Principles Governing Public Policy and Law

by **samirisaoui** Sun Jan 05, 2014 2:54 am

(a) In Islamic law, God alone is the real owner of the earth and all that it contains. “People do not in fact own things, for the only real owner of things is their Creator, be He glorified and exalted. Indeed, people do not own anything but their usufruct ill in the manner permitted by the revealed Law.” All properties and resources are held in trust by human beings, to be used only in accordance with their divinely ordained purposes. Therefore, while the right to hold private property is rigorously safeguarded in Islamic law, there are important restrictions on its use.
(b) Accordingly, principles prohibiting the abuse of rights have been derived from the Prophetic declaration, “There shall be no damage and no infliction of damage.” A right shall be exercised only for the achievement of the ends for which that right it was created, and a person invalidates his right, if by exercising it he intends to cause damage to another; or if its exercise does not result in any benefit to him but results in damage, even unintentional, to another; or if in spite of bringing benefit to him, its exercise results in excessive damage to another, or in general damage to the community.
(c) The right to benefit from the essential environmental elements and resources, such as water, rangeland, fire and other sources of energy, forests, fish and wildlife, arable soil, air, and sunlight, is, in Islam, a right held in common by all members of society.
Such benefits may be direct, by way of harvesting or extracting the resource, or they may be indirect, by way of access to its products. Each individual is entitled to benefit from a common resource to the extent of his need, so long as he does not violate, infringe, or delay the equal rights of other members. In return for profiting from the resource, he is obliged to maintain its original value; If he causes its destruction, impairment, or degradation, he is held liable to the extent of repairing the damage, because he has violated the rights of every member of society.
(d) To the extent that a common resource is not sufficiently abundant for everyone to use it freely without impinging on others’ rights, the direct rights of usufruct are allocated according to considerations which include the following:
i) The degree of need; needs are to be distinguished from wants and precisely assessed both quantitatively and qualitatively;
ii) The impact on the resource.
iii) Investment in the resource by way of work and capital; and
iv) Priority of claim in time on the use of the resource.
Finally, rights of usufruct are linked to accountability for the proper use and maintenance or conservation of the resource.
This accords with the fundamental legal principle established by the Prophet Muhammad, upon him be blessings and peace, “The benefit of a thing is in return for the liability attaching to it,” and its converse, “Liability for a thing is an obligation accompanying the benefit thereof.”
(e) Islamic law stipulates the interference of the ruling authorities to secure the common welfare and to eliminate injuries to society. This is their original and primary duty. The limits of such interference are defined in Islamic public policy by the ultimate purposes of Islamic legislation as well as by the actual, lawful tasks and responsibilities assigned to them. The basic juristic rule in this connection is “The management of subjects’ affairs by the ruler shall be according to their welfare.” There is no doubt that a leader’s actions become illegitimate and unlawful if they are based on whim or autocracy with no consideration for the common good. The legitimate interference of the governing authorities is aimed at favoring the actual and essential common interests, and at the protection of those interests within the framework of balancing conflicting interests.
(f) In Islam all acts are evaluated in terms of their consequences as social goods and benefits (masalih) and social detriments and evils (mafasid). Muslim planners,
designers, and administrators must always aim at the universal common good of all created beings. This means that they must strive to harmonize and fulfill all interests. However, when it is impossible to satisfy all immediate interests, the universal common good requires evaluation and prioritization by weighing the welfare of the greatest number, the importance and urgency of the various interests involved, the certainty or probability of benefit or injury, and the ability of those affected to secure their interests without assistance.
The basic principle that has been articulated is thus:
“What is required is to safeguard all benefits and bring them to perfection, and to eliminate all detriments and minimize them. And if they prove irreconcilable, it is to safeguard the greater good by the exclusion of the lesser, and to remove the greater harm by acceptance of the lesser. This is the mandate of the Law. [1]
The interests of the Islamic nation and the society as a whole take priority over the interests of individuals and various groups when they cannot be reconciled.
Among the Juristic principles of Islamic law are:
“Priority is given to preserving the universal interest over particular interests,” and “The general welfare takes priority over individual welfare.”
From this basis is derived the principle that: “A private injury is accepted to avert a general injury to the public.”
Similarly, sacrificing private interest for the purpose of achieving and protecting the common interest of the public is related to the juristic principles that “The lesser of two evils shall be chosen,” “Severe damage shall be removed by means of, lighter damage,” and “If one of two opposing detriments is unavoidable, the more injurious is averted by the commission of the less injurious.”
Social goods or interests are to be assessed according to their importance and urgency. There are necessities (daruriyat) which are absolutely indispensable to preserve religion, life, posterity, reason, and property; then needs (hajiyat) which if unfulfilled will lead to real hardship and distress; and finally supplementary benefits (tahsiniyat) which involve the refinement and perfection of ethics and the enhancement of life. Preference and priority are given to fundamental necessities if these conflict with less acute needs or supplementary benefits. In the same way, preference and priority are given to the lesser needs if these conflict with supplementary benefits.
Interests differ in degree of actuality and certainty. There are actual or definitely known interests, and projected or probable interests. Priority is to be given to actual or known interests in case of conflict with projected or probable interests of similar importance.
Consideration is to be given to the abilities of various groups to secure their welfare without the government’s intervention. The governing authorities are obliged to protect and care for the disadvantaged and less influential groups in accordance with the juristic principles that “The averting of harm from the poor takes priority over the averting of harm from the wealthy, ” and “The welfare of the poor takes priority over the welfare of the wealthy. [2]
Some actions may help to achieve certain interests, but unavoidably bring about damage and destruction of similar or even greater magnitude. The juristic principle in this connection is, “The averting of harm takes precedence over the acquisition of benefits,” for indeed the first step towards the achievement and realization of the common good is to eliminate Such benefits may be direct, by way of harvesting or extracting the resource, or they may be indirect, by way of access to its products.
Each individual is entitled to benefit from a common resource to the extent of his need, so long as he does not violate, infringe, or delay the equal rights of other members. In return for profiting from the resource, he is obliged to maintain its original value; If he causes its destruction, impairment, or degradation, he is held liable to the extent of repairing the damage, because he has violated the rights of every member of society.
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