Rules and the law

This post follows a discussion I had with Bhargavi (http://whatandwhatever.blogspot.com)

The current institutional law runs on 4 basic principles, Liberty, Equality, Justice and Order. Of these the first two words are largely a new principle for law, although their role in making laws is a more recent (since the 19th century) phenomenon. Before I go further, let me define these terms, as I see them, so that we are on common ground, and don't view some other meanings of these words.

Liberty - A political philosophy and identifies the condition in which an individual the ability of free individual assertion and has immunity from the arbitrary exercise of authority.

Equality before the law - A principle under which each individual is subject to the same laws, with no individual or group having special legal privileges.

When we come to justice, it gets a little more complicated, since there has been a long history of philosophy in justice with several more interpretations and dependencies. The broadest definition I found was as in the previous cases in Wikipedia (I love wikipedia)

Justice - The concept of moral rightness based on ethics, rationality, law, natural law, fairness, religion and/or equity.

Now being so broad and depending on several aspects (like moral righteousness and fairness which has probably the largest numbr of interpretations possible) and something which includes law itself and not to mention religion, we can already see that the definition of justice needs a consensus among the people who are trying to define it for a particular context. (It remains to be seen whether we may evolve to such a stage of globalisation that actually everyone agrees on the definition of justice)

For the sake of the current arguement, I cannot include law within the definition of justice, because as you may have guessed, I am going to talk about how law comes into picture and how laws are made. So I can't possibly look at justice from the point of view of an existing law. Religion, I exclude because some aspects of religion comes under law and others come under morality. The spiritual and metaphysical aspects of religion have nothing to do with this discussion. Equity... well I'll include it partly under fairness and partly under equality.

However, I cannot do away with such subjective aspects like morality, righteousness and fairness. So I redefine justice for the current arguement

Justice - The concept of rightness based on morality, ethics, rationality, natural law and fairness.

Order, even though not necessarily a guiding principle for framing institutional laws, is an irrepressible by-product of it. Being so, it comes close to being a guiding principle.

Order - The state of being well arranged.

Now institutional law, needs to find a way to implement all these aspects and not just one of them.

Law - The system of rules and regulations governing a society, which allows every individual in the society the liberty to express individual assertion, treats every individual with equality in the eyes of the law, provides every individual in the society with justice with respect to natural laws, ethics and fairness with a moral righteousness and rationality and thus brings about order in the society.

Now that the terminology is set straight, let us look at a possibility of how laws and subsequently order, must have come into place. In the most nascent state of being humans, in a free society, we have complete liberty. If a person is strong, he survives. That is probably in accordance to natural law and liberty. It is even equal because the natural law treats everyone equally...... Does it? Even in nature not all individuals are born equal and get equal opportunities. Some are born stronger and some weaker. That is not fair. And then everyone does not get an equal share of the resources. So it does not conform to our notion of justice. Besides, there is no order because you have to keep fighting in order to get the resources. So we put in some rules that the weak guys should also have a share of the resources, thus breaking natural law, but creating a new law. Another rule is necessary against fighting. But that does not bring order, because there will be people who do not conform to the law, breaking its order. If that person happens to be strong too, then the whole order breaks lose. So we need modify the law to enforce the order of the law, i.e. give certain individuals the liberty to violence and take away their liberty of those who break the law. But this is against the principle of equality because then some people have greater liberty than the others, namely those who implement the law. Soon these guys not only take the liberty of those who break the law, but also take away a larger part of the resources, because they are more "important". Then there are others who contribute to getting the resources in a larger way, so they cry foul. Because then it is not fair nor ethical that they do all the hard work while others who may not be doing the work. So you introduce a new law that those who break the law will be punished and that those who contribute more have more priviledges. Then people who are punished do not have liberty. So we put in a new rule that ...... well you see the point, we go on modifying the law until the society are satisfied. But will the society ever get satisfied? Would a society be able to find an optimum?

Although the different corner stones of institutional law are seemingly supportive of each other, under extreme circumstances they are often in opposite camps. The institution and the society together should decide which of the corner stones to give preference to in such situtations. Capitalism gives preference to Liberty, while socialism gives preference to Equality, a mob rule gives preference to Justice while probably, while a Dictatorship gives preference to order? Obviously starting with the same principles, different groups of people may be at a unique combination of Justice, Liberty, Equality and Order.

Now we come to the discussion about the Shariah law. In many ways Shariah is considered a primitive law by the western "intellectuals." It seems that there is scant regard for liberty. The justice system is considered savage. There is no equality and somehow wherever the Shariah law is the final law, there seems to be chaos. Western intellectuals feel that Shariah is not based on these guiding principles which govern modern institutional law.

Here is where I beg to differ. Shariah law was written with exactly the same principles in mind. All muslim men are equal. Muslim women have a different category with different rights and different previledges. Isn't it is like the modern institutional law which has its perview over only its citizens who are humans? It was just that the perview of the Shariah law was different from what optimum parameters we consider now. Order is something evident in the Shariah law. Justice too. Liberty is the question. But as long as a Muslim follows the other rules, he is at liberty to do what he wants to do, marry a person of his choice, wear clothes of his choice, eat what he likes etc. Pretty much like the modern institutional law. Just what a person needs to do in order to not break the law are different. In both modern institutional law and Shariah, one does not have the liberty to break the law.

So what is the difference? The difference is the possibility of change. Modern institutional law has the inbuilt system to bring about changes in the law to suit the society. That is not the case with Shariah. But it does not mean that Shariah does not follow the principles of institutional law.