REASON FOR DEVIATION
Probably for us, the Muslims, who have been brought up in the environment of Islamic culture, it may be rather. Astonishing that a group of eminent law experts deny the reality of essence for right and justice and opine that they are subject to people’s views and taste. This tendency is in vague in contemporary legal circles of the world and has registered considerable numbers of supporters.
It may however be noted that, like other deviated ideas in different branches of philosophy and learning, this view did not come to surface extemporaneously nor did it spread or expand merely by chance. There are two reasons for this. Firstly, some invisible hands may have propounded and propagated certain psychological, sociological as well as legal and economic theories with a view to achieve their political and colonial motives. Secondly, Certain doubts might have been raised for which convincing replies could not be fond due to weak philosophical foundations. As these doubts and suspicions piled up, they caused a tendency for theories, doctrines and schools which were of a deviated nature. Let it not be forgotten that most f the deviated thoughts came in vogue only when philosophy and meta-physics became weak and the place of deep thinking rationalism was taken by superficial sentimentalism. However, what popularized this deviated tendency in lego-moral philosophy is the presence of a number of doubts and suspicions mooted by emporiums and positivism etc. and found appropriate social grounds for their acceptance.
A detailed examination of such doubts and suspicions and a description of statements and all pervasive disputes in regard to them cannot be discussed in this short paper. Therefore, I would only deal briefly with the most important doubts and provide replies to them. Thereafter we shall explain the acceptable views in regard to the origin of rights.
INVESTIGATION OF DOUBTS
(1) One of the doubts is as follow: There have been and still exist different system of laws. Each of these has been more or less effective in the realization of the objective which is the maintenance of law and order in the society and relative security of peoples demand. Every society prefers its own system of laws. If people’s views and understanding undergo a change, the laws ruling the society are also altered. This has been witnessed in different countries of the world. These changes have also taken place even in legal systems which are divine and based on religion. This change takes place by nullification. If laws had a stable rational base such changes and alterations could not be justified.
In reply it must be said that:
Firstly: The legal system should not be considered as a totally independent system. Nor should its objective be considered as the maintenance of order and relative security of peoples demand. On the contrary, the legal system should be recognized as part of a comprehensive and value-oriented system; its object being the creation of a means for the realization of ultimate aim through a complete value oriented system.
In other words, social relations are only one of the many aspects of human life. The provision and regularization of these relations are a means to provide utmost possible perfection and eternal bliss to the largest possible number of people belonging to the society. Therefore, privilege laws should be enacted in such a manner that they are commensurate with the general objective of the value oriented moral system or at least it is not in contradiction with it. This is a fact which has been neglected in man-made legal systems resulting in separation of laws from religion and ethics.
Secondly: The claim that various legal systems are similar as far as the realization of approximate legal objectives is concerned is unrealistic and exaggerated. As mentioned earlier many a times the law makers themselves have realized their mistakes and worked to set them right. It is because the alteration of laws is not only due to change in views and peoples understanding.
Thirdly: Rational and realistic base for laws does not mean that all legal norms have stable and ever-lasting infrastructure. May be the change in certain realities and external conditions may result in alteration in some judicial laws. The nullification of divine laws in certain cases is one such instance. However, the question of the existence of a rational base for laws should not be mixed up with its permanency.
(2)The other doubt is that a legal system comes to realization when the people of a society or at least some active and effective groups and sections of the society recognize the system. Till such recognition is achieved, it remains an idea in peoples mind or a few lines jotted on a paper. Therefore, the basis of laws is public opinion and their acceptance by people; even if these are imposed on them by an individual or group of persons in the beginning. However, the wishes of people and the views of individual and groups cannot be neglected and the laws are based on reality of essence independent of people’s views and understanding.
In reply it may be said that there is no doubt that the working of a legal system is based on its acceptance in the society. If the people as a whole, or their majority or their active and effective groups are opposed to a legal system and resist it strongly, the system can never be put into effect. However, the question is whether a legal system can be called just or oppressive without taking into consideration its acceptance or non-acceptance by the people? Can it be said that a people have accepted a just system and another people have submitted to an oppressive one? Can it be said that system recognized by the people shall be just and that justice and tyranny are nothing but their acceptance or rejection by the people? Those who view right and justice as independent of people’s opinion and acceptance believe that a given legal system can be just even if people do not accept it. And naturally another given system, contrary to the first, shall be oppressive irrespective of its acceptance or otherwise by the people. The above statement cannot contradict and nullify such a view.
(3) The other doubt is that legal laws are dictatorial and their essence is command and prohibition even if these are expressed in informative terms. This is evident from description of rights bearing the essence of privileges or from description of enacted laws such as terms and conditions. It is obvious that dictated version could neither be verified nor denied. In such cases one cannot give consideration to facts. We have only to consider the wish of dictator based on negligence and permissiveness. In any case such commands have no other facts behind them except the wishes of the dictator.
In reply is to be said that we don not deny the dictatorial nature of legal terminology nor do we deny the dictatorial nature of informative compositions and also accept Th. possibility of presentation of dictatorial compositions in the form of informative text. However, the question is that if such wordy and literary debates are set aside, one can say without any doubt that a particular law is in conformity with peoples interest and if enforced their real interests will be served. Similarly, conversely it can also be said that a particular law is against people’s interest. Our purpose in saying that laws are in conformity with or against people’s rights in nothing but what has been said above. If possibilities of such a comparison were denied it would only mean to dispute and refute the self-evident.
It becomes clear from the above that the existence of description by using dictatorial terminology and words of command and injunction relate only to a particular style of description which is selected to add to the stress laid on such commands. It also has the aspect of psychology and does not indicate any sign of dictatorship in its nature.
(4) The other doubt is contractual substances and legal subjects consist of matters like ownership and companionship etc., which have no reality into consideration for legal methods which include such substances. These are termed as correct if they are in conformity with provision and called incorrect, if not.
In reply it may be said that the above-mentioned matters are, although subject to credibility and contract and that there is no specific factuality in regard to them but it cannot be argued that these have been supposed and stated in an exaggerated manner. On the contrary, these are like mathematical and algebraically formulae which relate to the effects, fractions and sub-fractions of different factors and are taken into consideration as signs and symbols for particular behaviors and their effects; and that those behaviors and effects so formed on them bear a mark of identicalness and factuality. For instance, the term companionship is a symbol to indicate the state of the total behavior of two spouses in their family life which is identified by certain limitations and restrictions.
Therefore, though legal terms are not by themselves indicative of any ocular realities yet they are not entirely alien to such factuality's. We may, therefore, describe the relationship of these matters with facts sating that the state of the actual relationship of mankind are the base and the infrastructure of such matters. In other words it can be said that legal and value matters are like two-faced coins, one side of which is indicative of their value and the other indicative of their factuality.
However, the motive leading to the acceptance of such matters or to consider them as borrowed from substantial and philosophical context is to facilitate their understanding like the motive in all other rational credibility's. For once it can also be like a motive which leads to the usage of alphabets and brief signs in mathematical formulae. Therefore, we should not be tempted by the outward credence of legal methods; nor should we neglect the facts hidden behind them. While facts of physics and chemistry are related in the language of mathematics and through algebraically signs, these cannot be considered as devoid of correctness only because of these signs being contractual.
It may be recalled that in case of companionship and other credibility's accruing from contracts and agreements, acceptance of both the sides and three decision to observe particular types of behavior as well as the expression of this acceptance and decision form parts of a specific social expedience formula. Though all these are factual and non-contractual meters, the use of a particular word or the writing of a specified sentence or the performance of a particular action during the implementation of the contract may be forged and contractual matter, but the credence of this condition, in its own turn, is subject to real expedience and substance.
It is therefore, concluded that the creditability of legal substances cannot be considered as a reason for the absence of virtues and vices in the substance. Nor can it be said that there is no connection between the legal laws and the virtue and vices of the substance.
(5) The other doubt is that legal methods, while conferring a right of someone emphatically or implicitly, confirm a duty for the opposite side. Therefore, all legal laws should be considered as containing the essence of must or obligation and the synonyms thereof. On the hand we know that such matters, for instance value essence, is different from real essence because real essence speaks of external affairs, and have descriptive aspect as against the matters of value essence which have instructive and obligatory aspect.
In view of these two prefaces, it becomes clear that legal laws cannot be considered as bearing realities and they cannot be derived from descriptive affairs. For instance, if the aim that man is born free and has the potential to select and adopt is taken into consideration, we cannot conclude that man must live free and the right of freedom for every man is intact. This is because one of the conditions for correct reasoning and deduction is that the result should not contain an essence in excess of the essences which form the axioms. Whereas descriptive passages o not contain terms like must but the instructive context for instance legal norms do consist such an essence.
It is, therefore, concluded that legal passages do not contain ocular realities, neither these are dried from descriptive happenings nor do they contain realities. Hence, legal laws cannot be considered as authenticated by ocular realities.
In order to clarify the reply to this doubt, two points should be kept in mind:
Firstly, it is not the external things which are meant to be the essence of realities on which depend legal laws. On the other hand it means the qualities which wisdom differentiates in things and persons and the relationship between them. This includes the relationship of passion and impression between the voluntary deeds of a man and the results accruing from them-whether material, worldly and social or spiritual, moral and otherworldly. Such a relationship is reality of essence; though it may not be related to external things. In other words the logical and metaphysical facts described with special philosophical essence are realities of essence. Therefore, the proposition that it is necessary to observe rules and limitations to maintain order in the society has of essence because the observance of limitations and rules is the cause for the maintenance of order and the existence of cause is necessary for the fulfillment of the effect-this necessity is iterated as analogical necessity in philosophical terms and considered as a reality of essence. It is because social order cannot be achieved in the ocular external world without the preservation and observance of laws. This proposition enjoys as much of reality of essence as mathematical and natural propositions. For instance the necessity of water for the growth of trees or the need to raise to the power of two the side of the square to find out its area.
The other point is that logical propositions contain unpronounced parts in addition to pronounced portions. This indicates the relative condition and is known as the essence of proposition in logical terminology. The unpronounced essence may be called as its aspect. It can even be treated as and essential element of the proposition. For instance it may be said that existence of living beings is feasible in celestial bodies. In fact the essence of feasible described the condition of relativity between the living beings and existence in celestial spheres and now it has taken an independent essence and become the predicate of the proposition.
Taking into consideration these two points, it becomes clear that legal propositions are in fact descriptive of the relationship of the causality between the various types of mans voluntary actions and the realization of the objectives of rights. Their soundness depends on the discovery of the complete formula of causation and the exact identification of its components, conditions and restrictions. But the discovery of such a complete formula is very difficult in consideration of multiplicity of factors and their variations and different types of restrictions, interests, mischiefs and shortcomings in all instances. This also results in creating many different points of views. If, however, one takes into consideration the necessity to contain the legal system within the whole value-oriented system also paying attention to moral objective, the difficulties inherent therein shall become obvious. Finally, one comes to the conclusion that human wisdom is so limited and his experiences so imperfect that these cannot present a perfect legal system which can work to achieve eternal bliss and complete perfection. That is why the need for revelation and Divine law becomes obvious.
And now the problem regarding the deduction of the word must from the word to be will be solved in view of the second point. The propositions known as descriptive propositions consisting of the relation of causation shall guarantee analogical necessity which form the essence of the proposition and this is the essence of the guaranteed necessity in introducing analogy and appears in the form of must and obligation Neglect of these logical subtleties has made some others feel that the deduction of value oriented and legal laws from descriptive propositions is not possible. However, it must be considered that the deduction of the need of effect depends on the realization of all the components of the total cause contrary to the existence of each of the cause factors which are essential for the realization of the effect.
If in the preliminaries of analogy only one part of the total cause is included then the need for effect cannot be deduced from them. The sophistication obtained in the deduction of moral and legal propositions from scientific ones is due to the placement of a part of the cause instead of the total cause. The examination of these matters is not within the domain of this short paper.