Law Morals And Religion

LAW MORALS AND RELIGION LAW MORALS AND RELIGION (This paper was read by Mr. Justice Muhammad Ilyas at a forum held at London on 20th March, 1995 which was attended by the senior Judges of Superior Courts of United Kingdom and Pakistan. The Pakistan delegation of which Mr. Justice Muhammad Ilyas was one of the members, was headed by the Chief Justice of Pakistan). By Mr. Justice Muhammad Ilyas, Judge, Supreme Court of Pakistan Law, morals and religion regulate human conduct. An ideal society is the one which obeys law, follows the principles of morality and complies with the requirements of religion. Although in various communities, provisions of law, standards of morality and injunctions of religions may appear to be different yet they have several common features of vital importance. Sources of law are generally the statutes, made by a ruler or a body having authority to legislate, customs and precedents; sources of morality are the norms of social behaviour, and sources of religion are Divine Revelations or teachings of a spiritual authority. Similarly, sanctions for enforcement or application of these may be different, like State machinery, social censure, ‑and reward and punishment in the world hereafter. Yet the object behind them is betterment of society and mankind. 2. As indicated just above, law, morals and religion are not one and the same system yet, more often than not, they proceed in one and the same direction. For instance, theft is a crime according to law, it offends against morality and is forbidden by all the well‑known religions. At page 99 of the celebrated book: "The Changing Law", Lord Denning says:‑‑ "In primitive societies, the influence of religion on law was obvious, but it is not so obvious in modern societies. In primitive communities religion, morals and law were indistinguishably mixed together. ......Although religion, law and morals can be separated, they are nevertheless still very much dependent on each other. Without religion there can be no morality and without morality there can be no law. I will try to show you how many of the fundamental principles of our law have been derived from the Christian religion: ... ..." Most of the jurists, from Bentham to Austin, are unanimous that, by and large, law and morals go hand in hand although in some situations they seem to take turn in opposite directions. 3. Some of the other illustrious authors who have spelt out relationship between law and morals are Professor Hart and Lord Devlon. Professor Hart has done so at page 199 of his book "The Concept of Law", Lord Devlon's opinion finds mention' in his book wfhe Enforcement of Morals" and Basil Mitchell's book on "Law, Morality and Religion". Their views have been analysed by Dr. Tanzil‑ur‑Rehman, a former Chief Justice of the Federal Shariat Court of Pakistan, in his article on "Law, Morality arid Society," published in the Journal Part of all Pakistan Legal Decisions PLD 1989, at page 95, as follows:‑‑ "As regards relationship between law, morality and society Professor Hart contends in his aforesaid book that Society may use the law to observe morality in the same way as it uses it to safeguard anything else that is essential to its existence. Lord Devlon in his book `The Enforcement of Morals' ... ...believes that there are certain universal values whose acceptance is necessary to the survival of any society. He observes that `to recognize morality is as necessary to society as, say, to recognize Government'. At page 36 of Basil Mitchells' book on `Law, Morality and Religion' ... ...Lord Devlon seems to be of the view that the `morality to law' is concerned with as the de facto positive morality of the society in question, since what matters is its cohesive power and not its acceptability on other grounds. In fact, according to him, it is the common morality which is enforced by law. What is, therefore, to be enforced by law, according to him, are the ideas already accepted by the society for which a Legislature is to legislate. To my mind, legitimising sodomy in recent years by the British Parliament furnishes one such example." 4. Here, I would like to say, with respect, that although the British Parliament has legitimized homosexualogy on the strength of "accepted morality" yet the Legislature of a Muslim country would not make any such law on the basis of "accepted morality." What is forbidden by Islam cannot be allowed by means of legislative process even if the public at large so desires. Since sodomy is despised by Islam, it cannot be permitted by the Legislature of any Muslim State. Islam besides being a religion is also a complete code of life. It not only deals with beliefs and rituals but also lays down rules of social behaviour, laws, etc. The Holy Qur'an itself declares certain acts as offences, and also prescribes. punishments therefor. A Muslim society is bound by provisions contained in the Holy Qur'an and, therefore, it would not allow any action which offends against its injunctions. This view has been endorsed by Reuben Levy, at page 192, of his book "The Social Structure of Islam", in the following words:‑‑ "Ethical doctrine in Islam is intimately connected with the law. In the official expositions of the faith, such as are contained in the books of `fiqh', no special distinction is made between rules regarding conduct and those which concern ritual or what other systems would regard as appertaining to the province of civil and criminal law. The moral teaching of Mohammedanism, therefore, is an integral part of a practical code designed to instruct the true believer concerning the path he must follow to win the approval of Allah and the reward of Paradise. Failure to obey the instructions of the fiqh, whatever their concern, is to incur the wrath of Allah and punishment of Hell. Such is the view of the doctors of Islam, based, as all fiqh is based, on the `roots' of jurisprudence." 6. Speaking of Pakistan, which is an Islamic Republic, it has been laid down in Article 227 of its Constitution (1973) that all "existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah" and that "no law shall be enacted which is repugnant to such Injunctions." The Holy Qur'an was revealed by Allah Almighty on the Holy Prophet (peace be upon him) and what the Holy Prophet said, did or tolerated (i.e. his sayings, doings and silent approval) is called Sunnah. The Holy Qur'an and Sunnah, put together, provide the basic structure of Islamic Law which is eternal in nature. 7. In the beginning of my talk, while dealing with law, I had said that sources of law are generally the statutes made by a ruler or by a body having authority to legislate, customs and precedents. There, I had deliberately used the word "generally" as I had in my mind the Holy Qur'an which contains provisions of law also. These are Divine provisions as distinguished from the provisions of law made by an individual or by a body of individuals. Therefore, as in Pakistan, in other Muslim countries also any law, custom or precedent which comes into conflict with the Holy Qur'an and Sunnah would not operate. 8. Just as in Muslim society the Injunctions of Islam can supersede the man‑made law, at times such an enacted law can be avoided on moral grounds also. One of the situations in point is where provisions of a statute are applied by reading into them the rule of natural justice. The norm of morality followed in this behalf is that no person should be condemned unheard. To illustrate my point, let me cite an example of an Act of Parliament in which it is enacted that a public servant may be dismissed by competent Authority whenever it deems fit; but, inadvertently or purposely, in the Act, no provision is made to the effect that reasonable hearing shall be given to the public servant before he is fired. Now, if a public servant is sacked without hearing him, the Courts would not countenance his dismissal and would strike down the action on the ground that reasonable opportunity had not been provided to the affected person to explain his position before relieving him of the job. 9. What emerges from the above discussion is that although law, morals and religion are often considered distinct from each other, yet in fact, they are intimately inter‑linked, if not interdependent. Any social set‑up which systemises its conduct by obeying law, observing moral values and practising the teachings of religion, deserves to be recognized as a civilised society. On the other hand, if a group of persons, disregards the said normative systems, it can hardly be termed as a society, muchless a civilised society.