Islamic ethics

In the early Islamic Caliphate, the head of state, the Caliph, had a position based on the notion of a successor to Muhammad's political authority, who, according to Sunnis, were ideally elected by the people or their representatives.[28] After the Rashidun Caliphs, later Caliphates during the Islamic Golden Age had a lesser degree of democratic participation, but since "no one was superior to anyone else except on the basis of piety and virtue" in Islam, and following the example of Muhammad, later Islamic rulers often held public consultations with the people in their affairs.[29]

Electing or appointing a Caliph

Fred Donner, in his book The Early Islamic Conquests (1981), argues that the standard Arabian practice during the early Caliphates was for the prominent men of a kinship group, or tribe, to gather after a leader's death and elect a leader from amongst themselves, although there was no specified procedure for this shura, or consultative assembly. Candidates were usually from the same lineage as the deceased leader, but they were not necessarily his sons. Capable men who would lead well were preferred over an ineffectual direct heir, as there was no basis in the majority Sunni view that the head of state or governor should be chosen based on lineage alone. Al-Mawardi has written that the caliph should be Qurayshi. Abu Bakr Al-Baqillani has said that the leader of the Muslims simply should be from the majority. Abu Hanifa an-Nu‘man also wrote that the leader must come from the majority.[30]

Majlis ash-Shura

Traditional Sunni Islamic lawyers agree that shura, loosely translated as 'consultation of the people', is a function of the caliphate. The Majlis ash-Shura advise the caliph. The importance of this is premised by the following verses of the Qur'an:

"...those who answer the call of their Lord and establish the prayer, and who conduct their affairs by Shura. [are loved by God]"^[42:38]

"...consult them (the people) in their affairs. Then when you have taken a decision (from them), put your trust in Allah"^[3:159]

The majlis is also the means to elect a new caliph. Al-Mawardi has written that members of the majlis should satisfy three conditions: they must be just, they must have enough knowledge to distinguish a good caliph from a bad one, and must have sufficient wisdom and judgment to select the best caliph. Al-Mawardi also said in emergencies when there is no caliphate and no majlis, the people themselves should create a majlis, select a list of candidates for caliph, then the majlis should select from the list of candidates.[30] Some modern interpretations of the role of the Majlis ash-Shura include those by Islamist author Sayyid Qutb and by Taqiuddin al-Nabhani, the founder of a transnational political movement devoted to the revival of the Caliphate. In an analysis of the shura chapter of the Qur'an, Qutb argued Islam requires only that the ruler consult with at least some of the ruled (usually the elite), within the general context of God-made laws that the ruler must execute. Taqiuddin al-Nabhani, writes that Shura is important and part of "the ruling structure" of the Islamic caliphate, "but not one of its pillars," and may be neglected without the Caliphate's rule becoming unIslamic. Non-Muslims may serve in the majlis, though they may not vote or serve as an official.

Islamic legal framework included religious pluralism. Classical Sharia, the religious laws and courts of Christians, Jews and Hindus, were usually accommodated within the Islamic legal framework, as seen in the early Caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system.[31][32] Non-Muslims were allowed to engage in religious practices that was usually forbidden by Islamic law. In a notable example, Zoroastrian practice of incestuous "self-marriage" where a man could marry his mother, sister or daughter, was to be tolerated according to Ibn Qayyim (1292–1350). He based his opinion on the precedent that Muhammad, who did not forbid such self-marriages among Zoroastrians despite coming in contact with them and having knowledge of their practices.[33] Religious minorities were also free to do whatever they wished in their own homes, provided they did not publicly engage in illicit sexual activity in ways that could threaten public morals.[34]

Citizens of the Rashidun Caliphate were also free to criticize the Rashidun Caliphs, as the rule of law was binding on the head of state just as much as it was for the citizens. In a notable incident, when Umar tried to investigate a disturbance, by entering a home without permission, he was criticized for his behavior; he was also later criticized for the judgement he gave in that case.[35] There were also numerous other situations where citizens insulted Caliph Umar, but he tolerated the insults and simply provided them explanations. Similar situations also occurred during the time of Caliph Ali. For example, there was an occasion when he was giving a sermon and a Kharijite rudely interrupted him with insulting language. Though he was urged to punish the interrupter, Ali declined on the grounds that his "right to freedom of speech must not be imperilled."[36]

Imad-ad-Dean Ahmad quotes a letter by a cousin of Caliph al-Ma'mun, in which he gives permission to a Christian he was attempting to convert to speak his mind freely, as evidence that in Islam even religious controversies were not exempt from open discussion.[37]

According to George Makdisi and Hugh Goddard, "the idea of academic freedom" in universities was "modelled on Islamic custom" as practiced in the medieval Madrasah system from the 9th century. Islamic influence was "certainly discernible in the foundation of the first deliberately planned university" in Europe, the University of Naples Federico II founded by Frederick II, Holy Roman Emperor in 1224.[38]

In a letter written by the fourth Rashidun Caliph and first cousin of Muhammad, Ali ibn Abi Talib to his governor of Egypt, Malik al-Ashtar. The Caliph advises his governor on dealings with the poor masses thus:

Out of your hours of work, fix a time for the complainants and for those who want to approach you with their grievances. During this time you should do no other work but hear them and pay attention to their complaints and grievances. For this purpose you must arrange public audience for them during this audience, for the sake of Allah, treat them with kindness, courtesy and respect. Do not let your army and police be in the audience hall at such times so that those who have grievances against your regime may speak to you freely, unreservedly and without fear. Nahjul Balaagha letter 53

In the field of human rights, early Islamic jurists introduced a number of advanced legal concepts which anticipated similar modern concepts in the field. These included the notions of the charitable trust and the trusteeship of property; the notion of brotherhood and social solidarity; the notions of human dignity and the dignity of labour; the notion of an ideal law; the condemnation of anti-social behavior; the presumption of innocence; the notion of "bidding unto good" (assistance to those in distress); and the notions of sharing, caring, universalism, fair industrial relations, fair contract, commercial integrity, freedom from usury, women's rights, privacy, abuse of rights, juristic personality, individual freedom, equality before the law, legal representation, non-retroactivity, supremacy of the law, judicial independence, judicial impartiality, limited sovereignty, tolerance, and democratic participation. Many of these concepts were adopted in medieval Europe through contacts with Islamic Spain and the Emirate of Sicily, and through the Crusades and the Latin translations of the 12th century.[39]

The concept of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter."[41] There is evidence that John Locke's formulation of inalienable rights and conditional rulership, which were present in Islamic law centuries earlier, may have also been influenced by Islamic law, through his attendance of lectures given by Edward Pococke, a professor of Islamic studies.[42]

Early Islamic law recognized two sets of human rights. In addition to the category of civil and political rights (covered in the Universal Declaration of Human Rights), Islamic law also recognized an additional category: social, economic and cultural rights. This latter category was not recognized in the Western legal tradition until the International Covenant on Economic, Social and Cultural Rights in 1966.[43] The right of privacy, which was not recognized in Western legal traditions until modern times, was recognized in Islamic law since the beginning of Islam.[44] In terms of women's rights, women generally had more legal rights under Islamic law than they did under Western legal systems until the 19th and 20th centuries.[45] For example, "French married women, unlike their Muslim sisters, suffered from restrictions on their legal capacity which were removed only in 1965."[46] Noah Feldman, a Harvard University law professor, notes:

As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.[47]

In the North Carolina Law Review journal, Professor John Makdisi of the University of North Carolina School of Law writes in "The Islamic Origins of the Common Law" article:

[T]he manner in which an act was qualified as morally good or bad in the spiritual domain of Islamic religion was quite different from the manner in which that same act was qualified as legally valid or invalid in the temporal domain of Islamic law. Islamic law was secular, not canonical... Thus, it was a system focused on ensuring that an individual received justice, not that one be a good person.[48]

Count Leon Ostroróg, a French jurist, wrote the following on classical Islamic law in 1927:

Those Eastern thinkers of the ninth century laid down, on the basis of their theology, the principle of the Rights of Man, in those very terms, comprehending the rights of individual liberty, and of inviolability of person and property; described the supreme power in Islam, or Califate, as based on a contract, implying conditions of capacity and performance, and subject to cancellation if the conditions under the contract were not fulfilled; elaborated a Law of War of which the humane, chivalrous prescriptions would have put to the blush certain belligerents in World War I; expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted.[49]

Some scholars have suggested that the idea of "a charter defining the duties of a sovereign toward his subjects, as well as subjects toward the sovereign", which led to the "genesis of European legal structures" and the development of the Magna Carta, may have been "brought back by Crusaders who were influenced by what they had learned in the Levant about the governing system" established by Saladin. It has also been suggested that "much of the West’s understanding of liberalism in law, economics and society has roots in medieval Islam."[50]

Another influence of Islamic law on European law was the presumption of innocence, which was introduced to Europe by King Louis IX of France soon after he returned from Palestine during the Crusades. Prior to this, European legal procedure consisted of either trial by combat or trial by ordeal. In contrast, Islamic law was based on the presumption of innocence from its beginning, as declared by the Caliph Umar in the 7th century.[51] Other freedoms and rights recognized in the Islamic legal system based on the Qur'an since the 7th century, but not recognized in the Western world until much later, include "the rights to know, to choose belief and behaviour, to read and write, the right to power, and even the right to choose government."[52]

Rule of law

Islamic jurists anticipated the concept of the rule of law, the equal subjection of all classes to the ordinary law of the land, where no person is above the law and where officials and private citizens are under a duty to obey the same law. A Qadi (Islamic judge) was also not allowed to discriminate on the grounds of religion, race, colour, kinship or prejudice. There were also a number of cases where Caliphs had to appear before judges as they prepared to take their verdict.[41] The following hadith established the principle of rule of law in relation to nepotism and accountability:[53]

Narrated ‘Aisha: The people of Quraish worried about the lady from Bani Makhzum who had committed theft. They asked, "Who will intercede for her with Allah's Apostle?" Some said, "No one dare to do so except Usama bin Zaid the beloved one to Allah's Apostle." When Usama spoke about that to Allah's Apostle Allah's Apostle said: "Do you try to intercede for somebody in a case connected with Allah’s Prescribed Punishments?" Then he got up and delivered a sermon saying, "What destroyed the nations preceding you, was that if a noble amongst them stole, they would forgive him, and if a poor person amongst them stole, they would inflict Allah's Legal punishment on him. By Allah, if Fatima, the daughter of Muhammad (my daughter) stole, I would cut off her hand."

Various Islamic lawyers do however place multiple conditions, and stipulations e.g. the poor cannot be penalised for stealing out of poverty, before executing such a law, making it very difficult to reach such a stage. It is well known during a time of drought in the Rashidun caliphate period, capital punishments were suspended until the effects of the drought passed.

According to Noah Feldman, a law professor at Harvard University, the legal scholars and jurists who once upheld the rule of law were replaced by a law governed by the state due to the codification of Sharia by the Ottoman Empire in the early 19th century:[47]

How the scholars lost their exalted status as keepers of the law is a complex story, but it can be summed up in the adage that partial reforms are sometimes worse than none at all. In the early 19th century, the Ottoman empire responded to military setbacks with an internal reform movement. The most important reform was the attempt to codify Shariah. This Westernizing process, foreign to the Islamic legal tradition, sought to transform Shariah from a body of doctrines and principles to be discovered by the human efforts of the scholars into a set of rules that could be looked up in a book.

Once the law existed in codified form, however, the law itself was able to replace the scholars as the source of authority. Codification took from the scholars their all-important claim to have the final say over the content of the law and transferred that power to the state.

Accountability of rulers

Sunni Islamic lawyers have commented on when it is permissible to disobey, impeach or remove rulers in the Caliphate. This is usually when the rulers are not meeting public responsibilities obliged upon them under Islam. Al-Mawardi said that if the rulers meet their Islamic responsibilities to the public, the people must obey their laws, but if they become either unjust or severely ineffective then the Caliph or ruler must be impeached via the Majlis ash-Shura. Similarly Al-Baghdadi believed that if the rulers do not uphold justice, the ummah via the majlis should give warning to them, and if unheeded then the Caliph can be impeached. Al-Juwayni argued that Islam is the goal of the ummah, so any ruler that deviates from this goal must be impeached. Al-Ghazali believed that oppression by a caliph is enough for impeachment. Rather than just relying on impeachment, Ibn Hajar al-Asqalani obliged rebellion upon the people if the caliph began to act with no regard for Islamic law. Ibn Hajar al-Asqalani said that to ignore such a situation is haraam, and those who cannot revolt inside the caliphate should launch a struggle from outside. Al-Asqalani used two ayahs from the Qur'an to justify this:

"...And they (the sinners on qiyama) will say, 'Our Lord! We obeyed our leaders and our chiefs, and they misled us from the right path. Our Lord! Give them (the leaders) double the punishment you give us and curse them with a very great curse'..."^[33:67–68]

Islamic lawyers commented that when the rulers refuse to step down via successful impeachment through the Majlis, becoming dictators through the support of a corrupt army, if the majority agree they have the option to launch a revolution against them. Many noted that this option is only exercised after factoring in the potential cost of life.[30]

Right of revolution

According to scholar Bernard Lewis, the Qur'an and Sunnah have several points to make on governance regarding the right of revolution in Islam:

The Quran, for example, makes it clear that there is a duty of obedience: "Obey God, obey the Prophet, obey those who hold authority over you." And this is elaborated in a number of sayings attributed to Muhammad. But there are also sayings that put strict limits on the duty of obedience. Two dicta attributed to the Prophet and universally accepted as authentic are indicative. One says, "there is no obedience in sin"; in other words, if the ruler orders something contrary to the divine law, not only is there no duty of obedience, but there is a duty of disobedience. This is more than the right of revolution that appears in Western political thought. It is a duty of revolution, or at least of disobedience and opposition to authority. The other pronouncement, "do not obey a creature against his creator," again clearly limits the authority of the ruler, whatever form of ruler that may be.[54]

The earliest known prohibition of illegal drugs occurred under Islamic law, which prohibited the use of Hashish, a preparation of cannabis, as a recreational drug. Classical jurists in medieval Islamic jurisprudence, however, accepted the use of the Hashish drug for medicinal and therapeutic purposes, and agreed that its "medical use, even if it leads to mental derangement, remains exempt" from punishment. In the 14th century, the Islamic scholar Az-Zarkashi spoke of "the permissibility of its use for medical purposes if it is established that it is beneficial."[57]

According to Mary Lynn Mathre, with "this legal distinction between the intoxicant and the medical uses of cannabis, medieval Muslim theologians were far ahead of present-day American law."[58]

The first documented description of a peer review process is found in the Ethics of the Physician by Ishaq ibn 'Ali al-Ruhawi (854–931) of al-Raha, Syria, where the notes of a practising Islamic physician were reviewed by peers and the physician could face a lawsuit from a maltreated patient if the reviews were negative.[59][60]

Islamic neuroethics and neurotheology hold a sympathetic attitude towards the mentally ill, as exemplified in Sura 4:5 of the Qur'an:[56]

Do not give your property which God assigned you to manage to the insane: but feed and cloth the insane with this property and tell splendid words to him.[61]

This Quranic verse summarized Islam's attitudes towards the mentally ill, who were considered unfit to manage property but must be treated humanely and be kept under care by a guardian, according to Islamic law.[56] This positive neuroethical understanding of mental health consequently led to the establishment of the first psychiatric hospitals in the medieval Islamic world from the 8th century,[62] and an early scientific understanding of neuroscience and psychology by medieval Muslim physicians and psychologists, who discovered that mental disorders are caused by dysfunctions in the brain.[63]

After Sultan al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:[65]

Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.[44]

Concern for the treatment of animals can be found in the Qur'an and in the teachings of the Islamic Prophet Muhammad, which inspired debates over animal rights by later medieval Muslim scholars. The 10th-century work, "Disputes Between Animals and Man", part of the Epistles of the Brethren of Purity, has been considered a classic in this regard. Inspired by the Qur'anic verse: "all the creatures that crawl on the earth and those that fly with their wings are communities like yourselves" (6:38), the Shafi'i jurist 'Izz al-Din Ibn 'Abd al-Salam al-Sulami (d. 1262) formulated the first full-fledged charter of the rights of livestock and animals in his legal treatise Rules for Judgement in the Cases of Living Beings (Qawa'id al-ahkam fi masalih al-anam) which was based on the stories and sayings of Muhammad.[74][75][76]

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