Islamic Jurisprudence

A Judge Of France, Symbol Of The Law

I have been reading about Islamic Jurisprudence, and today I began to read Surah 5, The Table Spread, with reference to the views of Abdul Qadir Awdah, who writes in Islam: Between Ignorant Followers and Incapable Scholars :

[...]

God has sent this jurisprudence, complete and comprehensive, as it is, in a short period of time, starting from the first day of the Prophet's mission, and ending on the day of his death, or on the day when the following verse was revealed:
 
"Today I have perfected your system of belief and bestowed My favors upon you in full, and have chosen submission (al-Islam) as the creed for you".
(The Holy Quran, Chapter 5. "The Table Spread", verses 3)
 
This verse is the authoritative pronouncement relative to the perfection and permanence of the jurisprudence, especially since another verse has expressly stipulated that Muhammad (pbuh) is the last Prophet:
 
"Muhammad is not the father of any man among you, but a messenger of God, and the seal of the prophets".
(The Holy Quran, Chapter 33. "The Clans, The Coalition", verse 40) ...

First, the translation of "system of belief" is the word "Deen", which is the ordinary word for "religion". The only warranted translation is "Today I have perfected your Belief...", or "Today I have perfected your Religion..."
The implication that the "Deen" is a "system"made up of many individual parts which may be cut out of the body of scripture and autopsied is a gross error in my opinion, notwithstanding the fact that most people - European and Islamic - have such a view.

There is no separating out small truths from the larger Truth, for just as Muhammad be not the father, but the messenger of the message and the seal, so also is the Quran a message which does not give birth to new messages.

When we come to:

"As for the thief, whether man or woman, cut his hand".
(The Holy Quran, Chapter 5. "The Table Spread", verse 38)

and we interpret this as a solitary and full-standing injunction to punishment, we have allowed a system of belief to be born anew, establishing a new entity called Law, about which future scholars may argue.

No part of holy scripture may be considered apart from the entirety of the scripture, for on its own, it calls forth new and different meanings from the souls and minds of those who look upon it, effectively setting up a new system of belief of changeable parts derived from the original scripture.

Everything within a scripture must be lived and be breath before we speak on it. Therefore, the spirit of forgiveness and tolerance will inform the shape of the spirits of punishment, and there is no enrichment of punishment over charity, nor is there a magnification of tolerance over rectitude. The quote:

“Far better that I should err 1000 times in forgiving than once in the application of a sanction"-Umar ibn Abdul Aziz

is not a hypertrophy of charity, but a desire not to apply a sanction in error, which is far more acceptable to a community than a desire to err 1000 times in harsh punishment than once in forgiveness, which would be despotism.

Once the seal is set, that which is given us is whole and unbroken, no matter how hard we try to winnow the words of the Holy into small and separate kernels of wheat for our daily bread. How this view affects the desire of people to have their systems of Jurisprudence, which indeed are heaps of laws and interpretations, is not my concern.

(I have expressed similar views about those who slice and dice the Bible, particularly parts of Leviticus and Deuteronomy, taking the parts choicest for their "system of individual beliefs" and leaving the rest.)

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Super-Individuals

Tom has a post on the Trans-Pacific Partnership (TPP):
http://whatpowderfingersaid.blogspot.com/2014/04/more-on-tpp.html

Bottom line is plain to see. Another gigantic boondoggle for rapacious, out-of-control capitalism, which, as is becoming increasingly apparent, will be the death of us all.

Corporations are becoming too mighty, indeed, for they take on the characteristics of individuals, but do so on a scale that beggars our individual imaginations.

Looking into Wikipedia:

In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs.

and

To have legal personality means to be capable of having legal rights and duties within a certain legal system, such as to enter into contracts, sue, and be sued. Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations. In international law, consequently, legal personality is a prerequisite for an international organization to be able to sign international treaties in its own name.

Legal persons (lat. persona iuris) are of two kinds: natural persons – people – and juridical persons (also called juristic or artificial or fictitious persons, lat. persona ficta) – groups of people, such as corporations, which are treated by law as if they were persons. While people acquire legal personhood when they are born, judicial persons do so when they are incorporated in accordance with law.

 One of the most important reasons that corporations were regarded as legal person(alities) is the need to limit the liability of the shareholders who provided the original capital of the corporation.
If each shareholder were responsible to the fullest extent of the law when an accident occurred, no person in their right minds would provide capital to fund a corporate endeavor.

Back in the old days, no people would have provided funds for ships, if a shipwreck meant that those who were part of the joint stock company were all liable for the deaths of the crew members.

But now this legal personage has become a Super-Individual.

The concept of the legal personality of a corporation was strictly limited to business matters. This modern day straining of the concept of personhood to grosser issues - such as freedom of speech and the ability to contribute to political campaigns - is a laughable measure, if it were not so pernicious.
When a corporation has the right to freedom of speech, it speaks with millions of dollars behind it, and its voice can easily drown my voice out.

If we permit the Supreme Court to continue along this bizarre path, shall we see corporations all grasp the right to keep and bear arms? If it is to protect themselves... or to stand their ground.... why not? I bet some Republicans in Georgia are working on it now.

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Justice Scalia and The Second Amendment

Justice Scalia, eternally trying to get a wedgie into the perouques and linens of the Founding Fathers, would never be able to support any right to bear automatic weapons under the Second Amendment; it would be quite clear that the Founding Fathers did not imagine any such weaponry, hence, it could not have been "in their heads".
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note:
He may have said as much in Heller.

Scalia's Historical Police

In the post  http://fatherdaughtertalk.blogspot.com/2012/09/the-cult-of-founding-fathers.html
we talked about disturbing revelations about President Thomas Jefferson.

It was during the 1950s, when historian Edwin Betts was editing one of Colonel Randolph’s plantation reports for Jefferson’s Farm Book, that he confronted a taboo subject and made his fateful deletion. Randolph reported to Jefferson that the nailery was functioning very well because “the small ones” were being whipped. The youngsters did not take willingly to being forced to show up in the icy midwinter hour before dawn at the master’s nail forge. And so the overseer, Gabriel Lilly, was whipping them “for truancy.”

Betts decided that the image of children being beaten at Monticello had to be suppressed, omitting this document from his edition. He had an entirely different image in his head; the introduction to the book declared, “Jefferson came close to creating on his own plantations the ideal rural community.” Betts couldn’t do anything about the original letter, but no one would see it, tucked away in the archives of the Massachusetts Historical Society. The full text did not emerge in print until 2005.

Betts’ omission was important in shaping the scholarly consensus that Jefferson managed his plantations with a lenient hand. Relying on Betts’ editing, the historian Jack McLaughlin noted that Lilly “resorted to the whip during Jefferson’s absence, but Jefferson put a stop to it.”

Read more: http://www.smithsonianmag.com/history-archaeology/The-Little-Known-Dark-Side-of-Thomas-Jefferson-169780996.html#ixzz29kh9h8yK

In my opinion, this short passage completely refutes the absurd theory promoted by Mr. Justice Scalia that we can understand with precision adequate for legal decisions what was going on in the minds of certain individuals (the framers of the Constitution) more than 200 years ago.

http://en.wikipedia.org/wiki/Antonin_Scalia

Scalia describes himself as an originalist, meaning that he interprets the Constitution of the United States as it would have been understood when it was adopted. According to Scalia, "It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."^[6]

We rely upon the work of historians to preserve the Past.
Mr. Scalia's legal philosophy requires an unchanging realm of the Past, a Platonic realm which never varies, never fades, nor ever dimishes; it may be ignored, but it is always there to be discerned by people like Mr. Justice Scalia.
Mr. Justice Scalia's philosophy pretends that it can cordon off certain important areas of the past, as if historians place a tape saying "Historical Police Order - Do Not Cross" around a crime scene.

The evidence of the Past is always contaminated by every sentient entity that comes into contact with it

When it comes to interpreting what went on in the Past, everyone has access to the Evidence Room...
The Chains of Evidence are always broken, the evidence is always compromised.

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Mr. Justice Scalia's Constitution

The US Constitution became law of the land when New Hampshire became the 9th State to approve in 1788 by a legislature vote of 57 to 46. Rhode Island made it unanimous in 1790 with a vote of 34 to 32.

The was a large minority of people who yet retained the idea that it was the right of the States to withdraw from this compact when necessary. The first State to set about doing so was Kentucky in 1798, followed by Tennessee, both passing resolutions of potential nullification of the agreement to join into the Union under the law of the Constitution.
Their grievance was the inactivity of the Federal government in securing free and open navigation of the Mississippi all the way through New Orleans. Since the government did soon accomplish this objective, these efforts came to naught.

In 1814, the New England States met at the Hartford Convention in Hartford, Connecticut, due to their own perceived grievances, and soon passed a resolution of nullification:




 Daniel Webster was the hero of Hartford, and this assembly was seemingly the birthplace of the spirit of sectionalism in the country.
Hodgson, in his "The Cradle of the Confederacy" writes:





We shall go no further, but must observe that there are currents flowing from the era of the Founding Fathers - a minority, true, but still a vital part of a democracy - that had a very different view of the Union and the Constitution of that Union.

I ask Mr. Justice Scalia whether we attempt to understand the minds of a few Founding Fathers, or do we add in the minorities, whose debates and discussions were as equally formative of the Constitution as the debates of the select few who have been canonized by our history books?
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