Legislation and Affirmative/ ‘eejabi’ Obligations in Islam

  

Affirmative/ positive/ ‘eejaabi’ obligations are those acts which people are directed to perform e.g. Namaz’ rooza’ zakat, hajj etc. are affirmative/positive obligations. This term affirmative/positive obligations is used as opposite to negative obligations which are acts  people are forbidden to undertake e.g. all bad deeds/evils including  all crimes are relating to  negative obligations.

Every obligation (positive or negative) has two phases- individual phase and collective phase. The difference between individual and collective deed is that individual deed is compensated individually whereas a collective deed is compensated collectively. The first stage of every collective obligation/phase is always individual obligation/phase but contribution of every individual is not required in collective deeds.    The rise and fall of nations is based on collective deeds of nations; it is not based on individual deeds (for details pls see http://secondriseofislam.blogspot.com/2016/02/individual-reformation-vs-collective.html#links ). That is why every nation is allowed by Allah to reform its collective deeds so that the nation may rise in the comity of nations. For the purpose, Muslims have been assigned collective obligations and such obligations may be got complied with through legislation. Because first phase of every collective deed/obligation is individual deed/obligation (though not all individuals’ deeds/obligations) so Muslims are allowed to reform individuals’ deeds/obligations as well through legislation. In other words, Islamic state may make legislation to enforce collective and individual obligations whether such obligations are positive/ eejabi or negative ones; whether such obligations are relating to crimes or relating to eejabi/positive or negative ones other than crimes.

Regarding crimes, Islam establishes social justice through ‘Qist’ under which social justice is established essentially through laws. Regarding obligations (positive or negative which are not crimes) social justice is established through ‘adl’ under which social justice is established through legal as well as non-legal means. ‘Qist’ involves crimes and penalty whereas ‘adl’ does not involve crimes and penalty (for details pls see  http://secondriseofislam.blogspot.com/2012/12/differentiation-between-amr-bil-maroof.html    http://secondriseofislam.blogspot.com/2012/12/concept-of-meezan-and-essentiality-of.html ).

It means ‘Qist’ is legal dispensation of justice in cases of crimes; whereas ‘adl’ is dispensation of justice through legal and non-legal means in cases of positive/ eejabi or negative obligations other than crimes.

It is quality of the Quran that Quran does not specifically mention punishment for each and every crime; Quran only describes principle through some examples that crimes are to be punished (through laws). Similarly, in cases of eejabi/positive or negative obligations other than crimes, Quran only describes principle through an example that eejabi/positive and negative obligations other than crimes may be enforced through laws; this example has been given as follows:

“And when the sacred months have passed, then kill the polytheists wherever you find them and capture them and besiege them and sit in wait for them at every place of ambush. But if they should repent, establish prayer, and give zakah, let them [go] on their way. Indeed, Allah is Forgiving and Merciful” (al-taubah-5).

This verse is stating that polytheists of Arabia are to be killed wherever they are found but if they repent (means they accept Islam), establish prayer, and give ‘zakah’, they should not be held liable to be killed. We know prayer and zakah both are eejabi/positive obligations. This verse is stating a law specifically about the polytheists of Arabia but this verse does describe the principle that state may make legislation for enforcement of positive/eejabi obligations (which are not Arabia's polytheists specific e.g. prayer and zakah) in certain situations. Though the element of penalty in this law is specific to polytheists of Arabia, it does not mean state cannot make legislation for enforcement of eejabi/positive obligations without element of penalty.  It is true Quran does not make it mandatory to make legislation for enforcement of eejabi/positive obligations or negative obligations other than crimes; if people are motivated enough to fulfill their eejabi/ positive or negative obligations other than crimes, it is not mandatory for state to go for legislation for that purpose. But if people start avoiding implementation of such obligations, taubah-5 does provide the state with option to enforce such obligations through legislation without element of penalty. In other words, legislation under process of establishment of ‘adl’ is not mandatory in all situations; ‘adl’ is to be established through legislation only when it is required to do so.

 Actually role of establishment of ‘adl’ is much more important than the role of ‘qist’ in building a reformed, just, pious and strong society. Qist is related to only some numbered human activities; but ‘adl’ is related to countless human activities. The scope of ‘adl’ includes all human activities like human thoughts, emotions, desires, customs, traditions, moral values, professional ethics, business ethics, legal system, economic system, political system, social system etc. If system of ‘adl’ is left unattended and people start ignoring their eejabi/positive and negative obligations other than crimes, society becomes bound to go for downfall, even if system of ‘qist’ is fully developed and enforced in the society.

In the early period of rise of Islam, people were motivated enough to fulfill their eejabi/positive and negative obligations other than crimes. There was no need to make legislation for the purpose. Only ‘Qist’ related legislation was in place. But with the passage of time, people start shunning more and more their eejabi/positive and negative obligations other than crimes. The result was downfall of Muslims’ society. That downfall might be stopped through making ‘adl’ related legislation but no heed was paid to it. ‘Qist’ related legislation (crimes related legislation) was there but could not stop Muslims’ downfall. Now that we have reached almost the abyss of downfall, we are still ignoring ‘adl’ related legislation. Because we are not fulfilling, on our  own, our eejabi/positive and negative obligations other than crimes, there is no chance of our rising again without adopting ‘adl’ related legislation.

Legislation regarding eejabi/positive obligations and negative obligations other than crimes may prove to be panacea of many social evils we are facing with. Legislation may be made to bind children to pay a certain portion of their income to their unemployed parents; an industrialist may be made bound to clean the environment where he has established his factory; husband may be made bound to pay a certain portion of his pay to his wife and children; the owner of factory establishing his factory availing special concessions given by the government (e.g. in special industrial estates)  may be made bound to give away a certain portion of income to the workers; the rich may be made bound not to display their riches unnecessary; the rich may be made bound to invest their wealth in productive sectors; the poor may be made bound not to sit idle and  get some kind of employment; the media may be made bound to promote decency and avoid indecency; the educational system may be bound to impart Islamic values and way of life; the economic system may be made bound to serve the poor and reduce disparity between the poor and the rich through economic policies; the political system may be made bound to promote and strengthen Islamic Ideology and Islamic institutions. In short, legislation regarding eejabi/positive obligations and negative obligations other than crimes is relevant and required for each field of social life. There is so much room for such legislation in a Muslim society.  It need not be reiterated that fulfillment of all these obligations would be ensured through administrative/judicial intervention  without awarding any penalty (physical or monetary(fine)). One way of enforcing positive/eejabi obligations (and this method may be applicable in many cases though not in all cases) may be that the defaulter may be prohibited from  undertaking the activity, if he fails in fulfilling the obligations attached with such activity. For instance, if an industrialist defaults, the operation of his industry may be stopped ( it should not be taken as monetary penalty; monetary penalty is effectuated by receiving certain amount from the defaulter); similarly if any governmental functionary defaults, he may be removed from his post; if media defaults, its license may be suspended.

We may conclude that adoption of legislation related to eejabi/positive and negative obligations other than crimes is a crying need of the time; of course crime related legislation is also required. Without ‘adl’ related legislation, qist related (crimes related ) legislation cannot put Muslim society back on the track of rising among the comity of nations.