruler who rules by the shari'ah. Moreover, the Prophet (saw) said, "A Muslim is obliged to hear and obey whether he likes it or not, except when he is required to do something that is sinful, in which case, there is no obligation to hear or to obey". [Bukhari and Muslim]
Unlike democracy, where obedience to the law of the land is achieved through coercion by the state, Muslims historically lived by and obeyed the laws of Islam without the need for coercion. This is because respect for and obedience to the laws of Islam is a matter of doctrinal and creedal obligation upon Muslims, which was the reason behind the success of the Khilafah. Thus, when Allah (swt) ordains upon Muslims to obey their rightful ruler, there is no option but to observe this command. This principle is well established in Islam from numerous ayat and ahadith.
b) The Khalifah
b) The Khalifah
The head of the governing system in Islam is the Khalifah. The first Khalifah of Islam, Abu Bakr (ra), in his inaugural address said, "O People, I have been appointed over you, though I am not the best among you. If I do well, then help me. And if I act wrongly, then correct me... If I disobey Allah and His Messenger, then I have no right to your obedience".
The second Khalifah of Islam, Umar bin al-Khattab (ra) enunciated the attributes required of a Khalifah,"By Allah, O Ibn 'Abbas, only the one who is strong without being violent, who is gentle without being weak, who is economical without being miserly, and who is generous without being wasteful is worthy of this affair".
The Khalifah fulfils, amongst the myriad of other obligations, the following as part of his responsibilities. The Khalifah must:
- Guard and protect Islam and its way of life and possess the appropriate defence capabilities to defend the Islamic State territories.
- Establish justice when disputes arise between litigants so that the strong do not oppress the weak.
- Implement the Islamic (Hadd) punishment (i.e. criminal laws) so that the prohibitions of Islam are not violated.
- Manage the funds of the treasury (Bait-ul-Mal), invest in public projects he considers necessary without being wasteful and pay the public sector employees' salaries from the treasury.
- Assume personal responsibility over the affairs of the people and execute the policies of the Ummah without overreliance on delegation of authority.
c) The judges
The Khilafah also has a strong judiciary which implements the laws of Islam, dispenses justice and keeps the leadership accountable. Everybody under the shari'ah is equal before the law and judgment is pronounced without fear or favour. Principally, there are three types of judges in Islam:
- The Qadi who settles disputes between people in private matters and implements the penal codes,
- The Muhtasib who is responsible for dealing with community-wide issues that affect the public and wider society, e.g. unscrupulous traders who harm the wider public, and
- The Mazaalim who is responsible for investigating and settling the disputes between the rulers and the ruled. Essentially, this judge keeps the leadership accountable and in check.
When the Prophet (saw) was the head of the Islamic State in Medina, he was petitioned to intercede for a noble lady who had committed theft, but the Prophet (saw) said, "The nations before [us] were destroyed because if a noble person committed theft, they used to leave him, but if a weak person amongst them committed theft, they used to inflict the legal punishment on him. By Allah, if Fatima, the daughter of Muhammad, committed theft, Muhammad would cut off her hand!" [Bukhari and Muslim]
This hadith illustrates that even if the Prophet's (saw) daughter had committed a crime, despite his position as the head of the Islamic State, he would have implemented the same criminal punishment upon his daughter without favour. Such attitude is inimical to that of the rulers who litter the Muslim world today who, with their families and entourage, enjoy unbridled favour and operate above the law. This is a direct result of the absence of the Khilafah in the Muslim world.
A great example of how the Islamic judiciary system functions was when the second Khalifah of Islam, Umar bin al-Khattab (ra), outlined the attributes a judge required in an Islamic court. He said, "The task of the judiciary is an undisputed obligation and a sunnah to be followed. Seek to comprehend when people have recourse to you, for it is no use to speak of a right if it is not put into effect. See that your face, your justice and your sitting are the same between people, such that the lord does not hope for your partiality, nor the weak despair of your justice…" [Al-Mawardi]
May Allah (swt) help us do our part to please Him and establish the Khilafah in the Muslim lands as a beacon of justice for the world and to liberate people from the misery of man-made rules and systems. Ameen.
“Allah has promised those who have believed among you and done righteous deeds that He will surely grant them succession [to authority] upon the earth just as He granted it to those before them and that He will surely establish for them [therein] their religion which He has preferred for them and that He will surely substitute for them, after their fear, security, [for] they worship Me, not associating anything with Me...”