Modern techniques of Qur’anic legislation.

The Qur’an is characterized with a gradual revelation. The verses of the Qur’an were generally
revealed to solve the problems which confronted Muslim Ummah. The Qur’anic legislation
adopted rational and natural arguments concerning an issue and then reinforced them by
historical and circumstantial examples. The aim of Qur’anic legislation was to reform the corrupt
believe, standard of morality and the whole social order and custom prevailing in pre-Islamic
Arabia. The Qur’anic legislation is comprised of a variety of techniques and characteristics
which have been enjoined by Ummah in every period of time. These characteristics hold all
those qualities which any of modern legislative body possesses.

1. Legislation based on the general principles.

The laws created by Qur’an are based on wide and general principles. They do not
contain so many details as to create difficulty for believers. These general principles
are suitable for all times and in all circumstances. For example a general principle
concerning moral values is: “O! Believe, fulfil your promises.”To facilitate people in their
business transaction, God said: “O! Believe do not eat up your properties among your selves
unfairly, except you have trade by mutual understanding.”

Thus, for civil matters or contracts, the major concerned is given on the mutual consent of the
parties, and this golden rule envisaged in the text of Qur’an which was never existed in any other
law of the nation at that time.

And this golden rule was considered a complete unprecedented in the history of the old
statues.Basically the Qur’an and Sunnah are inclined towards establishing general principles
which later provided a direction to the compilation of Islamic jurisprudence.
On the other hand Jurisprudence as formal science was developed in England by Hobbes,
Bentham and Austin during nineteenth century. Germy Bentham founded the
English AnalyticalSchool. Austin (1750-8159) defines law as the command of supreme Law-
making power in the state which does not need divine sanction.

2. Legislation based on the Constitutional Law.

Constitutional law consisted of legal rules which define the powers and authorities of different
organs of the government of a country.
These are the manners through which a particular society constitutes and runs different organs of
the state in the light of its constitutional characteristics. The Islamic constitutional law comprises
of divine guidance. It is a composition of ideology, beliefs and basic principles for the structure
and function of an Islamic state. God declares: “For every one among you, We have prescribed a
law and code of conduct.”

The Islamic law of constitution is based on two foundational principles, the first is the complete
rule of law and the second is representative form of government. These foundations were laid
down by Qur’an fourteen hundred years ago when all around the divine rights of king and
dynastic rules prevailed.
In the field of criminal law, Islam established the rule of personal liability, and does not
recognize the rule of vicarious liability and states: “everyone is held in pledge for what he has
earned.”

3. Provisions to provide delegated legislation

By describing only general principles, God blessed his believers by giving them authority to
decide the detail of these guiding principles according to the needs of time and people. Islam left
a wide field for human enactment and gave them choice to legislate and to enact by this
delegated power of legislation. A wide area of human conduct has been declared permissible. It
is this reason that bulk of questions is discouraged by Islam. God said: “O! Believe, do not ask
about things which if made plain for you, will cause trouble for you.” Holy Prophet said: “The
Muslims who committed the gravest offence against Muslims are those who asked about things
which were not prohibited, but which became prohibited because of their questions.”

Contrary to this, the concept of delegated legislation in Western legal system was introduced in
eighteen century. It was first welcomed on the ground that the Parliament was overloaded and by
granting some of its powers to ministers and local governments, the Parliament was there by be
able to deal with the issue of importance while the detailed could be settled departmentally.

4 Legislation to reform the existing laws

The Qur’an itself pronounces that it aims to reform human condition and society. Islam never
tried to remove all existing laws of a society, rather than it aims to remove the evils of those laws
and to make them beneficial for all.

The system of trade and business was reformed by certain Qur’anic legislation. For example, The
Arab used to lend out money on interest on certain ratio and for a certain period and if that time
lapsed and the borrower could not pay back money then the ratio of interest had to increase. This
usury was known as Riba which led to unfair advantage
for the lender. The Qur’an prohibited it by saying: “ O you believe! Eat not riba . ...”

And God declared: “Because of their saying that trade is like riba, whereas Allah has permitted
trading and forbidden riba.”

5. Legislation to adopt customary laws

Islam did not profess to repeal entire customary laws of Arab and to replace it with a code of
new laws. The ground work of Islamic legal system, like that of other legal system is to be found
in the customs and usages of the people among whom it grew and developed. For the
development and protection of the family system, the Qur’an adopted customary laws relating to
marriage, divorce, parentage, and inheritance through amendments. For example, ten types of
marriage were customized at that time, but Islam sanctioned only one of them which is happened
when one party, male or female, offers to second party to marry with him/her, if the second party
accepts that offer then a contract of marriage is to be held and a certain amount or thing is
specified by the husband as dower of his wife. Fornication also declared forbidden by Qur’anic
legislation due to its exploitation of women and destruction of family bonds. It was revealed:
“Female adulterer and male adulterer punish each of them with hundred stripes.”
6. Legislation based on the public utility.
The fundamental principle of Qur’anic legislation is to remove pain from the people and to
ensure pleasure for them. This principle is based on the approval and disapproval of every action
of human being. Its criteria have been established by the Law-Giver himself. To ensure it God
said: “Allah does not burden a soul with more than it can bear.” And said: “Allah wishes to
lighten your burden, for man was created weak.”Seeking utility and removing harm are the basic
purposes at which the creation aims and the goodness of creation consists in realizing their goals.
This means the preservation of the objectives of Shari’ah which consists of five things:
preservation of religion, preservation of life, preservation of intellect, preservation of progeny
and preservation of property. What ensures the preservation of these five principles is called
utility and whatever fails to preserve them is called harm (mafsidah) and its removal is utility.

7. Legislation based on the doctrine of necessity

The Qur’an adopted the doctrine of necessity when other nations of the world were in dark
regarding the legality of this doctrine. In case of necessity, a prohibited thing becomes
permissible to the extent of removal of that necessity. For example, keeping fast of Ramadan is
an obligation for Muslims, God declares: “O! Who believe, fasting has made compulsory for you
as prescribed for those before you in order that you may be conscious of God.”

But in case of necessity it may be postponed until that necessity finished. It is declared:
“(Observing fast) for a fixed numbers of days, but if any of you is ill or on journey, then fulfill
counting in later days.” Similarly God permits to shorten prayer during journey. Moreover, God
declares: “Forbidden to you dead animals, blood, pork, animals slaughtered in the name of others
than Allah, animals killed by strangulation or a blow or a fall or by being gored...”

The consumption of these prohibited substances becomes permissible in case of grave

necessity for sake of life. God announces: “But if anyone is forced by hunger, with no inclination
to transgression, Allah is indeed for giving most Merciful.”

8. Direct answers to the questions

A number of Qur’anic verses are the direct answers to the questions raised by people of that era.
Many of these begin with the phrase like ‘they ask?’ Sometimes Muslim and non-Muslims of
the society had to ask different questions concerning the status or hukm of any matter. The Holy
prophet did not answer them until he found some revelation or indication from Allah Almighty.
Once, the people asked about fighting during the forbidden months. Allah Almighty revealed the
following verse: “They ask you about fighting in the forbidden months. Say, fighting in them is a
great offence, but blocking Allah’s path and denying Him is even graver in Allah’s sight.”
On another occasion the people asked about the hukm of taking wine and other things. To
answer them, God revealed: “They ask you about wine and gambling, Say! There is a great sin in
them as well as benefit for men, but the sin of them is greater than their benefits.”

9. Legislation in case of emergency

There are number of legislative provisions related to the factual reality of a case or incident when
happened. In pre-Arab society, different kinds of divorce were prevailed. One of them was Zihar,
if a husband had to pronounce that his wife was to him like his mother’s back. It would become
cause of separation between them. The Holy Prophet had accepted Zihar as valid form of divorce
and in one case asked a female companion to accept it. However Allah declared it invalid by
saying: “Allah has indeed heard the statement of the woman who disputed with you regarding
her husband and carried her complaint to Allah, Allah hears yours discussion. Surely, Allah
hears and sees all things. If any man amongst you declares their wives like their mothers, they
cannot be their mothers. None can be their mothers except those who gave birth to them. They
use bad words and falsehood

10. Legislation based on International Law.

International law means the law which governs the conduct of different states among themselves.
The international law of Islam is based on the text of Qur’an: “To each among you, We have
prescribed a law and a clear. He may test you in what. He has given you; so compete in good
deeds. The return of you all is to Allah.” The idea of “Two Nation Theory” is also created by
God Himself. It is stated in Qur’an: “Who has created you; so some of you are non-believers and
some of you are believers.”

This text presents a clear definition of a nation, and according to which the Muslims of the whole
world constituent one nation, while non-Muslims are another nation. The international relations
of the Muslims being one with other nations of the world can be set up only by declaring the
oneness of mankind on the basis of equality.

11. Legislation based on fundamental rights

The principle of fundamental right means the basic rights of human being necessary for his
survival in the world. It has been defined clearly by the Qur’an. It is stated: “mankind! Be dutiful
to your Lord, Who created you from a single person (Adam), and for him (Adam) created his
wife, and from them both He created many men and women; and fear Allah through. Whom you
demand (your mutual rights).” This text provides a basic and fundamental principle of equality
of International law. It indicates that international relations can be set up and peace can be
achieved and maintained only by becoming good to the other nations of the world, and removes
all types of inferior and as well as superior complexes of the nations by declaring them the
children of one parents. This rule provides a fundamental rule of equality of all human beings
irrespective of the race and religion, and colour etc. Another text declares: “And mankind was
not but one community, then they differed.”

12. Legislation to provide Objectives of Shari’ah. The Shari’ah has been placed for the
benefits of people. The identification of the interests of man has not been left to the reason and
desires of human beings, rather than all the purposes seek to establish and maintain life in this
world to serve the interest of the hereafter. God declares: “We have not created Jin and Ins
(human being) except that they should worship me.”

And God said: “Do you think that We had created you useless and you would never brought
back to me.” Thus the primary purpose of Shari’ah is to secure the interest of man that pertains to
the hereafter. These purposes are further sub divided in to two types; that are worldly purposes
and the purposes of the hereafter. For example, the preservation of life is dependent upon the
prohibition of unfair murder and on permission of retaliation in case of murder. The preservation
of progeny is dependent upon the permission of marriage and upon the prohibition of fornication.

13. Legislation to provide principle of abrogation

Qur’an has introduced the principle of abrogation. This principle based on the need of time and
people. God may prescribe a law suitable to the people at the time of its enactment, or it may
serve a particular limited period. However, if its purposes have been achieved or its suitability
may later disappear. In such circumstances the needs for the laws cease to exist and its validity
becomes uncertain.
For example, in pre-Islamic Arab culture, the property of deceased person would only inherit if a
bequest was made. thus in the early stage of Islam, God confirmed that law by saying: “It is
prescribed that when death approaches any of you, if he leaves property behind, he has to make
a bequest in favour of parents and next of kin, according to the custom, this is due from the
pious.” Later, this order was repealed by Allah almighty and a comprehensive and detailed
policy of the shares of heirs was introduced. Similarly the widow’s waiting period was one
complete year. It was the duty of husband to make a bequest for maintenance in favour of his
wife. God prescribed: “If any one of you die and leave widow behind, a bequest of a year’s
maintenance and residence should be made for his widows...” Then by another enactment the
waiting period was reduced to four months and ten days:” If any one of you die and leave widow
behind, they shall wait regarding themselves four months and ten days.”

14. Provisions to provide second source of legislation

The Qur’anic legislation provides a second source of legislative process that is Sunnah. The Holy
Prophet (peace be on him) was assigned the duty to convey the final message of God to human
being and to legislate laws according to circumstances and given situation of a case. The term
Sunnah means the saying and actions of Holy Prophet as well as His tacit approval and actions of
His companions which did not meet His disapproval are also considered part of Sunnah. God
declares:” He (Holy Prophet) does not speak from his desires. Verily, it is inspiration which has
been revealed.”

The Holy Prophet performed this function in different ways. Some time he had to just explain the
Qur’anic text by making a statement. At other time he would explain the text by his action before
people, for example God declares the oblation of prayer but without its details and did not
described the how prayer should be performed. It did not state the time and numbers of prayers.
So the Holy Prophet elaborated every ambiguity related to prayer and prayed among his
followers and said: “Pray as you have seen me pray.”