Types of Law in Islam

The distinction between natural law (moral law or the law of one’s own conscience) and the law of the state (what is also call ed Positive Law) has existed for as long as man has been organising states and polities. The ancient play Antigone, for example, illustrates the distinction nicely: written some 400 years BC, Sophocle’s play tells the story of Antigone whose two brothers have killed each other whilst fighting over the rulership of Thebes. The ruler, Creon, decrees that Antigone must not bury one of her brothers, Polynices, because he is a traitor. Forced to choose between the law of the state and moral law, Antigone obeys her conscience and so attends to her brother’s corpse. She is subsequently imprisoned by the state and faces death for her decision.

Of course, the substance of what natural law dictates has been debated. For example, Thomas Hobbes in his Leviathan argued that natural law was a law formulated through reason and that it centered only on those matters relating to the preservation of life. Others, such as Thomas Acquinas, extended natural law to cover self-preservation, procreation, education, social cohesion and the worship of God. Others have debated the tension that can exist between natural law (or the demands of natural justice) and the law (and demands) of the state.

It is also a debate that has, at various times, appeared in Islamic history between scholars that argued that the mind was incapable of making such a determination, and others that have argued that the mind can — through logic and intellect — determine the right course of action or the right ruling on any situation. In other words, that all law is natural (that it is formulated by one’s own reasoning) or that all law is legislative. The correct position, as with most things in matters of religion, lies between these two extremes.

I mention all this because Hood Bradford has a very interesting discussion of this distinction between natural or moral law and the law of the state as it applies to shariah deterrents.

As an aside, one passage is particularly important to note. In discussing the application of legislative deterrents, Hood writes:

One example of this would be the various warnings of punishment in the afterlife that are promised for someone that commits such and such sin. Another example can be seen in the stoning or lashing of a fornicator. While the punishment is harsh and seen as expiation for the sin committed in this life, the conditions for the said punishment to be established against someone accused are so stringent that, to my knowledge, there has never been a person in the history of Islam who has been punished based upon the testimony of four witnesses. With this said punishment would never then be meted out to a fornicator unless he or she confessed; leaving the guilty in the throws of faith: either he admits and is expiated in this life, or awaits the decision of Allah in the next.

This is important to note because one of the most frequent criticisms that Muslims face today relates to the alleged harshness and “ease of conviction” found in Islamic law.