The Justice System in Islam: More Than Just Law the Idea of Justice in the Qur’an
Mohamad Mostafa Nassar
Twitter:@NassarMohamadMR
Introduction
There is an urgent need to revitalize the concept of justice specifically as a virtue since the focus in the Islamic and Western worlds has been more significantly on the juridical and political aspects of justice. Since the European Enlightenment, the classical philosophical conception of justice has been replaced by individualistic conceptions of human nature, focusing on human rights. But for a society to operate with full justice we need righteous humans.
For peace and justice to prevail in society, we do not require only laws of justice, but also people of justice. That is to say, justice as a virtue of political institutions should be brought in relation to justice as a virtue of character. Justice is the only one of the four virtues that is inherently good.
Wisdom, temperance, and courage are good when they serve virtuous ends, but justice surpasses all of them because it is concerned with the quality of the soul and society. Justice is concerned with both an inward quality of the soul and an outward quality of virtue. We have to be just to ourselves and with everything else and everyone else around us.
Qur’anic justice must be seen in the context of the age of ignorance (jāhilīyah) in which it was first revealed. Ignorance implies the ‘reckless temper’ of pagan Arabs who were prone to violence.
In the name of manliness (murūʾah), they sought violent revenge for the smallest slights, inspiring blood feuds that sometimes went on for generations.1 The Qur’an made them aware that the essence of morality comes from moral responsibility, not tribal loyalty and preservation.
The Qur’an taught them that every person is responsible for his or her actions, and thereby transformed tribal loyalty into a personal morality: “No burdened soul shall bear the burden of another, and every person will be accountable on the Day of Judgment for himself” (Q. 13:89; 31:32).
A universal personhood governed by justice and kindness is more important than tribal custom and law. Prophet Muhammad peace be upon him responded to the challenges of his time, curbing the violence and cruelty of the pagan Arabs. The Qur’an devotes two hundred verses to admonishing those who are guilty of injustice and oppression.
The Qur’an provides the principles of justice, but scholars have differed as to how they should be implemented. I will discuss the example of one classical scholar, al-Rāghib al-Iṣfahānī (d. 1060), who integrated the philosophical knowledge available to him in his time into a Qur’anic framework.
This is an indication of how classical Muslim philosophers, such as al-Iṣfahānī, were open-minded representatives of Islam and were not averse to knowledge from foreign sources.
Al-Iṣfahānī’s theory of justice is not absolute, but only an attempt at ijtihād=intellectual attempts. We may not agree with it entirely, but we can learn from his method of integrating contemporary knowledge into the Islamic worldview.
The linguistic meaning of justice (‘adl) in the Qur’an
The most common term for the word “justice” in Arabic is ʿadl, and related terms include qisṭ, istiqāmah, wasaṭ, naṣīb (share), and mīzān. The opposite meaning is injustice (jawr), and related terms are ẓulm (wrongdoing), ṭughyān (tyranny), and inḥirāf (deviation). These terms are used in the broadest sense to connote ethical and religious meanings.
The Arabic word ʿadl (justice) comes from the root verb ‘a-d-l, which means to be equal to, just, straight, and temperate. These significations are contained in the following verses: “I am commanded to decide justly between you” (Q. 42:15):
“And when you judge between people, judge with justice” (bi-al-ʿadli) (Q. 4:58); “One who commands to justice” (bi-al-ʿadli) (Q. 16:76); “Call two upright witnesses (ʿadlin) from among you” (Q. 65:2).
A word that is synonymous with ‘adl is qisṭ: “My Lord commands to justice” (bi-al-qisṭ) (Q. 7:29).2 However, as Harvey explores, there is a subtle difference between these two terms for justice. The meaning of qisṭ refers primarily to its application concretely within the socio-economic domain, whereas ‘adl pertains primarily to the internal quality of the soul.3 The term ʿadl is used in the
Qur’an in the following senses:
“To act justly or equitably, to be fair in judgment, to be impartial in speech, or witness; to straighten someone to a state of moral uprightness, or from disbelief to faith, to offer a compensation in place of punishment for a sin, to deviate or turn away from the truth, or to set up something as equal to something else, which can have a positive connotation approximating the first of these, or a negative one referring to the sin of shirk, worshipping anything else alongside God.”
The moral and spiritual connotations of justice (ʿadl) in this passage echo partly al-Iṣfahānī’s definition of justice:
“Justice [al-ʿadl] is a term associated with equality [musāwāh]. It has various meanings, depending on the context. In the context of potential, it is an innate human desire for equality. In the context of action, it means dealing fairly with others. And in the context of the Divine, it describes the complete orderliness of God’s actions.
In the pursuit of justice, man tries to be virtuous, but can only be perfectly virtuous if his outer actions stem from an inner noble disposition and character. Outwardly just actions do not necessarily make one a just human being. If the intention of the just action is for the sake of show, a worldly benefit, or fear of a Sultan’s punishment, it cannot be truly just.”
Thus, for al-Iṣfahānī, justice (ʿadl) pertains to acting justly with others. Outer action is not enough; the person also needs to be upright in character. This is the internal condition of the soul; when in balance, the rational faculty predominates and justice as a cardinal virtue emerges. It is comprehensive: concerned with justice towards the self and others.
The appropriate term for justice towards the self is ʿadl, and the appropriate term for justice in society is qisṭ. The litmus test for this moral virtue is the concrete social situation.
These two levels of justice are not separate but complementary, for justice towards the self must affect justice in society, and justice in society must have its impact on justice to the self. The same applies to injustice. Injustice towards others will lead to the injustice of the soul.
Every action has consequences for the purification or deprivation of the human soul. Just actions, according to al-Iṣfahānī, are not only justice towards others but also justice to God.
Justice generally means equality in the sense of equating one thing with another. In the abstract sense, it could mean equality before the law; “The Believers are indeed brothers” (Q. 49:10). When used in the sense of distributive justice, it is expressed in the concept of qisṭ (equity), mīzān (scale), and taqwῑm (straightening). The notion of balance is expressed in the word taʿdῑl, and the notion of moderation in the word wasaṭ.
The opposite of justice (ʿadl), is injustice (ẓulm), from the verb ẓalama, which the Qur’an uses to refer to the one wronged (Q. 22:39) and to be denied one’s due (Q. 21: 47). The noun takes on the following meanings in the Qur’an: injustice (Q. 20:111), wrongdoing (Q. 6:82), placing something in the wrong place or attributing wrong to a person (Q. 25:4).6 For al-Iṣfahānī, injustice, or ẓulm, is to “put something in its improper place.”
He provides the analogy of a dot in the center of the circle as representing justice, and deviation from this center as injustice. He cites the verse: “O indeed, those who believe and debar others from the path of Allah have gone far astray” (Q. 4:167).
Deviation from justice is jawr (injustice). A more comprehensive term is ẓulm (injustice). Injustice is to be removed from the center, near or far, as indicated in the two verses: “But the devil wishes to lead them far astray” (Q. 4:60); and “It is as if those were called from a distant place” (Q. 41:44).7
Injustice (jawr) refers to stepping out of what is right and ending up at what is adjacent and wrong. This is why one’s neighbor is called jār, or the one adjacent to you.
This is why justice and wrongdoing are often narrated by the Prophet peace be upon him as referring to neighbors and their rights. The deviation in the word jawr is deviation or straying from the Right Path (ṣirāt al-mustaqīm).
Thus, there is a nuanced difference between jawr and ẓulm. Jawr is injustice related to straying and deviating from what is right, and ẓulm involves doing wrong by misleading others and concealing the truth from people, thereby oppressing them by keeping them in the dark. Thus, ẓulm has to do with darkness (ẓulma), and jawr has to do with deviation.
There are three kinds of injustice (ẓulm) described in the Qur’an. The first is between man and God; anyone who rejects faith in God is an aggressor (ẓālim): “Those who reject faith and do wrong, Allah will not forgive them” (Q. 4:167).
The second is among men, which is the worst kind of injustice. “Those who unjustly eat up the property of the orphans eat fire into their own bodies’ (Q. 4:10). The third is between man and himself. “They harmed Us not but they used to do injustice to themselves” (Q. 7: 160).8
Natural justice
Ibn Rushd (d. 1198), the Andalusian philosopher, held that the intellect is aware that murder and theft are unlawful. Abū Manṣūr al-Māturīdī (d. 944), the founder of a school of Sunni theology, stated that the intellect is aware of the existence of God and the universal forms of ‘good’ and ‘evil’ without the help of revelation, such as knowing intuitively that stealing is wrong.
As for particular practiced actions such as eating pork, we can only know these prohibitions through divine revelation. Ashʿarī Sunni theology differs in its view on knowledge of good and evil and holds the position that the morality of all actions, whether universal or specific, is knowable only through divine revelation.
Al-Iṣfahānī adopts the Māturīdī position in this respect, which is reflected in his Kitāb al-Iʿtiqādāt (Book of Beliefs). In this theological treatise, he was critical of the Muʿtazilites who attributed the knowledge of all good and evil to independent reason first, before its confirmation by revelation.9
The classical theory of natural law understands justice as a virtue grounded in the inner character of humankind. Justice is therefore tied up with an assumption that is grounded in the physical and psychic constitution of humans.
The classical theory assumes that principles of human conduct await discovery by human reason (with which man-made laws must conform), but for Iṣfahānī it is the divine law that conforms with the natural law of human nature.
God is the source of this divine law, just as He is the source of the natural law of innate nature (fiṭrah). This innate nature is inclined to know God and to know good and evil in the universal sense. The law of nature is, therefore, eternal like divine law because the former is the product of God’s will.
Al-Iṣfahānī reconciled natural justice with divine justice, as natural justice rooted in innate human nature is part of God’s providence. Justice as a universal principle permeates the whole of creation, and it is because of God’s justice that the world is balanced and orderly. Without this balance, the world would be disturbed and discordant.10
Al-Iṣfahānī states:
“God describes justice in terms of al-mīzān [the scale/the balance], because weighing is one of its obvious concrete actions. The Prophet Muhammad (ṣ) said, “The heavens and the earth have been established through justice.” That is to say, if the existence of the world and its principles were either more or less than what is required, the world would not be in perfect order.
[Ironically], unjust people expect justice to be done even thieves expect it from one another. If they agree on certain conditions, and some of them violate those conditions, [they are so incensed by the injustice] their relationships are thrown into chaos and disorder.
Thus, each soul naturally feels happy when seeing or hearing justice and feels unhappy to see or hear the opposite. That is why even the unjust admire just actions when they see or hear them. It is said a just person is confident of being cleared by God on the Day of Judgment.
Since man has an innate sense of justice, he is grieved by the abnormalities and disorders of the world. He is sad to see someone with physical deformities like a limp or a squint.
To achieve equality and symmetry, God placed single features [like the nose] in the middle, and other organs [like ears] in pairs, one on each side of the body. Imitating God’s design, painters and sculptors ensure that paintings and carvings are symmetrical and harmonious and that they are not distorted.11
The word mīzān signifies that God the All-Just administers balance in the universe, and there is nothing lacking. There is no injustice and imbalance. Balance in the universe reminds us that we should act with justice towards all things, including nature and man.
The Qur’an states: “It is Allah who sent down the Book in truth, and the Balance too” (Q. 42:17). And He said, “And the sky, He raised, and He set up the balance. That you may not transgress in the balance” (Q. 55:7). Thus, justice leads to balance, not only in nature and in our souls, but also in relations with fellow humans.12
Justice is also the reason why the world was created: “God made the heavens and the earth in truth so that each soul could be rewarded for what it had earned, and they will not be wronged” (Q. 45:22). Justice and balance were created by God in all things and beings in the universe, and so equilibrium in the world is an expression of divine justice.
Thus, “Such is the artistry of God, who has created everything with due wisdom, balance, and perfection” (Q. 27:88).
Al-Iṣfahānī sees justice (ʿadl) as a principle of equality and a means between excess and deficiency. It is innate in human nature and in the natural universe. God’s justice and orderliness are reflected in nature, humans, animals, and in all non-living beings.
Despite the innate sense of justice within humans, they are still capable of injustice. Hence, the only absolute justice lies with God. All other justice in this world is relative.
God alone can measure everything; “He encompasses whatever they have and measures everything” (Q. 72:28). With this absolute knowledge of human actions, God alone can hold man accountable on the Day of Judgment; thus, should proper justice not be meted out in this world, full justice will be exacted in the next.
Naquib al-Attas, a contemporary Malaysian scholar, acknowledges the existence of both natural and civil justice. Civil justice is concerned with law and order in society, including distributive and rectificatory (corrective) justice. The former is administered through the state and the latter through the courts.13 Al-Attas states:
“Justice is natural (fiṭrī) in the sense that justice as a whole precedes man and the state in time from the beginning of creation. Justice is natural because it is an integral part of the Divine principle or law that regulates the uniformity and rationality that is apparent in the whole of nature. Natural justice pertains to the nature (fiṭrah) of man as an individual.14
The Islamic conception of natural justice is not akin to the secular conception in which the idea of a transcendent God is absent, and the structure of nature is self-contained and independent. God commands justice, has created man with a natural inclination to it, and justice means to comply with the divine command. This is justice to God, and justice to man’s primordial nature (fiṭrah), which is itself created by God.
Natural law in the Qur’anic sense is the customary law of God acting upon creation; that is sunnat Allah, in consonance with God’s knowledge, power, and will, “and the requirements of the qualities of perfection inherent in His Names al-Ḥakῑm [The Wise] and al-ʿAdl [The Just] apportioning to each created thing its proper measure, i.e.,
its qadar.”15 Nature in the universal sense is ṭabῑʿah. Natural law in the secular sense is independent of the Divine; the law of nature operates independently, but natural law in the Islamic sense presumes that all things in nature are directly created by God and are dependent upon Him for power and sustenance.
Thus, people obey God not only because He is Good but also because their innate nature (fiṭrah) predisposes them to good and obedience. The Qur’an recognizes that we have been created to admire virtues in others. “God has endeared to you belief and made it appear graceful to your hearts. And he has made detestable to you unbelief, ungodliness, and disobedience” (Q. 49:7-8).
By God’s Grace, believers have cultivated their souls in such a manner that they are in harmony with their innate nature and so they naturally find good action endearing and bad action abominable. Thus, the recognition and pursuit of virtue is an innate quality in man, born out of his natural state of fiṭrah.16
The pagan Arabs admired the Prophet’s trustworthiness (al-Amῑn). Justice is a result of aman (to be safe) and to have amānah (trustworthiness). Thus, the one who upholds safety and is trustworthy is amīn. The prerequisite for justice is trustworthiness.
That is why the Prophet Muhammed peace be upon him was first and foremost recognized as trustworthy. Only then was he trusted to work towards justice for all.
Just as we naturally admire virtues in people, we also naturally abhor vices in people. We all abhor the thief who steals from us. The thief himself abhors the thief who steals from him and will demand his right to have his goods returned to him. He naturally and instantaneously demands justice.
The Qur’an appeals to human conscience and man’s innate sense of good and evil (e.g., Q. 7:157; 16:90; 7:28; and 7:33).17 When justice appeals to innate human nature and reason, it falls in the category of natural justice. Righteous people act out of their pure nature; they will honor agreements, be delighted by acts of justice, and offended by injustice. They will not be diverted from justice on account of fear of retribution but will be moved by their natural reason and their human conscience.
The use of discursive reason allows us to translate the natural inclination to God (fiṭrah) and to all that is just and good into practical law. Al-Iṣfahānī, partly inspired by Aristotle, introduced distributive and rectificatory justice into his Islamic theory of justice.
The social laws of justice flow out of the quest for equality in natural justice and also try to fulfill the five objectives of sharῑʿah: protection of life, reason, wealth, progeny, and religion.
These social laws of justice are not absolute but are attempts to express the principles of divine law, which are eternal. Ultimately, no absolute justice is possible in this world. A murderer might get away with murder in this world, but not in the next world.
Ethical justice: Justice of the self
Ethical justice is concerned with the justice of the soul, where the mean between the extremes of vice and virtue is attained. Here the concern is with justice as a virtue of individual character. For example, generosity is the mean between stinginess and extravagance.
The Qur’an calls for the mean or the middle-path: “Pursue the middle path as you have been commanded” (Q. 11: 112). Since justice is the whole of virtue in the sense that it pertains not only to the justice of the soul but also to justice to others, the two levels of justice are interconnected, and the social dimension of justice flows out of the individual dimension of justice.
The Islamic philosophers of the eleventh century adopted the Platonic-Aristotelian division of the soul into three faculties, the rational (reason), the concupiscent (desire), and the irascible (anger). When the rational predominates over the concupiscent and irascible faculties, the cardinal virtues of temperance, courage, wisdom, and justice will emerge.
Al-Iṣfahānī integrated this psychological model into the Islamic worldview such that all the philosophical virtues are spiritualized and are directed towards happiness not only in this world but also in the hereafter.
When reason has control over desire and anger, the four cardinal virtues will emerge, which we refer to as the ethical justice of the soul. Justice is the metaphorical crown of the three individual virtues of the soul. It counteracts the crude individualism of the soul that demands everything for itself. Justice, however, does not demand everything for the self only, but also for others.
A well-cultivated character seeks justice for others and will check all those who cause willful harm to others, whether against their body, life, property, social status, reputation, or honor. In short, one must be just to oneself in order to be just towards others.
Justice to the self implies the affirmation and fulfillment of the covenant between the soul and God. Justice in the Qur’an does not refer to a state of affairs such as: “Between one man and another; or between society and the state; or between the ruler and the ruled; or between the king and his subjects.”18 Justice is a condition whereby a person is in his right and proper place.
This is not merely a situation in relation to other people but also in relation to oneself. Justice primarily refers to a person’s relation to themself. The Qur’an makes it plain that when a person is unjust, he is being unjust (ẓālim) to himself.
If one allows one’s carnal soul to dominate one’s rational soul, one does wrong to others and wrong (ẓulm) to oneself. One has abused one’s soul and made it exceed the bounds of its own nature and caused it to deviate from the true path.19
Social justice in this sense is not mere conformity to external laws but also requires self-discipline and control over the emotions. Hatred for others should not lead to the avoidance of justice. In this sense, the Qur’an states: “O believers. Be steadfast for the sake of God and bear true witness to equity (shuhadāʾ bi-al-qisṭ) and let not the enmity for others incite you to commit injustice (ʿalā allā taʿdilū). Do justice, (iʿdilū) for this is nearer to piety” (Q. 5:8).
Thus, there is a relation between justice (ʿadl) and piety (taqwá). Here the reference is to qisṭ, which pertains to social justice. The word taqwá implies self-restraint due to the consciousness of God and a sense of accountability to Him on the Day of Judgment.
The warning is that in striving for revenge or social justice one must be careful not to commit a wrong greater than the wrong done by one’s enemy. When Prophet Muhammad peace be upon him conquered Mecca, he forgave his bitterest enemies.
For al-Iṣfahānī, there are five ways a man should practice justice:
“Between him and his Creator, through living in the knowledge of His Oneness and in accordance with His Laws.
Between the faculties of the soul, so that desire submits to reason. It is said: the just man is he who is just to his intellect, not his desire.
Between him and his forefathers, following their good advice and praying for them.
In his conduct towards others, honoring their rights, and being fair to them in selling and buying and in contracts and leases.
Dispensing justice through sound judgment. This applies to governors and their agents.20
Injustice for al-Iṣfahānī also has five categories:
“First, injustice to the Almighty Lord; second, injustice to the faculties of the soul; third, injustice to the ancestors; fourth, injustice to those who deal with him from among the living; and fifth, injustice to the common people.”
Al-Iṣfahānī states:
The most unjust person is the one who wrongs his own soul, his own relatives, and then the rest of mankind. The most just among people is one who is just to all people, his relatives and then with his soul. That is to say, the unjust person cannot be unjust to others unless he transgresses himself first.21
The two passages complement each other; the first deals with the five categories of justice, and the second with the five categories of injustice. I would like to comment on the first two categories of justice: justice to God (the first category) and justice to the self (the second category). The first category deals with basic knowledge of God (His Oneness and Attributes), obedience in the form of obligatory worship such as prayer and fasting, and obedience to the Prophet of God peace be upon him.
The second category of justice deals with justice to the three faculties of the soul, where reason predominates over desire and anger. Justice in this sense is a moral virtue and it is the basis of justice in a society.
It is the precondition of true social justice. Justice to the self, which is the justice of character, is followed by justice to others, which is social justice. Al-Iṣfahānī states: “He is just to himself first, before being just to others.”22
If a person cannot be just to himself, greed will cause him to usurp the wealth of others; hunger for power will lead him to eliminate his opponents through violent means; stinginess will lead him to hoard wealth and eschew generosity. Greed is injustice towards the self, and it is confirmed in the Qur’an:
“O believers do not usurp unjustly the wealth of each other—not even by trade by mutual consent—and do not destroy yourselves” (Q. 4:29).
According to Hourani, the term ẓulm al-nafs, or wronging oneself, means primarily to do wrong to someone and in doing wrong to someone one is simultaneously doing wrong to oneself. In this sense, it is a moral term and does not primarily connote harming someone accidentally, although it can also have this connotation. Some acts of ẓulm are also related to God and include being ungrateful to God or rejecting God.
The Qur’anic concept of wrongdoing is different from that of Aristotle. The phrase ẓulm al-nafs is connected to punishment in the hereafter because those who are guilty of sinful actions will face consequences in the hereafter.
If the agent harms himself involuntarily or unwittingly, such harm has no moral value, as no one can be held responsible. However, a wrongful act committed out of volition will have the same consequences as those of self-harm.23
Justice in the commercial sphere should be tempered by compassion. Muhammad Asad, the Polish commentator on the Qur’an, states that although trade is mutual, the weaker party may consent under duress: “The believers are prohibited from devouring another person’s possessions wrongfully even if that other person—
being the weaker party—agrees to such a deprivation or exploitation under the stress of circumstances.”24 One party should not exploit the desperation of the other but should be compassionate and not force the other party to consent under duress.
This would be an injustice not only to the person who is under duress but also to the soul of the person who causes the injustice. Greed can cause one to be unjust towards others and this injustice will be spiritually harmful to one’s soul. If, however, the soul is just and in balance, the person with such a soul will be just towards others.
I would like to turn now to a commentary on the following verse: “God commands you to deliver the trusts to keepers worthy of them; and when you judge between people, that you judge with justice” (Q. 4:58). Naquib al-Attas states that the first part pertains to trust (amānah) and its keeper (ahl).
The keepers should be worthy of trust by virtue of their moral integrity, skill, and knowledge of the revealed Truth.
The second part of the verse pertains to arbitration when settling disputes; the keeper of the trust should be prudent and possess religious ethics. God commands to virtue, not only for society as a whole but also the individual. The command refers to both the religious and the worldly affairs of the state and the self.
The various contexts involved pertain to three situational realities: 1) God in relation to His creation; 2) man in relation to God and His creation; and 3) man in relation to himself.25
The second reality corresponds to man’s justice to God and the third corresponds to justice towards the self. The former refers to man’s duty to God and his role as vicegerent. The latter refers to good moral character, when the rational faculty predominates over the two lower faculties of the soul, and where man is dutiful towards God.26 As mentioned, the word amānah connotes trustworthiness.
When there is doubt in the trustworthiness and justice of political leaders of a country, the citizens become disillusioned and frustrated because the state is unable to protect its citizens from crime and insecurity. Their minds are agitated, and they live in fear of the unknown. When the soul is tranquil, it is free of fear and anxiety, and the faithful are not confused about their ultimate destiny.27
The trustworthy are to be graded according to their excellence of character and cognitive ability. They should have a sense of critical self-examination (muḥāsabah), where they become aware of their moral weaknesses, as these arise due to the incitement of the soul to evil (al-nafs al-ammārah).
This is how they purify their soul of bad qualities and restrict their lower desires from dominating their rational faculty.28 These are the people suited to fulfill the trust granted to them.
The verse warns of the tendency to stray from the path of justice if people have the opportunity to do so. If they do not have proper knowledge and character, they may be inclined to abuse power. In verse 33:72 in the Qur’an, God offered the trust to the mountains, and they refused to accept this responsibility.
This is the trust or responsibility of human free will which humankind accepted from God, but they have proved to be unjust [ẓalūman] and ignorant [jahūlan]. This ignorance is not innocent but compounded by a perverse arrogance of the soul.29 Thus, al-Attas stresses the importance of justice as a virtue of character, which is a primary condition of dispensing social justice.
This verse was revealed in the period of jāhilīyah, when the custodial duty of keeping the keys to the Kaaba was entrusted to Uthman ibn Talḥah, who forbade the Prophet peace be upon him from entering the Kaaba. After the conquest of Mecca,
The Prophet peace be upon him borrowed the key from Ṭalḥah but then returned it in accordance with the divine instructions in verse 4:58. Thus, the keepers of trusts are not only jurists. The main message is that trusts should be granted on the basis of merit and trustworthiness and that those in authority should decide cases of disputes.30
Legal justice
The essential feature of justice is equality, which implies equal rights for all. This principle is the basic condition of communal life. When justice is applied within the political and judicial domains, it constitutes legal justice. The law can be just if it aligns with the idea of what is right.
In this sense, justice does not mean the moral value of a person, but a situational value, which implies the good as it applies to a person. Justice as a moral value is different, and we have discussed this in the section on ethical justice.
Thus, in this sense, the discussion on legal justice refers to the situational value of justice, which is the justice of institutions, not the justice of individual character. As already mentioned, ethical justice is of a higher value as it is not constrained by the law. It is a moral action that stems spontaneously from a soul that is committed to what is right and has conquered its lower desires.
This application of justice varies from time to time. Islamic thinkers will typically draw upon the knowledge and experience of the time or what is available to them in the literature. Al-Iṣfahānī, in his commentary on the Qur’anic verses on justice, expounded on all three forms of justice: natural, ethical, and legal.
For legal justice, he adopted distributive and rectificatory forms of justice from Aristotle, integrating these into the Qur’anic worldview. Aristotle’s notion of legal justice is explicated in his Politics, but this has not been linked to justice as a virtue of individual character as in his Nicomachean Ethics; rather, his Politics is located within the justice of institutions in his city-state or polis.31 This is in contrast to the stoic tendency to depoliticize the social aspect of justice.32
Al-Iṣfahānī applied ijtihād, or intellectual explication, to socio-economic affairs. These are not clear-cut in the revealed text, which allows for varied applications of justice in accordance with new circumstances. He introduced distributive justice (equitable distribution of goods) and rectificatory justice (punishment for wrongdoing).
These two forms of justice should be administered through courts and should, therefore, be distinguished from justice as a virtue of character. Al-Iṣfahānī, however, never intended, like Aristotle, to separate legal justice from ethical justice. For al-Iṣfahānī, to be a true vicegerent of God in the social sphere, one must be able to exercise leadership over oneself first before leadership over society.
He states:
He who cannot rule over his own soul is not suitable to rule over others. For this reason, God Most High rebukes unworthy men who wish to rule over other people, commanding good and prohibiting evil without having reformed themselves. He declares: “Do you command others to be righteous and forget yourself while you recite the Book?”33
In other words, one has to be exemplary in character, because the politics of self should precede the politics of society. His view of justice as a virtue, however, is not so stoic as to depoliticize the social aspect of justice. We know from his ethical treatise that the vicegerency of God is one of the three goals of human beings as stated in the Qur’an.34
Distributive justice: Islamic economic justice
Distributive justice implies economic justice. It is concerned with the equitable distribution of wealth in society. For justice to be applied as a principle of equality one must assume that all humans are equal. God has commanded justice but has not specified how it should be implemented.
Although justice is essentially about equality, the Qur’an recognizes differences in people’s talents and skills in the following verses: “He has made you successors in the land and elevated some in rank above others. And He may try you by what He has given you” (Q. 61:66); and “God has favored some of you over others in the provision of means” (Q. 16:71).
The differences here pertain to people’s spiritual rank (‘ibādāt); however, when it comes to relationships with others (muʿāmalāt), then all people should be treated equally before the law. A crime is a crime whether committed by someone of high or low rank, a religious or non-religious person.
All people are equally accountable, no matter what their race, color, or creed. The following Qur’anic verse is usually cited to connote the equality of all human beings:
“O mankind, surely We have created you from a male and a female and made you tribes and nations that you might know one another. Surely the noblest of you in the sight of God is the one who is the most pious among you (Q. 49:13).
The verse refers to the equality of all human beings and only identifies the superiority of one person over another in terms of piety (taqwá). The verse addresses all of humankind, and on the Day of Judgment God will not ask about status or lineage, but only about one’s piety.
The reference to “nations and tribes” is meant to foster rather than to diminish the mutual desire to understand and appreciate the essential human oneness underlying outward differentiations and, correspondingly, all racial, national, or tribal prejudice is condemned implicitly in the Qur’an.
In another verse, God states: “Keep your duty to God [or fear God] by whom you demand your rights from one another and maintain the ties of kinship” (Q. 4:1). These verses reinforce the idea of the unity of origin and equality in creation. They also imply that people have rights and duties towards one another as they all originate from the same divine source. The implication is not a mere sense of equality of creation, but also the reciprocal rights that ensue.
Equality is normally regarded as fundamental to distributive justice, but one should also consider differences in individual needs. The libertarian philosophers hold that a free-market system will guarantee social justice, and that the maximization of utility should be the primary concern of distributive justice.
John Rawls (d. 2002), in A Theory of Justice (1971) disagreed with the utilitarian perspective. The increase in total happiness might be purchased at the cost of the suffering of individuals. He also disagrees with the laissez-faire system, because it encourages hoarding. Justice should provide basic liberties for all citizens, such as freedom of speech, religion, and social and economic equality.
This does not imply an equal distribution of wealth but permits only social and economic equalities that benefit the neediest members of society.35 This aligns with the implementation of justice (qisṭ) in an equitable manner in the socio-economic sphere.
The government should provide primary needs like food, shelter, and clothing to all its citizens. The rich must share a portion of their wealth to benefit the poor. For Rawls, wealth should be distributed equally unless an unequal distribution would benefit the least privileged in society.36
John Rawls, according to Naqvi, is closer to the Islamic position, which makes it mandatory for the rich to transfer a portion of their wealth to the poor.37 However, the view of Rawls is not without criticism as Naqvi states: “The Rawlsian difference principle accords priority to the needs of the least privileged members of the society.
But even in this case, those who are really worst off [e.g., those with physical disabilities] may be excluded from the Rawlsian principles of justice which he defines as ‘a scheme of cooperation for reciprocal advantage.’”38
At the pragmatic level, Rawls’ position of the rich sharing with the poor is compatible with the Islamic system of zakāt. However, at the spiritual level, it is incompatible with this system. For Rawls, the giving by the rich to the poor is mandated by the secular state but in Islam, it is made mandatory through the Islamic state.
Moreover, for Rawls, the rich may not be happy to be coerced into giving away their wealth, but in Islam the rich are generous with their wealth willingly, because it is a religious obligation and because it purifies their wealth and their souls. That is to say, it is spiritually fulfilling both at the level of the society and the level of the soul. At the spiritual level, the rich are not doing the poor a favor, but are fulfilling their duty to God.
They know that the wealth God granted them is a trust to be shared. Thus, zakāt is an obligation for every economically able Muslim and it is a fundamental way of bringing about social justice.39 Within the framework of the maqāsid al-sharī’ah (objectives of the revealed law).
Islam encourages the perpetual circulation of wealth (zakāt) and the perpetual investment of wealth for a noble cause.40 Islam teaches that all wealth belongs to God and what we possess is only a trust from God to be used, not abused.
Wealth should be spent lawfully and should not be hoarded, and a portion of it is the right of the poor.41 The concentration of wealth in the hands of the rich is undesirable and hoarding of wealth is condemned as God states: “So that it [the wealth] does not concentrate in the hands of the rich among you” (Q. 59:7).
And “To those who accumulate gold and silver, and do not spend in the way of God, announce the news of painful punishment” (Q. 9:34-35). In commenting on the latter verse, al-Iṣfahānī states:
God has prohibited hoarding the dirham and not putting it into active use in economic affairs. … Hoarding gold and silver is like locking away rulers, preventing them from managing people’s livelihood. The Prophet (ṣ) said, “He who drinks from a silver jug actually drinks the fire of hell.”42 Jugs and plates made of gold and silver reduce the amount of money in circulation and so stifle trade.43
Rectificatory justice: Crime and punishment
Rectificatory justice is concerned with righting injustice. In Western philosophy, Aristotle’s view is the classical statement on this kind of justice. Rectificatory justice is not the whole of justice; rather, it is a special part along with distributive justice. The latter is concerned with the distribution of things that can be divided among members of society in equal or unequal shares.
Rectificatory justice is concerned with rectifying transactions where someone was treated unfairly (and so unjustly). When one has inflicted harm on another and has thereby profited, it is the aim of rectificatory justice to punish the perpetrator through a fine or imprisonment, depending on the severity of the offense. However, there should also be scope for the rehabilitation of the offender and compensation for the victim.
Al-Iṣfahānī adopted rectificatory justice and integrated it into an Islamic theory of justice. This is a form of legal justice and therefore must be realized through the courts, not personal revenge. It is a universal norm for courts of law to assume a person innocent until proven guilty.
If a person wants to take justice into his own hands, his verdict would be based on anger and not reason, so it may not be equal to the severity of the offense. If brought to the court, a judge decides on the kind of punishment, whether it is for minor crimes such as theft or more serious crimes such as murder. In the case of murder, the court must prove whether the murder was premeditated.
But if the crime was committed due to an ineluctable urge, uncontrollable rage, or under duress, the degree of responsibility will be diminished, and the offender will receive a lesser sentence. In the case of premeditated murder, the perpetrator will be given a life sentence, but the circumstances under which the crime was committed could influence the judge’s decision.
Justice and benevolence
Justice and benevolence are two sides of the same coin, but they are not of the same value. Justice is an expression of the law that seeks equality, whereas benevolence is an expression of the human soul that seeks generosity and compassion.
Since benevolence is a voluntary, spontaneous expression of the soul, it is a higher virtue according to al-Iṣfahānī, which is confirmed in the Qur’an.
This is explained below with the example of dividing an apple into two equal parts. Benevolence and compassion require the view that bad things happen to people through no fault of their own. The insight of compassion is that people are dignified agents, but they are also victims.
Various social support systems presume that people are victims of life’s ills rather than agents capable of working to better their own lot. God requires that we exercise compassion towards His servants: “They are compassionate towards each other” (Q. 14:48).
Justice is the basic requirement of the law and is important for maintaining order in society. Benevolence means to be kind and forgiving. God states: “God commands justice, benevolence, and giving [of your wealth] to kith and kin, and He forbids indecency, evil, and lawlessness” (Q. 16:90). Kamali explains this verse, stating:
“The juxtaposition of iḥsān (benevolence) next to ʿadl tends to open up the scope of justice to considerations of equity and fairness. Whereas ʿadl is primarily regulated by law, the scope of iḥsān is not restrained by conformity to formal rules. Iḥsān can consist of forgiveness and returning good for evil or doing a good turn and being generous to those who may have neither claimed nor demanded justice. The reference to financial help in the text evidently accentuates the material dimensions of both ʿadl and iḥsān.’”44
Justice and benevolence pertain mainly to socio-economic situations. Economic justice means giving each person his material due. If a person is not able to give another his due because of unforeseen circumstances, then there is the option to act with benevolence.
For instance, justice means to divide the apple into two equal halves, half for ‘Umar and half for Zaid. Injustice is when Zaid takes ‘Umar’s share.
Benevolence is when ‘Umar grants Zaid his share. The latter act of iḥsān is not constrained by the law but is an act of compassion arising from ‘Umar’s kind nature. ‘Umar’s benevolence transcends legal justice.
This kind of benevolence is absent in Aristotle, and for al-Iṣfahānī it has more moral value than justice. In fact, justice and benevolence are two sides of the same coin, so should go hand in hand.
If one is in a position to judge between two persons, then one must apply justice (ʿadālah). As for benevolence, it depends on the individual parties, the perpetrator and the victim. Benevolence includes forgoing one’s right to justice. The Qur’an states: “To forgo it [justice] is more righteous.
And do not forget to be bountiful to each other. Allah sees what you do” (Q. 2:237). Furthermore, God elevates those who act with grace: “To those who do good is the best reward and more” (Q. 10:26).45 Benevolence (iḥsān) involves not only forgoing one’s right to justice but also demonstrating kindness and sympathetic compassion (shafaqah) towards the perpetrator, in spite of the wrong he has done.
God prescribes retaliation as a form of justice but grants believers the option to act with benevolence. This is spiritually beneficial and serves as atonement as God states: “And We prescribed to them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds retaliation; but whoever forgoes it charitably, it would be an atonement for him” (Q. 5:45). It is, therefore, better for a person’s spiritual well-being to rather respond charitably than vengefully.
Al-ʿafw (forgiveness) and al-ṣafḥ (pardon) are forms of forbearance and benevolence. The former is to overlook a person’s wrong, and the latter is to refrain from punishing him for his wrong. God states:
So, pardon [their wrongs towards you] with a most graceful pardon [without grudge] (Q. 15:85);
Those who curb their anger and those who pardon their fellow men: God loves those who do good (Q. 3:134).
Yet, pardon them and forgive: God surely loves those who do good to others (Q. 5:13);
But he who pardons and makes peace, his reward is with God (Q. 42:40).
Al-Iṣfahānī states that benevolence leads to reconciliation, but justice can lead to alienation.46 Justice is the least of morality; it is to give the other person his due in accordance with the law. Shylock in The Merchant of Venice sought minimal justice, and said:
“And if you wrong us, shall we not revenge?”47 Antonio could not repay the loan on time, and Shylock demanded a ‘Pound of Flesh’ and was not prepared to pardon him.
In terms of Qur’anic verse 5:45, Shylock was within his rights to ask for retribution, but it would have been more charitable on his part to forgo his right. Indeed, pardon is a higher ethical value than justice, as it is determined by morality, not legality.
For the sake of law and order in society, laws of punishment should be enforced, especially for serious crimes such as murder. However, the desire for revenge should not lead to vigilantism. One should curb one’s anger and follow the due process of law.
The 2017 Pakistani drama serial Khaani, is a good illustration of justice through legal means. The son of a wealthy politician named Hadi murders Khaani’s brother and is sentenced to death by hanging. Khaani is satisfied that justice was done but, out of compassion, she requests that Hadi not be hanged but given life imprisonment.
This is true reconciliation: the perpetrator was remorseful and Khaani forgave him. This is a good example of justice with compassion.
Khaani’s anger drove her to seek justice for her brother’s death, and she achieved it. Anger is often a motivation for social justice, especially if we know that the damage was willingly inflicted by the agent. Khaani sought justice through the legal system, not through personal revenge. She is a good example of justice tempered by mercy.
What about mercy without justice? An example of this is the Truth and Reconciliation Commission at the end of apartheid South Africa. The perpetrators confessed their crimes, and the victims forgave them. But justice was not done to the victims, as they were not compensated for their losses. This is mercy without justice.
Compassionate justice comes into play when we are aware that the offender is himself a victim of circumstance. This may not lessen his punishment but increases our sympathy. As in the above example, we are compassionate because we know that during apartheid there was a double form of injustice in the form of inequality of opportunity as well as inequality of environment.
Today, South Africa has equality of opportunity but not equality of environment. Weinreb holds that equal opportunity is good but of no use if the person’s circumstance provides no hope of success. “It [equality] is favored nevertheless because it sustains an illusory compatibility between the affirmation of human equality in general and recognition of individual differences.
The illusion makes the principle of equal humanity or equal dignity and respect seem to work.” [48] However, individuals may have great potential, but if the environment is not conducive, they cannot flourish. Just as plants will wither away due to poor soil, so will humans deteriorate due to poor environments, as Thomas Gray states in Elegy Written in a Country Churchyard: “Full many a flower is born to blush unseen and waste its sweetness on the desert air.”49
Islam aims not only for the equality of opportunity to acquire income and wealth but also the equality of economic conditions. Equality of opportunity alone will not relieve the misery borne of the brutal childhoods of many stunted souls.
There is a big difference in people’s capacity to make use of these opportunities, which needs to be “redressed by a significant redistribution of income and wealth to provide them with equal starting points in life.”50 Muslim countries must work towards equality of opportunity and equality of environment through an egalitarian redistribution of income and wealth based on Qur’anic principles of justice.
Conclusion
The Islamic form of distributive justice could create a society that may not be equal in economic standards because it must allow for individual differences, depending on the degree of effort put in. Nevertheless, whether such a judicial system is inspired by Islamic thinkers such as al-Iṣfahānī or it takes on another form.
If administered by those who are just and righteous as suggested in surah al-Nisāʾ, verse 58, it would help those who are the least fortunate and bridge the gap between rich and poor in such a way that we would never again live in an Islamic society where there is abject poverty.
Justice in the Qur’anic context is about conforming to the divine law and being obedient to God. Justice in the Qur’an has no room for discrimination based on color, race, or gender. Qur’anic justice is a moral virtue and a legal concept. These two dimensions of justice—justice towards oneself and justice towards others—are two sides of the same coin, so should not be separated.
Those in leadership positions should be the embodiment of moral virtue if they are to dispense justice in a fair manner. If justice is a virtue of the soul, as al-Iṣfahānī has demonstrated, it will provide the strength of character and the force of will to implement justice at the external level of the society.
Principles of justice should not be morally neutral but informed by a clear set of values, not only for the sake of human rights but also to nurture these rights. The focus on human rights in Western society is partly a result of self-interest, and partly an over-legalistic conception of justice.
This has led to great societal injustices. There is an urgent need to revitalize the concept of justice as a virtue for the sake of peace and happiness. While Western philosophy defines justice as ‘giving to each what is due’, Islamic philosophy, while acknowledging justice as equality, views justice as an overflowing stream that sweeps away inequities.
Islamic justice is not to be conceived in purely legalistic terms but has an ethical spirit that allows for spontaneous acts of kindness from the heart. The Qur’an assigns responsibility for justice to both the individual and the government. There is no limit to how much voluntary charity the individual can give to help the less fortunate.
Islamic governments are expected to collect and dispense the compulsory dues paid to those who are in need, such as orphans, widows, the sick, and the elderly.
Al-Iṣfahānī in the eleventh century integrated the Aristotelian forms of distributive and rectificatory justice into the Islamic worldview. Contemporary scholars should continue in this spirit and apply their minds to contemporary knowledge and the best available approaches to implement distributive justice in Muslim societies.
As for rectificatory justice, it is not only a matter of addressing individual crimes but also about redressing historical injustices through affirmative action.
Muslim modernists and revivalists have been mainly concerned with distributive justice. The modernists who were inspired by Western ideals hold that distributive justice is for the public good, and therefore does not need Islamic justification, while the revivalists are hesitant to adopt Western forms of justice without integrating them with the moral and spiritual values of Islam.
Justice in the context of Islamic virtue ethics is incompatible with many modern liberal conceptions of justice, which tend to be more inspired by individualistic self-interest than humanitarian altruism.
By Dr. Yasien Mohamed
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