Secular, Religious and Quranic Codes of Justice
Activism—Justly compensating for weakness of the weak
Rashid Samnakay, New Age Islam
17 Jan 2013
This is NOT a treatise on the complex issueof modern justice systems;commonly understood in English as the legal system pertaining to the application of the ‘law of the Land’; but a layman’s attempt to highlight what is practiced,bycommunitiesof Muslims under the aegis of their various religions. In doing so theirpractices are seen to be different to the Quranic-codes;to which sourcethey profess absolute obedience.
In the modern Western legal system, a lay person understands that when one is netted in that system, the Courts will apply the Law of the Land exactly, that is,- “so much and no more”. Hence often the symbolic representation of justice is the lady holding in one handthe weighing scales, with two pansrepresenting the balance between the accused and the accuser, and in the otherhand a sword for the‘punishment’ to the accused if found guilty.However the accuser is not ‘compensated’ as a victim.
Very often the term “justice is blind” is applied to signify impartiality in the application of the Law that is, dishing out punishment.But in this system the guiltycan be set free on ‘legal technicality’.The party in the other pan of the justice scales is then left unattended!
It is understood that in dealing with, in general, the guilty of misdeed committed against the individuals or the State- the other parties- gets only the satisfaction that the guilty is ‘punished’ and therefore justice is served.
The aspect of compensation hardly ever appears in the process of ‘Judgement’, unless the victim(s) makes an application for the compensation. This application then is treated as completely separate case.
Lately however in the West, it has been observed that ‘brave court would go beyond its jurisdiction to do the ‘right thing’ by the victim(s) and apply justice in a way that is morally just,to compensate the weak. Such Courts are often accused ofengaging in ‘activism’ or ‘social engineering’.
However, uncommon in the West, but common elsewhere, the Ecclesiastic application of justice occurs when the Church assumes the authority to apply justice unilaterally, based on its apocryphal and traditional practices. There is no room here to exerciseones conscience let aloneindulge in activism to be Just! The clergies’ command is more godly and perhaps deadlier than commands of God.
In the Quranic-Code,this ‘activism’ is mandatory, in compensating the victim, as a primary issue of Justice, along with fair and proportionate punishment of the guilty.This function is given as the duty to the State and the believer is ordained to obey it.4-59 ,…and those whom the system has appointed as authority over you.
The referenceverses on this subject are numerous to list. However some salient aspects are touched upon.
The Arabic word ‘insaaf’generally taken as‘justice’, does not appear in Quran.However the derivative of the root NS’F appears as meaning-‘the equal half’.Justice-insaaf, as a compound word that denotes a total package has no equivalent in Quran. This writer will be grateful to be advised of otherwise.
The total package of Justice in Quran is made up of various important aspects.Broadly speaking, which are:-
· Complete knowledge and recognition of the matter in hand based on thorough investigation of the claims and complaints.
· Vetting of witnesses as to their probityand character.
· Equal treatment of both parties in the dispute. That is, no presumptions ofstatus are allowed to influence the outcome.
· Non-interferenceof third parties in the process and nobribes, corruption and payment to be accepted.
· No kinship favouritism even for one’s own kith and kin to be tolerated.
· “None is above the law”. There is no immunitybased on power or position. No parliamentary immunity exists in this system.
· Kindness bordering on forgiveness if the guilty party shows remorse and promises to reform, in cases of non-criminaltype actions; that is inadvertent failings. For example non-premeditated and accidental death.
· Balance, fairness to be maintained in all cases, even when dealing with enemies (A’dal).
· Compassion, generosity and equity according to needs to be applied in the matter of compensation (Ihsan) or judgement in matters of compensation and apportioning assets.
These are plainly and simply universal values for all humanity, with one addition and that is, a certain “personal” moral code embedded in the whole package of justice.
Only a few of the significant Arabic terms that appear in this context are given here:-
1. a’dli— The concept of weighing-scales, balance, equivalence, and proportion in fairness ( 2-48 &123) …nor shall compensation be accepted (from the accused)… (also 5-95, 6-115 etc)
2. bilma’roof— Total recognition, fairness and goodness to both the parties involved (3-104,110); Let there arise out of you a community of people (a State) inviting to all that is good, ordering what is right and forbidding what is wrong: they are the ones to attain felicity. (also 2-241, 2-236, 2-263 etc)
3. bilihsaan—excellent beautiful, with kindness, generosity, fairness in compensation. (, 4-69)… the sincere lovers of truth, the witnesses who testify and the righteous who do good: what a fellowship they are! (28-77)…and do good to others as God has been to you…
4. bilqisti—Equitable, and fair dealing,(5-9) …stand out firmly for God, as witness to fair dealing, and let not the hatred of others to make you swerve to wrong doing and depart from fairness. Be fair for that is near to piety…( 4-127) …concerning the children who are weak and oppressed: that you stand firm to equity and justice …and many more. Thus equity in compensating for the weakness of one in comparison to the other is stressed.
In spite of the above, in matters of gender issues, the Muslimsare;and to some extent justifiablychastised for their apparent unjust practices as imposed by theedicts of their religions,with regards to the fair sex. These are the people who paradoxically claim to adhere to a faith system that has accorded dignity, utmost respect and security to women.
The most common example is what appears to be unfair, unjust and unequal application in ‘Sharia’ of share bequeathed by the parents to their male and female off springs,as in verse 4-176. That is -two to one-in favour of the son vis a vis the daughter. Obviously a picture of gender discrimination emerges for present day conditions.
With the exception of handful of scholars, it is strange that majority–the church leaders, a’lim-u-deen--in position to explain and projectcorrect interpretation,have failed miserably to explain theapparent anomalies!
The Quranic command addresses the general societal and prevailing conditions at any time,where it is imperative that the daughter must be married off as soon as possible—(even at the age of seven as it is given in their Apocrypha)!
In many societies even today it is a matter of “Honourand economic necessity”, to get daughters married off sooner than later.
However, in Quran:
1. -On marriage,the daughter is eligibleto inherit her share from her husband’s as well as her parent’s assets.
2. -Also, herown wealth and earnings are entirely hers and she is notobliged to share it with the family unless willingly and out of her kindness.
3. -She gets a ‘Gift’ from her husband, up front, as her exclusive possessionfor security. There is No room in Quran for promises of ‘virtual’ gift.
This multiple dipping is not available to the son(s).
Most importantly, the ingrained tradition and culture in most societies is that the son(s) are expected to carry the larger burden of the extended family.Hence the Quranic wisdom in allocating twice the share of assets to the son(s)to assist in these conditions compared to the daughter(s).
Above all,in this context, the mostimportant ordinance that of updating one’s Will regularly to suit the changing conditions,is never even mentioned from the pulpit;-
2-180,It is prescribed, when death approaches, if they leave any assets that they make a bequestto parents and next of kin, according to fairness, for this is due from those conscious of God’s commands.
In fact itis grossly interfered with by the Clergy.The restrictionsimposed to bequeathonly one-third of one’s assetis contrary to Quran. 4-11-…the distribution in all cases is AFTER the payment of legacies and debts… &12 so that no loss is caused to anyone.
There isNO restriction or limit on bequeathal. There IS however the requirement to be fair and equitable in all cases on individual’s moral sense of fairness.
Thus there is no hindrance of any kind to compensate one’s daughter,or even son(s) or anybody else for that matter,if they deserve to be compensated with any extra amount of assistance; either during the parent’s life time or after death through the Will that must bewitnessed by two honest people, male or female in this case!
The division of assets by the State is ‘after’ the Will – the legal document-- has been executed fairly and justly. The Church has no reason to pokeits ‘business’ nose in such legal matters.
The changing conditions today call for rethink on these religiousand ungodly traditions and there is no reason not to adopt ‘just and equitable’ measures to suit the situation within the universal guidelines for humanity asprovided in the scripture.
Today the situation although not completely changed, is changing rapidly even in backward communities.. The Book makes it clear in various statements, eg-2-185, God wishes every facility for you; He does not wish to put you through difficulties.
This issue is at the heart of gender discrimination and Justice as seen in practice, not only in Muslim nation but the world over where Male has in general ‘powerand advantage’over its counterpart the so called weaker and disadvantaged female.
Even in the West the ‘glass ceiling’ and ‘gender biases, is aperennial issue! However, to take that as a licence, for continued injustice and inequity and dwell in the past, is a lame excuse for the churches and to stand back and operate from the fringes. They have a responsibility and a duty to redress these practical issuesand bring their followers in line with changing times and so lead them to progresswith equality.
The Poet therefore laments the failure of this classand says:-
Kar saktay thhey jo apney zamaanay kee imaamat,
Woh kuhnaa dimaag apney zamaaney kay hain’ peru (Iqbal)!
Those who could have been upfront-leadersof their age
They turned outrusty-brained followers of ancienttimes!
The revolutionary ordinance of making up for the “weakness of the weak” is yet to be implemented by the men’s world:-
The Book ordains;-16-90.Al-Mighty commands balance (a’dli), the doing of good and equity (ihsaan), to kith and kinand He forbids allshameful deeds, denial and rebellion: He instructs you thus that you may receive guidance.
A regular contributor to New Age Islam, Rashid Samnakay is an Indian-origin Engineer (Retd.) based in Australia for over forty years.
URL: https://newageislam.com/ijtihad-rethinking-islam/secular,-religious-quranic-codes-justice/d/10052