26 December 2009
Law vs Ethic
I have some disagreement with one of my lecturers regarding to relationship between law and ethic, specifically on the question which one should be above the other, according to various perspective which I will later explain. I am feeling so much insulted when he accusing me of being very much influenced with the western ideology when dealing with the above topic especially when focusing on Islamic point of view. My controversial stand will be explained in the end of this post.
Many scholars have defined the word law. In simple term, law is what is enforced on the people by the authority. On the other hand, ethic is rather more complicated to be defined since ethic is something very subjective. It might be determined by numerous factors for instant religion, culture, locality and human’s mind. Each and every one of these has its own way of determining whether something is ethical or not. The dictionary that I referred to, defines "ethics as set of moral principles" and moral in the other hand "concerned with the principles of right and wrong behaviour and the goodness or badness of human character".
Scholars of natural law view the law and ethic as two areas which overlapping each other or in another sense, law is ethic and ethic is law. Socrates and Plato argued that there were principles of morality, which it was possible to discover through the processes of reasoning and insight. Law based on these principles would thus be the product of correct reasoning. The natural Law school of thought came out with the theory that where law fails to accord with moral principles either such rules are not properly classed as law or that the people is not morally bound to obey such law. Here there is no dispute regarding to which one above the other since these two are viewed as one.
In analytical positivism perspective, law is separated from ethic except if there is overlapping in both of it, it just the matter of law is used to enforce ethic. It is due to the reason that law which has been set sometimes did not necessarily based on the concept of good or bad, but on the power to legislate because someone may have just legislate the law to show that he has the power to do so. In fact, the law is backed by a threat of evil (punishment) which to be imposed if the directive is not complied with which actually oppose to ethic (imposing threat and evil on other).
Pragmatic Positivism @ Realism view law and ethic as two different areas but somehow in certain point overlapping each other. Ethics or morality is connected with the law in many ways especially base on the moral ideas of blame, wrong or fault. Certain thing might be at the same time ethical and legal when at the same time there are also things which are ethical but not regarded as law (since it is not enforced) and there are few things which are unethical but still legal.
Basically, so far it is very clear that in answering the question which one is above the other definitely the answer will be it is the law which has a higher position compared to ethic since it is enforced and punishment will be past if one disobeys the law.
Now we have come to the point of dispute which is from the Islamic point of view which one is above the other? Islam could be defined as ‘comprehensive codes of conduct’ which in another sense we can say that Islam is basically ethic. However, Islam at the same time is law since it is enforced either by the government or by the god Himself. Comparatively from what we had discussed, the enforcement of the Shariah(Islamic law) is on two phases, worldly and metaphysically. Person who has conducted his life unethically might be left without judgement in this worldly life since the court might not have jurisdiction to pass judgement on that matters but he must remember that he will never be left freely in the hereafter. If we are to view the concept of ethic within Islam itself we will surely say that the question aforementioned is not relevant since the answer would be the same as when we discuss from the Natural Law point of view. My lecturer insisted on this view.
I do not disagree with him. However, I do have another approach which he did not agree. Since we had discussed the previous perspectives in general scope, nevertheless we have to do the same when discussing Islamic point of view in this matter. If we are to make the relationship between Shariah and ethic, the area of ethic will be wider while the Shariah will pe part of it. This is due to the reason that, Shariah is ethical code while ethic does not necessarily being part of the Shariah. A society may perceive something as ethical but Islam does not put enforcement on it. This usually happens when ethics is determined through culture, custom, locality and human’s mind.
Hence, in order to archive the solution, I would rather say from the perspective of the generating a beautiful life in the society, ethics will be in a position above the Shariah which means local ethical code must also be observed together with Shariah but in terms of enforcement, definitely the Shariah will be above the ethics. Perhaps some unreasonable man would feel upset or angry with me for lowering the position of Shariah below the general ethics while the Prophet himself had testified that Shariah is in the highest position and nothing shall be above it. The justification would be it is not my intention to disgrace the Shariah but I am saying this way because people especially the conservatives and orthodox are not satisfied with only observation to the universal ethic (Islam) and demand that local ethic must also be abide without any disrespect to the Shariah.