Law, like ethics and morality is meant to regulate human behaviour. When it is believed to have been revealed by a Divine source, it has unlimited and immutable sanction. When it is formulated by man in society, administration or government, it has limited sanction in time and space and it may be altered under certain conditions which have their own legal and practical limitations as in the case of the Roman law which applies to us.
When science aspired to usurp the omnipresence and omnipotence of Allah by claims of universality, amended by exemptions and omissions for each failure of its ‘laws’ until the ‘law’ was replaced by another after several surmises and theories, the custodians of social knowledge felt the need to emulate the scientific divinity. Consequently social scientists began to promulgate laws for the humanities, and jurists began to believe that a single set of laws developed by the ‘superior species’, which had won the race of the survival of the fittest should apply to all societies and therefore such laws should be adopted in all states and by all governments in this day and age, as amended by the ‘fittest’ from time to time.
The unreasonable author of this piece is not quite sure that this is true.
Things that drive Human beings to action are: Greed, power, dominance, wealth, luxury, meanness, kindness, the feeling of being good, piety, self-righteousness, fear, anger, lust, desire, pity, hate, love and a sense of achievement; to list some of those that seem to have been the most used in history. However these drivers do not always relate to the same material, physical, intellectual or emotional forms at all times and in all societies because the ethical and moral parameters of society and humanity keep changing.
The criterion of gender equity that exists today is different from that of the Muslim value system. Similarly the roster of human rights and of corporate social responsibility and the criteria of governance that is acceptable today is considerably different from what was in use in Muslim states and was believed to be prescribed by Islam. Although the modern consciousness of ecology and environment management have their roots in the practices of Jainism and of a somewhat later Muslim sense of habitat, the variety of pollutants and effluents or solid waste that challenge us today need to be managed with a great deal of artificial waste disposal for non-biodegradable matter, with no historic precedence.
On the other side of life is the human limitation that one can only perform a single action at a time; although the effects of each action are many. Similarly the human motives have all to be attained within a limited number of actions possible within a lifetime. Thoughts and ideas that drive the mind and body to order matter and effort are numerous. We may conclude from limitations of time and space [as they apply to matter and action] that each action is linked to many ideas, causes and motives of the past. It has historical links with many other actions as one in a sequence and also with many events that are to succeed it. Like an individual with parents and progeny, for preceding and succeeding generations. Thus the single act must fulfill the aspirations of the many in each context.
Nature has created humanity in a complex mold of organization and disarray; good and evil; wisdom and folly; logic and emotion; and placed the entire construct in a framework of fate which is studded with gaps that are to be filled by human effort on an individual or collective scale. Human aspirations fill the gaps between a nature that has been endowed to humans, an immutable, ordained fate. Law is the medium which must balance them in an individual’s social life. It isn’t divorced from evolution of social context and cultural identity of a society. As continuous process this is even recognized by Roman Law. When the intellectuals in the Pakistani bureaucracy realized that they had not inherited all the privileges of the colonial bureaucracy and they could not continue to treat citizens in the same manner as the British, they looked for alternate “modern” systems. Similarly the educationists and politicians, even the military and fiscal managers looked for alternative ways of bridging the gap between modernism and our traditional/cultural practices. It was only in the judiciary that the impasse seemed so severe that a parallel system was created to accommodate the imperatives of religion. All other cultural legal or judicial procedures were sidelined and have subsequently been discredited by civil society. Thus Panchayats, the Jirga and other local judicial institutions have gradually been set aside.