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The Connection between Freedom, State and Laws
By: Ayatullah Professor Muhammad Taqi Misbah Yazdi
In the previous discussions we have said that just as the law must be enacted either by God Himself or by His leave and permission, the implementer of law must be determined either by God Himself or by His leave and permission. In any case, the government system—constituted by the executive, legislative and judicial powers—must be anchored in divine permission otherwise it will not be legitimate from the religious point of view.
Elsewhere in the previous discussions, whether in the field of legislation or execution of laws, we refuted certain skeptical objections. One of them is that if we believe that the implementer of laws must be determined either by God Himself or by His permission, we actually deprive the people of what God has ordered and determined, i.e., their legal right of electing a ruler from among themselves. This is inconsistent with the spirit of democracy and populism.
At the outset, I shall deal with freedom and then embark on explaining the manner of establishing the Islamic government and implementing Islamic laws.
Examining intrinsic freedom and negating the theory of predetermination
While discussing freedom we come across the term “intrinsic freedom” [al-huriyyah al-takwiniyyah] in contradistinction to predetermination [jabr]. Since time immemorial, thinkers in the world have a difference of opinion on whether man is autonomous or compelled. A group argues that man is under compulsion and has no free will in this life and to imagine that he performs an action using his own discretion is nothing but an illusion. In reality, he is compelled and the actions he apparently does are out of compulsion and pressure; otherwise, he himself would never perform such actions.
The theory of predetermination has exponents throughout history. Some Muslim scholars incline towards this theory. Among the Islamic schools of thought, Asha‘irah (Ash‘arism), which is among the scholastic schools of the Ahl as-Sunnah, upholds the theory of predetermination.[50] However, it is not as extreme and passionate. According to our view and that of the majority of Muslims, this belief is rejected in the domain of (personal) opinion and outlook as well as in the domain of action and deed. If mere predetermination rules over man, there is no point in having moral and educational systems or the Day of Ressurection.
In the domain of ethics and education, if man is compelled to do a good or bad action, he must not be praised, lauded and rewarded for the good deed nor punished and reprimanded for an evil deed. If the child is compelled to act in a certain way, there is no point in training an already programmed robot, and all educational systems must be abandoned. Only if man is autonomous to perform or abandon a certain action is it worthwhile to admonish him to perform or abandon a certain act.
This freedom and freewill in which we do believe is creational or ontological [takwini], opposed by predetermination [jabr]. It is endowed by God to man, is among the peculiarities of man and the criterion of his superiority over all creatures. Among the creatures that we know, it is only man that has the power to choose and select, notwithstanding his diverse, and at times, contradictory inclinations. In responding to the call of his desires—whether they are bestial desires, or divine and sublime aspirations—he is totally free and autonomous.
Undoubtedly, God the Exalted, has bestowed this divine blessing on man so that he can select the right path or the wrong path freely. All the advantages that man has over other creatures including the angels are under the auspices of having the power to choose and select. If he makes use of this power correctly and chooses divine wishes instead of bestial desires, he will reach an exalted station where the angels will feel humble before him.
Man’s possession of this freedom is creational. Nowadays, nobody denies it nor regards himself as totally under compulsion, having no freewill of his own. The Qur’an emphasizes this:
 æóÞõáö ÇáúÍóÞøõ ãöä ÑøóÈóßõãú Ýóãóä ÔóÇÁó ÝóáúíõÄúãöä æóãóä ÔóÇÁ ÝóáúíóßúÝõÑú... 
“And say, ‘[This is] the truth from your Lord: let anyone who wishes believe it, and let anyone who wishes disbelieve it’...”[51]
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“Indeed We have guided him to the way, be he grateful or ungrateful.”[52]
Hundreds of verses, nay it can be said, the entire Qur’an highlights the autonomy of man because the Qur’an is meant for the guidance of man. If man was under compulsion, and his being guided or misguided was predestined, there would be no place for guidance by choice and the Qur’an would become useless and futile. Our subject of discussion is not intrinsic freedom. No one has any doubt about it and the proper place to discuss it is in philosophy and scholastic theology [kalam], not law and politics.
No contradiction between the internally value-oriented system and freedom
A subject that must be tackled here is that every man has an inner power that determines the limit and conditions of his behavior and actions. Technically, every man has a set of values. As such, every rational man believes in certain do’s and don’ts in his life, believing that he must do certain actions and refrain from doing others. We do not know of any person in the world who has no set of do’s and don’ts and who does not consider actions as good or bad.
The power that comprehends the do’s and don’ts and has rational and moral admonitions is called the practical intellect [‘aql-e ‘amali] or conscience [wijdan]—possessed by all human beings since creation and has a set of seemingly uniform do’s and don’ts or admonitions for all human beings. The practical intellect or conscience of every person understands that justice, trust and honesty are good and advises him to observe them. The intellect or conscience of every person regards injustice and oppression as bad and obscene and orders him not to oppress anyone, especially a weak person who is not capable of defending himself. The intellect or conscience of every person considers lying and treachery as evil and urges him to shun them.
Thus, every person has an internal power that lays the foundation of a set of values on the basis of which all human beings consider a group of actions as good and another group as bad. Undoubtedly, in presenting this set of values and identifying this sort of do’s and don’ts, the intellect or inner power of human beings is independent and is in no need of any external factor. It is this discernment that issues recommendations and orders.
The fact that our intellect discerns what actions are good or bad points us to a set of obligations which restrict our intrinsic freedom. That is, the intellect or conscience commands us not to enjoy our liberty or freedom thoughtlessly. We may oppress others but the intellect tells us, “Don’t oppress; be kind.” We may tell a lie but the intellect commands us to be honest and not to lie. The intellect tells us: “It is true that ontologically or intrinsically you can betray a trust but do not do so.” Thus, the practical intellect or conscience is a human feature and an inner factor that limits man’s liberty. One who does not have such a force to filter his actions, do’s and don’ts, has no sound intellect and is called “insane”.
Since the do’s and don’ts, or moral obligations and restrictions issued by the conscience or practical intellect are rooted in man and his intellect or conscience, it can be regarded as being contrary to freedom. Nobody has ever said that by imposing limitations with these do’s and don’ts, the intellect or conscience has deprived man of freedom. In reality, by following the dictates of his intellect, which is an inner force and not imposed on him from outside, man restricts his own liberty.
These limits on liberty laid down by the dictates of the conscience or practical intellect are like the prescription of a doctor to his patient, saying: “Don’t eat so-and-so food because it will harm you and take so-and-so medicine to recover.” Instead of being annoyed, the patient gladly regards the doctor’s prescription as an instruction or guideline for actions that lead to his recovery. In fact, even here we exercise our freedom and freewill, and our intrinsic freedom is not repressed. According to some moral schools of thought, the intellect only shows the way to us and guides and leads us to an action which has a wholesome outcome, but does not compel.
Even if we believe that our intellect or conscience compels and issues a command or decree which if disregarded will cause agony. The expressions “conscience pricks” or “guilty conscience” are common in our literature. When a person follows the dictates of his conscience, it is not said that he has been deprived of freedom. This is because the intellect or conscience is possessed by man himself. As an inner factor or force, it supervises and judges his actions, commanding him to perform certain actions and prohibiting him from others. So, when an internal factor commands us, our freedom is not curtailed, and if we act upon the dictates of our intellect or conscience, it means that we follow our desire and freewill. Our freedom is curtailed only when an external factor bids or forbids us.
The connection between religious, obligations and freedom
The next question that arises here is: Do religious ordinances—do’s and don’ts—ordained by God curtail the freedom of man? For example, one does not want to wake up early in the morning and pray, but God commands him to rise up and pray. Similarly, other ordinances mentioned in the sacred religion either command the performance of an action—like fasting, paying zakat and khums and other obligations—or forbid unlawful acts like the drinking of alcohol.
The reply is that these commandments—dos and don’ts—are like commandments and prohibitions of the intellect or conscience, and do not curtail the freedom of man if they have no executive backing. For example, religion commands me to pray but if I refuse to pray, it shall not do anything to me. It shall not punish or penalize me. Similarly, for my refusal to obey the commandment of God, society will not show any hostile reaction or reproach me.
So long as religious commandments and prohibitions are “recommendatory” in nature, my freedom is not curtailed because these enjoinments do not have any external executive guarantee, and no external element pressurizes me to do or not do a thing. However, just as we have the conscience or “attached” [muttasil] intellect that enjoins us the do’s and forbids the don’ts but has no external force exacting obedience, there is also a “detached” [munfasil] intellect outside of us that bids and forbids, namely, God, who like a Universal Intellect issues commandments and prohibitions. They are only recommendatory and instructive in nature.
The truth of the matter is that the religious commandments and prohibitions also exact obedience and are not contented with mere admonition. In fact, when God commands us to pray, He warns us of chastisement in hell if we do not pray. He has even set punishments in this world for certain abominable acts. In fact, God has even sent down heavenly chastisement on communities of some previous prophets (‘a). Each apostle is sent to frighten his own people of divine chastisement by saying: “If you disobey the commandments of God, divine wrath may possibly descend upon you in this very world.”
The Qur’an repeatedly reminds Muslims of the fate of past communities [aqwam] who, on account of their disobedience and indulgence in sins, experienced God’s wrath, and warns the Muslims of the same wrath that they may incur in this world or in the hereafter. The apostles were so persistent and unrelenting in warning and frightening the people of divine wrath that one of the well-known titles of all apostles is “warner” [nadhir or mundhir]:
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“Indeed We have sent you with the truth as a bearer of good news and as a warner; and there is not a nation but a warner has passed in it.”[53]
Religious commandments and prohibitions that have been issued with warnings, creating fear of divine wrath in this world and the hereafter, are different from the moral and rational commandments and prohibitions issued by the practical intellect or conscience. The former limits the freedom of man and puts him under pressure.
Now, if we accept that human beings are absolutely free, and according to the Universal Declaration of Human Rights (1948)—which to some intellectuals is like a revealed and holy scripture—no one has the right to limit man’s liberty, has God also no right to limit our liberty?, Can God instruct and admonish man to perform his obligations, i.e. admonish him for refusing to pray, i.e. exercise his freedom?! If yes, why does God exert pressure on us, saying, “If you do evil you shall be thrown into hell in the hereafter”, and frequently frighten us of His wrath just as one of the duties and missions of the apostles (‘a) was to frighten and scare the people of divine wrath?
There is no dispute among Muslims and they wholeheartedly accept that God may issue orders and commandments and set an executive guarantee for them and that the mission of the apostles (‘a) was to convey the commandments and prohibitions of God and warn of divine wrath. They abide by the commandments of God although they know that those commandments set limits upon them, deprive them of some of their liberty, and exert a sort of pressure on them, because when God commands us to perform an act and make disobedience punishable, we are actually subject to pressure. For Muslims there is no doubt that God can order us to do or shun an act.
But the reason and wisdom behind His issuance of commandments and prohibitions and expecting us to abide by them, must be sought in scholastic theology [‘ilm al-kalam], for we shall deal with them only briefly.
Out of His infinite grace, mercy and favor, God wants human beings to attain felicity and show to them the way to salvation. Along this line, He has set certain duties and commandments so that we can identify the true path of salvation by consciously following them. Naturally, these warnings and threats prompt us to pay serious attention lest we deviate from the way leading to felicity. Were it not because of compulsion, we would have lagged behind because of our improper conduct and indulgence in sins and wrongdoings. So, out of His grace, God wants us to keep away from abominations and indecencies by fulfilling our religious duties, and attain His infinite and eternal mercy.
Therefore, the fact is that the religion sets limits on man’s liberty. The apostles (‘a) were also obliged to warn people and frighten them of divine wrath and chastisement for disobeying religious ordinances. Thus, both psychological and physical pressures were exerted upon the people. Physical pressure is exerted upon a person by punishing him for committing certain crimes and offenses. Psychological pressure is exerted upon those who witness the punishment meted out to offenders and criminals and are thus afraid of those punishments. It is also exerted upon those who are frightened of divine chastisement in the hereafter.
Now, let us ask those who support absolute freedom: Do you condemn these physical and psychological pressures, threats and punishments? In other words, do you say that God should not limit and pressurize the people and that He should not have sent apostles to frighten people of punishments in this world and the hereafter? Is condemning this not tantamount to the denial of Islam and all religions with divine origins? Whether we have the right to deny religion and its essentials is another subject.
Are the pressures and limitations set by God on His servants—for example, His threat of throwing them into hellfire for their sins or His order to punish some offenders right here in this world—condemnable according to him who says that man is absolutely free and that no limit or pressure should be set upon him? In this case, he has actually denied religion, the mission of the apostles (‘a) and the divine laws, and at this moment, we are not dealing with such people. Our present concern is with those who accept the essence of religion, regarding Islam as the religion of truth, and believe that out of His mercy and grace God has sent the Apostle (s) for our guidance, and thus they are grateful to Him.
The connection of hudud and ta‘zirat with freedom
God has the right but He warns and threatens us of the chastisement in the hellfire to make us tread the right and straight path and keep away from abominations out of His benevolence, grace, favor, and mercy. However, it is necessary to ask this question: Why has God the Exalted, ordered divine punishments to be implemented with respect to some criminals in this world and essentially, why has He ordained hudud and ta‘zirat? We accept that God has to warn us of the chastisement in hellfire because this warning or threat of the otherworldly punishment is for our benefit and prompts us to take a step along the path of salvation and bliss because of fear.
This warning is a sort of enlightenment and God informs us of a chastisement which is not conventional and superficial but the outcome and manifestation of our evil deeds in this world. But why has He ordered one who commits a specific offense like adultery [zina] to be punished and embarrassed in front of people?
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“As for the fornicatress and the fornicator, strike each of them a hundred lashes, and let not pity for them overcome you in Allah’s law, if you believe in Allah and the Last Day, and let their punishment be witnessed by a group of the faithful.”[54]
This question is concerned not only with religious but also with penal laws. All states and political systems in the world have legal and penal laws. Legal laws are concerned with those who violate the rights of others, for example, those who take away someone else’s property, physically harm or kill someone. In this case, if there is a personal plaintiff he files a case against the violator or criminal who is fined or penalized.
If the convicted has usurped the right of a person it shall be taken from him, if he has committed a crime he shall be executed or punished accordingly. But regarding all penal laws, a personal plaintiff is not necessary for the conviction and punishment of the criminal. The prosecutor or attorney-general can file a case against one who acted against the laws and interests of the country and he shall be punished if found guilty.
As far as I know, there is no political system that does not have legal and penal laws and in which the criminals are not fined or punished. In fact, the criminal is fined, imprisoned or punished in the form he deserves. Islam is not an exception to this rule. It has legal and penal laws and has heavy punishments for certain crimes.
So, the answer to the question on whether sociopolitical systems have the right to determine punishments for some violations or not, whether this policy is consistent with the freedom of man or not, is that in practice, all people give the right to social systems and states to have legal and penal laws and enact and exact certain punishments for criminals. We do not know of any nation that does not have legal and penal laws, fines, prisons, and punishments for criminals, nor does anyone protest against these measures. Of course, in theoretical debates this question can be asked: Can a person be punished in this world and be deprived of his liberty?
The existence of state and laws negates absolute freedom
If those who say that no state has the right to set penalties and impose limitations on people throw all legal systems in the world into question and must be answered. If their objection or question is concerned with Islam only, then they must be answered in a different manner. Nevertheless, since at the outset the question is generally addressed to all legal and penal systems, all political systems including Islam, I shall offer a general and comprehensive reply.
The abovementioned objection is anchored in the principle of absolute freedom. Some people imagine that in this world man must be totally free and no limit and pressure should be imposed upon him. No one should compel or prevent him to do a certain action. This principle is illogical, wrong and unacceptable. No man has absolute, limitless and unrestricted freedom to do whatever he likes and no law restrain him. (Here, what we mean by law is not the moral and rationally independent laws, which have no guarantor of their execution. Rather, it refers to the legal laws in their general sense, whose execution is guaranteed and backed up by the government.)
There must be laws and regulations, and the people must be urged to observe them. If a person violates them, he must be dealt with accordingly. If a person usurps the rights of people, he must be urged to grant them their rights. There must be traffic and driving rules, and the violators who sometimes are responsible for the deaths of many people, must be penalized and fined.
The existence of laws and regulations and their acceptance by all people everywhere throughout history bears witness to the fact that absolute freedom—no right to exert pressure on others, impose limits on them and deny some of their freedom—is unacceptable and wrong. Acceptance of the principle of absolute freedom means denial of civility and acceptance of savagery and law of the jungle. If man is really a civil creature, he must have a social system. Individuals must respect the rights of others. There must be laws and regulations. Penal laws must be taken into consideration for violators. The government must guarantee the execution of laws.
In reality, the notion of absolute freedom and the claim that no one is supposed to exert pressure on people to do or not to do a certain act, is a denial of the necessity of the existence of government. The government, ruling system and executive power should cease to exist because they originate in the context of social laws and regulations and their duty is to guarantee and implement them. Such an idea and thinking is inconsistent with civil society, civilization, and the need to observe laws. The foundation of human civilization is the acceptance of responsibility and the acknowledgment of a power whose concern is to implement laws in society, and along its performance of responsibility, the government will certainly exert pressure on the people.
The government’s duty is that in case of necessity it has to urge the lawbreakers to abide by regulations and, by exerting pressure and force, penalize the violators. If mere reminders and admonitions suffice, then it is enough for the government to act as teacher and instructor, and not a ruling authority. The duty of the preachers, teachers and trainers is only to admonish and remind the people to observe social morality and human etiquette. They have no executive leverage for following their admonitions and reminders, and it is essentially not their duty to force people to observe human dignity.
But it is the government’s duty to impose law on the people even by force and threat and deal with the violators accordingly. It has to fine violators, and in case they try to escape from the ambit of law, pursue and apprehend them. Therefore, the existence of government and executive power is because man does not possess absolute freedom. Absolute freedom disagrees with civilization, humanity and social life. It makes no difference whether the government is the executor of civil laws, based on the demands of people, or the government is the executor of divine laws.
The exigency of linking sovereignty with Allah
The people are servants and subjects of God and to exercise authority over them is the sole right of God. In accordance with His legislative Lordship [rububiyyat-e tashri‘i] and divine sovereignty, without His permission and approval no one has the right to exert pressure upon His subjects and exercise authority over them. In order for the government to be able to exert pressure upon people, it must have the permission of their Master.
But those who believe in popular democracy consider civil laws as sufficient to administer society and government as the implementing agent of the said laws saying there is no need for the law enforcer to have the permission of God. The fact that people voted for him gives him the right to implement laws and in case of necessity, also use brute force and exert pressure upon the people.
The pressure or compulsion thus exerted upon people in the enforcement of laws is not inconsistent with freedom because the people themselves have accepted the said system and its laws. This is in keeping with the dictates of their consciences to do something which we agree is not inconsistent with the freedom of man and does not deprive him of it because the said order or dictate stems from an inner force and themselves. It belongs to them and it has not been imposed on them.
Of course, there are many objections to the structure of democratic systems, their functions and prerogatives, and the justification for their legitimacy and rightfulness that have been mentioned in books on political and legal philosophy. One of the objections worth mentioning is this: we do not know of any country in the world in which the people have unanimously accepted a law or unanimously elected a person or government to implement the laws. Even here, in the Islamic Republic, which is undoubtedly a unique country in the world, 98.2% of the people voted for the Islamic republican system and 1.8% did not vote for the Islamic Republic, which is equivalent to more than one million people.
Based on the populist and democratic systems prevailing in the world, when one million people do not vote for the political system, what right does the government have to force them to abide by laws and ordinances? When some individuals explicitly say that they do not accept the political system, how can the government or political system, merely on account of a majority vote, have the right and legitimacy to implement, act upon and impose the laws even upon those who oppose the political system?
The populist systems in the world and the proponents of the theory of democracy have replied to such questions. They have argued, for instance, that in a system founded on majority will, the minority who have not voted for the system have rights which must be respected. In the domain of their private actions they may act and behave as they like. We argue that this explanation is not enough. On what basis should public laws and social ordinances related to the entire system be imposed upon them? On what basis should they have to pay taxes, custom fees and others? Some of them reason out that at any rate, society must be administered in a certain way, and for this purpose we do not know of any system better than democracy or a populist government.
According to Islam, however, the reply to the abovementioned question is that the right of legislation belongs to God. Accordingly, those who are designated by Him can enact law within the framework of laws and ordinances set by Him. Similarly, one who has the right to implement laws and rule over the people is he who is directly or indirectly designated by God. In this case, as vicegerent of God and one who has been chosen by the Lord of the universe to rule over people, he has the right to enforce laws even, if needed, by using brute force. He can urge the minority opposing the system to observe the ordinances and impose the laws upon them.
This theory is logical and acceptable to anyone who believes in God and His religion and is immune from rational problems that populist systems have. Of course, one who does not believe in God and His religion rejects divine sovereignty and in no way accepts it. But for people who are Muslims and believers of God, divine sovereignty is the ideal, harmonious with the conscience and intellect. As such, the paradox or inconsistency in the theory of democracy or populist systems, that renders them false, does not exist in the theory of Islamic government which has perfect internal coherence.
If we compare the Islamic system with the prevalent democratic and populist systems which are based solely on the people’s vote, we will find out that the Islamic system, which is rooted in the permission of God, has divine origin and the support of the people, has multifaceted credibility because we do not deny the will of the people. Many institutions and offices in the Islamic Republic of Iran are formed by the vote of the people, for example, the elections for the president, Majlis deputies, members of the Assembly of Experts, and members of the Islamic councils of cities and towns.
For this reason, we contend that our system is more firm and formidable compared to the democratic and populist systems that are solely based on the will of the people as it stems from the approval of God and is supported by the people. We can confront the theoreticians of the populist system and tell them that we also uphold and respect the vote and will of people. Moreover, from the logical and rational point of view, the theory of Islamic government is superior to the theory of the populist system. As we have said, the democratic system does not possess internal cohesion as well as a logical and rationally correct justification, and it is marred by contradictions. The theory of wilayah al-faqih, on the other hand, is logical and rationally firm and tenable. No contradiction exists in it.
Some pseudo-intellectuals ask why God, by means of commissioning the apostles, revealing the Book and other holy scriptures, and enacting penal laws like hudud and ta‘zirat, amputation of hand, fine and other penalties, deprives people of freedom, prohibiting them from doing whatever they like by exerting pressure on them, whereas the essence of humanity demands that man must be totally free, freedom being one of the key features of mankind. We reply that absolute freedom is inconsistent with the essence of humanity and man’s civility and sociability. As man is supposed to lead a social life, social life demands that, binding laws and ordinances be enacted in order to regulate the actions of people and an institution called “state” present to guarantee the implementation of laws.
To conclude, this justification has been accepted by all political systems in the world, including Islam. Throughout history, all people have believed in it and been bound by it. No protest has ever been made against it. Yet, as we have said, the democratic and populist systems do not have sufficient logical justification for the exigency of government, the implementation of laws and ordinances, and sometimes the exertion of pressure on people. Their theory on government does not have internal coherence and is marred by contradictions.
The Islamic system, meanwhile, has a convincing justification because we also follow the principles of populist systems believing in the important role of the will of people and many of our government institutions are formed based on the vote of the people. Moreover, the Islamic system has a rational and logical justification based on demonstrative principles; for example, sovereignty belongs to God. Since the people are servants and subjects of God, essentially, He has the right to exercise authority and sovereignty over His servants and subjects.
The sovereignty of others is proper and rightful only when it is anchored in God’s will and permission. That is, individuals can rule over His servants only by His leave and approval. The governments that do not emanate from God and are not based on the authority of the Lord of the universe are illegitimate and contrary to truth and rational principles.
Notes:
[50] For information on Asha‘irah and other scholastic schools in Islam, see Murtada Mutahhari, “An Introduction to ‘Ilm al-Kalam,” trans. ‘Ali Quli Qara’i, At-Tawhid Journal vol. 2, no. 2 (Rabi‘ ath-Thani 1405 AH-January 1985), available online at http://www.al-islam.org/at-tawhid/kalam.htm. [Trans.]
[51] Surah al-Kahf 18:29.
[52] Surah al-Insan (or, ad-Dahr) 76:3.
[53] Surah Fatir (or al-Mala’ikah) 35:24.
[54] Surah an-Nur 24:2.
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