Friday, December 18, 2009

Holistic Socio-Legal Science

The following holistic socio-legal functions and objects (bold type) were derived from semantic sound symbolisms of Arabic word stems (in parentheses) that denote socio-legal concepts. The components of these functions and objects are holistic socio-legal elements (in cursive).

A society or community (“hamza meem meem”) is a group of persons that are committed to each other (bound to each other by contracts and laws). A society (“geem meem 'ain”) also is defined as a group whose relationships are governed by certain laws or rules.

One purpose of the laws governing a community is to preserve mutual commitments. A person or group that rejects commitments, contracts, rules and laws are called asocial or antisocial.

A social affair or issue (“hamza meem ra”) is a circumstance under which the definition of assignments of execution is determined. A social affair is a circumstance or context in which one has to define who does what, how, when, where, and so on.

A person in charge or a leader (“hamza meem ra”) is someone assigned the task of defining all assignments of execution for a community. A leader's function is to define who does what, how, when, where, and so on. In other words, the leader is the person in charge of taking care of social affairs. A leader is alternatively defined (“hamza meem meem”) as a person who gives assignments to others.

A mother (“hamza meem meem”) is a person who brings forth another person. Reproduction thus is a social function.

The word root (“hamza meem meem”) is interpreted in different ways to define three social essentials: community, leader and mother. This is an indication that a good community is built around families that each have a mother and good leadership.

A law, code, rule or regulation (“kaf ta ba”) is a proper definition of the implementation of control in the form of a set of instructions to do certain things, a set of instructions to refrain from doing certain things, and a mechanism of checks and balances to verify that these instructions (rules) are adhered to. Verification can take the form of a penal code.

A constitution (root “sheen ra 'ain,” word form “shari'ah”) is a set of instructions on how to create and implement laws in a society in such a way that discretionary life (self-determination, liberty) is preserved for every person. Preservation requires mechanisms to recover from error, resolve disputes, and solve erupting problems.

The functions of “self,” “liberty” and “discretion” belong in Holistic Theology. A constitution thus always has a theological aspect. Consequently, all legal science is theological.

What is commonly called legislation or lawmaking is in fact (or should be) a valid interpretation of the constitution by analogical reasoning (“noon ha geem”): one tries to prove that a constitutional formula has a valid interpretation (interpretation = hypothesis to be corroborated = law to be created) for a real legal context by matching the implications of the interpretation to reality.

This process is similar to what we do with Algorithm C to derive definitions of elements, functions and objects (new scientific rules) by verifying interpretations of word roots (abstract natural formulas).

This method is the basis of analogical reasoning which is the main tool of thinking and jurisprudence. For different situations in reality, the same formula may have different valid interpretations, depending on what guidance we receive from God.

God wishes each of us, not just scholars, to use such analogical reasoning to perform proper interpretation—connect principles to reality according to our mental capability, using light from God and other help (God's arrangement of favorable circumstances)—in order to judge reality by what God has sent down (all constitutions are originally based on scriptures). This includes all aspects of reality, not just what some lawyers or leaders tell us to limit our judgment to.

A mechanical algorithm is one that can be executed by a computer without human intervention. It is a special kind of procedure for implementing rules without creative interpretation. A mechanical algorithm implements principles in such a manner that all the interpretable, discretionary parts of the principles are decided upon in a fixed way. There can be no discretion left in a mechanical algorithm. There can be no machine with discretion.

But unlike mechanical algorithms, the laws, rules and regulations of a free society must leave room for interpretation and discretionary decisions by the people who are expected to live by those rules.

The function of a referee, juror, judge, or court is to render a ruling, possibly after running a mediation or trial. All these functions and objects are derived from a single interpretation of (“hha kaf meem”): a process for returning people or circumstances from the state of breaking the law, or being about to break it, back to the correct implementation of the law governing a community.

A compromise or a settlement (“ssad lam hha”) might be used instead of a ruling, a function that shares its word root and definition with the theological “good deeds” function: an arrangement to build, repair, maintain or increase the connective structure, the wholeness, or the health of a living thing or a group of living things.

The preservation of human interests must takes place according to basic precedence rules that were prescribed in every scripture and are built into all constitutions. In the 1380's, the Spanish judge Shatibi wrote about these preservation rules in his Muwafaqat. The rules were refined by this author in the following form:

Preservation Precedence Rules. Constitutions seek to preserve the human interests of self, body and business in descending order of precedence. Human interests are preserved at three levels of fulfillment, essential fulfillment, smooth fulfillment, and aesthetic fulfillment, in descending order of precedence.

The preservation of the essential fulfillment of human interests means to build and maintain them, to protect them if they are threatened, to defend them if they are attacked, and to rebuild them if they are damaged. The preservation of the smooth fulfillment of human interests is achieved by securing moderation and balance and by removing hardship. The preservation of human interests is realized at the level of excellence by aesthetic fulfillment, such as by the promotion of good manners, nice clothing and landscaping.

All laws and social principles are based on this precedence system. Liberty has precedence over everything because it is at the core of the essential fulfillment of the interests of the self. Clashes of interests and trade-offs are resolved (for example, by courts) or mediated using the above precedence system. Appropriate responses to threats or attacks are constructed and assessed using it. Spending priorities are determined by it. The following basic preservation rule is derived from it.

Preservation Rule 1: Justifiable defensive action. You may repel an attack on someone’s interest even if the attacking interest has higher legal precedence than the victimized interest

a) by advice, appeal or admonition (remedy using the aesthetic level of fulfillment), and if this fails, and the victimized level of fulfillment is smooth or essential, then

b) by pressure (remedy using the smooth level of fulfillment), and if this fails, and the victimized level of fulfillment is essential, then

c) by force (remedy using essential level of fulfillment),

otherwise, the defensive action is unjustified and constitutes a crime as violent as the level of fulfillment it is at.

Justice (“qaf seen tta”) is the equal application of law to all persons in a society.

A violation or aggression (“'ain dal waw”) is to extend one's activity into someone else's sovereign area (territory, circle of control). An enemy is a violator or aggressor.

Tyranny, injustice, and excess share a word root (“tta ghain ya) and thus are intertwined. The same word root is interpreted in very different ways to produce the three apparently different but very closely related functions. Injustice is the unequal application of law. Tyranny is government by destructive force (government is the continued exercise of control). Excess is to fill up a container beyond its limits, a concept that is obviously similar to aggression (extending one's activity into someone else's sovereign area).

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