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Saudi Arabia Legality Of The Modern Legal Profession Philosophy Essay

The subject of the legal profession is widely discussed among the scholars of Islam. These discussions become very intense, and there are long debates around the issue of whether or not the legal profession is legal under Islam or not. One group of scholars feels that this profession has no Islamic legal basis. Therefore, it should be disallowed in the Islamic world.

Those who Say it should be Prohibited

When one observes closely the individuals who hold this opinion, one finds that they have been influenced by the thinking of scholars in other Islamic countries. Therefore, they strongly urge that this profession be stricken from existence, saying: "This occupation is one of the largest disgraces in the Islamic judicial system. It might be the largest and ugliest disgrace of all. There is no conceivable way to justify its existence where correct and proper procedure are concerned. As for the occupation, courts have no real need for it. There are other (Islamic) ways to secure people's nights other than the legal profession. Ideal Islam therefore totally denies the legality of such a profession. It will forever remain impossible for the smooth process of Islamic law to be maintained as long as this occupation exists in our courts.. we stand at risk of losing belief (Iman) after having lost justice and fairness.. Based upon this I find the necessity of banning this profession and cleansing our courts of its ugly effaces gradually until it becomes extinct… lawyers are not the least bit concerned with whether the client is guilty or not, a criminal or not, wants to receive wrongfully the rights of another or not, etc.. They seek to mislead the judge and to offer the judge legal language. This language leads the judge to render a discussion which allows the client to go free. Avoiding fairness and justice. This is all that the lawyer is concerned with. No concern is shown for the idea of who is really the criminal and who is not. The legal profession is not concaved with upholding the rights of the mistreat or and/or the mistreated. Money becomes the center of focus, and whoever has the most money ends up with the most rights.. the negative effects of the legal profession do not end here. It has encouraged people in our solely to defy and go against the Law instead of following it. It has had an effect on every aspect of our everyday community life. Due to this, evil and corruption have spread throughout our political system Islam rejects the existence of this profession. There is no place for it in its legal system. The legal profession, it practiced, would blind Islam to its spirit, opinion , and its traditions( [1] ) Al-Maududi's writings on this topic show that his opinion and thoughts are very similar and close to the reasons and refutation submitted by scholars in the kingdom. The reasons of these opponents to the legal profession can be summed up in the following points:

There are traditional scholars who view the legal profession as being as being not more than a part of mediation and advocacy (Al-Shafaa'ah) ( [2] ) They use as proof not this opinion the Hadith to the Messenger, narrated by Aisha:

Quraish became worried abut the fate of the woman from the tribe of Makhzoom ho was identified and convicted of theft. They began to talk to each other seeking to find out who would be the best person to intercede on her behalf by going to the prophet. They found that no on was ore beloved by the prophet than Usamah lbn Zaid. So they sent him to intercede for the woman. The Messenger replied to Usamah saying: "What caused the people before you to perish was the fact that it a noble person from amongst them was convicted of theft they would let them go free. And when a poor person was convicted of theft they would carry out the penalty of the crime against him/her. I wear by Allah that it Fatima my daughter was convicted of theft that I would cut her hand off.( [3] ) It can be said that in rebuttal to this Hadith, there is a very big difference between intercession (the point of this Hadith) and the value of the legal profession. Usamah was not the lawyer of the woman who stole. He simply tried to mediate on her behalf , attempting to convince the Prophet to forgive her. Had he been her real lawyer he would have begun defending her from the very beginning..

There are some Islamic scholars who use the additional argument that legalizing the profession would be legalizing the right to judge under the Positive Law Systems which are opposed to the Islamic Legal System( [4] ) . This right to judge, of course, is illegal in Islam. Proof of this lies in the verse which says: "And whoever does not rule by Allah's rule those are the non-believers, transgressors, and wrongdoers"( [5] ) This is to say that the legal profession is a product of legal systems other than Islam. This is currently the situation in some Islamic countries who have left parts of the Islamic legal process and have also adopted Western legal system models. It can be said in rebuttal to this that the verse does not refute the legal profession. It refutes the notion of acquiring and using any law other than that of Allah in the judgment of people. It is not the legal profession which is wrong: rather it is how some countries have chosen to practice it. If the judges, the police, and the lawyers all exist in the same Islamic environment, and uphold the same legal system then there should be no way for any of them to submit proof outside of the realm of Islam.

Some of the Islamic Scholars contend that some or a lot of those who practice the legal profession aspire to reap financial rewards regardless of whether the method used is just or unjust ( [6] ) it an be said in rebuttal to this statement that lawyers are human beings. By virtue of being human, they err on occasion: thus, if some lawyers are found to be in arrears, this should not lead to a mass slandering of the entire profession.

Lawyers are not the only group of professionals who make mistakes. Teachers, doctors, and even judges make mistakes, Should their professions, therefore, be banned, disallowed and done away with? Should the judicial practice be done away with after finding out that one judge received money as a bribe? If this were the case ,the whole world would cease to function. All professions would easily become invalid. This argument is therefore unjust and unfair.

This group of people opposed to the legal profession maintain the thought that his profession is new to Islam and Islamic community . those who hold this belief say that the legal profession is a modern profession unknown to Islam until recent times. They also say: "Islamic rule has stood firmly over almost half the world for ore than 12 centuries, and we have not overseen the existence of a (true) legal profession practiced in the judicial system of Islam throughout these times( [7] ) However, simply by examining Islamic law it is impossible to conclude the validity or invalidity of this modern profession. This is mainly ue to the fact there is no clear Islamic statement in the Holy Koran or the Hadith stating for or against it. It is true that Islamic authors agree that Islamic Jurisprudence did not recognize the legal profession as an organized and/or integral profession within their society. Some of the reasons for this that have been mentioned by these scholars are: 1)the circumstances of the original Islamic society. 2) the lucidity of the Islamic Process, and 3) the habits of judges at that time, which was to seek the advice of the scholars of Islamic jurisprudence, Fuqahaa.

Furthermore, some of the legal scholars feel that besides these facts, there was a tolerance of this profession , in other words, people would depend on others to defend or represent them, and this was legally Known as power of attorney (Al-Wakalah Fil Al-Kasumah). They say: "..the practice of power of attorney in the early centuries of Islam does not differ from the practice of today. The only real difference might be in some of the processes( [8] ) . in fact, some legal scholars consider there not to be a difference between the legal system of today and the actual way if was practiced in the earlier centuries of lslam, known as Al-Wakalah fil Al-Kasmnah. Even if we acknowledge that this profession is new to lslam, does this mean that this profession should be prohibited because it is new? There is no doubt that what is available today must stand up to and be evaluated by the lslamic jurisprudence process known as FIQH , and if we research the area of lslamic jurisprudence Known as public interest (Al-Masalih Al-Mursalah Fil-lslam) . we find that to recognize and ratify this profession is in fact not inconsistent with Islamic law (as will be explained later): it is the legal profession which receives and protects the rights of the individual while guarding them from injustice.

A further argument by some Islamic scholars is that the fees collected by lawyers are unlawful( [9] ) . The proof for those who feel this way is that this money is given to the lawyer in hope that he strike up a heated argument and to obscure the truth. Others say that there is no wrong in a lawyer's receiving compensation for his efforts, in light of all the work and preparation done.

Some scholars argue that this occupation is looked upon as being of the olfactory contract "Uqoodul Gha'rar."( [10] ) This is a false accusation against the profession due to the fact that currency both the lawyer and the client must first write a clearly defined agreement, one which has no condition of guaranteeing the outcome of the case. The lawyer must then work very hard to establish the truth. But he is not required to guarantee the outcome of the case for his client's benefits.

Still yet, another group of scholars argue that there is a risk involved when the unknown lectors are considered and all the real complexities are involved especially when a lawyer deals with many cases at the same time the best argument to this is that qualified lawyers would deal with the cases in a careful manner. Lawyers spend much time and hard effort in sustaining and maintaining justice (this point falls within FIQH).

Finally , it is also claimed at there is no real pressing need for this profession to exist currently in the Saudi community. The community can do without lawyers simply by allowing any person to be a proxy or atomic on the behalf of the client. This is rebutted simply when one considers the rapid and massive development that Saudi Arabia has been going through. After oil was discovered and the desolate regions became overwhelmed by the outbursts of minerals and wealth from the earth, the Saudi society began to change radically. A life of advancement for the kingdom of Saudi Arabia came after a life of desert dwelling, Bedouin life, country living, herding and fishing.

This immediately introduced legal difficulties to this country, especially at a time when an economic boom had taken it by storm. The infrastructure began to change as well as the overall relations of the government with the outside world.

As for the changes within the society, the people began to focus on building up the country physically. There was an emphasis on high class modernization, which would accord services to the society. These services led it to the change in the Saudi environment from one of a Bedouin, herding-type country to an industrial and trade economy of the highest worldwide standards.

As to be expected, this caused the people themselves to change along with the changers of the land. Sections of the society began to become involved with new sociological innovations , by establishing companies, factories and business transaction within the booming trade market. This economic explosion went beyond the local level to the worldwide. Many international companies began to start to migrate to Saudi Arabia. Many of them were oil companies such as Shell, Mobil Oil, Texaco, etc. Furthermore, many foreigners came as workers or investors.

Naturally, all this change inside and outside of Saudi Arabia led to many legal contractual concerns. In addition, there was a growing concern about the rights among the individuals, between them and the government, and finally. Between the government and other governments as well.

To meet the needs of this new and modern society of Saudi Arabia, many regulations were set in place which would make it easier for things to function, both locally and internationally. Some of these new regulations were 1) bank regulations, 2) company regulations, 3) commercial paper regulations, 4) foreign investment regulations and 5) mining and mineral regulations.

These changes led, ultimately, to the overall need for the legal profession, in order to facilitate the concerns which arose because of them. It can now be argued that the existence of the legal profession is essential in order to maintain existing rules and regulations which were set up by the government to manage the new organizations, to develop new legal drafts for governmental agencies, and providing legal regulations, advice and consultations, especially when the government attempts to engage in contractual agreement with other countries or with foreign companies.

Last but not least, the legal profession is, in my opinion, crucial to carrying out the burden of guaranteeing justice for everyone, whether an individual or any agency.

Those Who Accept the Legal Profession

It is evident in the writings and legal discussions of this group of scholars that they view the parties as being valid and legally fundamental to Islam. The Council for Research and formal legal Opinions in the Kingdom of Saudi Arabia issued the following statement: "If t is found that in the practice of law or (judicial decisions) that the truth is made clear (established), and all falsehoods are established in accordance with lslamic law: so that all possessions are returned to their proper authorities, and the rights of the weak are protected, the profession is viewed as valid due to its compliance with the words of Allah: "Aid each other in upholding justice and forbid each other from breaking the law( [11] ) . Otherwise the legal, and judicial professions become illegal, prohibited practices in the religion of Islam. ( [12] ) .

As previously mentioned, some scholars deemed the legal profession identical to Al-Wakalan fil Al-Kasumah in Islam. Based on that, everyone has the right to seek legal help from a qualified lawyer and the judge should accept this lawyer representation unless that lawyer does not have sufficient proof that he is legally representing that client( [13] ) . Sheikh Ahmed Almubarak stated that he doesn't see any wrong in allowing lawyers to practice. The objective view/s of lawyers in a case could help the judge to see the issue clearly. It s logical that a judge cannot examine a case alone without legal help from a lawyer. However, the lslamic judicial system prohibits any one from advocating on behalf of wrongdoers when he knows they are truly wrong( [14] ) .

Opinions stem from those scholars" observations and studies of the areas of Islamic Law which discuss power of attorney representation, combined with a host of logical koranic and Hadith disorientation. Proof from the Holy Koran is as follows:

Make trial of he orphans until they reach the age of marriage: if then ye find sound judgment in them, release their property to them, but consume it not wastefully, nor against their growing up… ( [15] )

This verse clearly illustrates the validity of power of attorney Some proofs from Hadith are as follows:

It is reported that a man approached the Prophet in an angry manner about setting the Prophet's debt with him. The Prophet's companions quickly surrounded the man, but the prophet instructed them to leave him alone. He said: "Any man owed a debt should be allowed to speak freely" He said: "Give this man a camel" "A camel?" they replied. He replied:"The best of you in payment. [16] 

It is also reported that Hasam Ibn Thabit, one of the famous companions of the Prophet, sat to be judged under the Caliph Uthman. The Caliph issued judgment against Hasan. This saddened him because he knew the truth was with him. When he was leaving the mosque (the place of the first courts) he met Ibn Abbas, the Prophet's uncle. That one listened to Hasan's story and afterwards took him back to the mosque . He began to defend Hasan formally in front of Uthman until the Caliph retracted the judgment and issued a new one. [17] 

This story illustrates that Ibn Abbas acted as a lawyer on behalf of Hasan, and no one denied him that authority.

It is fair to say that those who accept the legal profession have taken a practical and logical decision based on the fact that it has not been found that there is anyone who denies the validity of power of attorney in Islam. This consensus [18] justifies power of attorney and all and any of its components, with legal representation being a part of power of attorney according to fundamental Islam and Islamic law.

Al-Masalih Al-Mursalah Fil Islam [19] ( the general public interest benefits (welfare), philosophy of Islam) is a branch of Islamic jurisprudence, which brings a feeling of ease to the community ( public), while alleviating all pain and stress. To achieve this goal is to acquire benefits for Allah's servants ( the people) and restrain all evil and/or harmful impurities which might affect them. From this branch it is possible to extract some pieces of substantiating proof for the "Legal profession." These are all logical and historical. They are extracted from the necessary link between the legal profession and the concern of upholding and bringing forth the truth, while maintaining fairness and equality. The legal profession, in light of these needs becomes necessary for the judges, who bring forth the rulings and decisions, for the individuals who become the direct objects of these rulings and decisions, and for the society as a whole.

Individuals have the need to depend on someone who will protect them when they are placed in situations where they are at risk, where they might be judged in a way which might call for them to be punished in some form. It is general knowledge that life can become very complex, and sometimes it becomes impossible for the common individual to have knowledge and understanding of the different legal scenarios. It then becomes imperative that the individual has appointed in his/her favor a person qualified to defend he/she, a person who ensures that the truth is sustained and justice is preserved. On the other hand, an individual could be criminally involved or accused and thus could be viewed and judged in a way which could reflect inadequacies in properly producing the facts. Or, perhaps the individual is plainly incapable of defending his/her self due to a host of reasons, (i.e., mental retardation, illiteracy, fear, etc.). The individual might be frightened at the mere mention of a "courtroom." There are other reasons all of which will damage the individual's ability to properly represent himself. These particular types of individuals have a great need for legal representation. We must remember that the accused is a human being first and last. He/She has the right to defend himself. The lawyer must then be an investigator and attorney of the right of the accused. This is not only during the trail process but also even after the accused is found guilty. He/She still needs someone to guarantee his/her right that he/she is not in any way mistreated. The Holy Koran states:" He said: 'O my Lord! I have slain a man among them, and I fear lest they slay me. And my brother Aaron he is more eloquent in speech than I: go send him with me as a helper to confirm and strengthen me: For I fear that they may accuse me of falsehood." He said:" We will certainly strengthen thy arm through thy brother, and invest you both with authority, so that they shall not be able to touch you: With our signs shall ye triumph- you two as well as those who follow you." This verse clearly illustrates the validity of seeking the aid of someone who can argue on one's behalf when this one is unable to do so. Historically, the Prophet Moses was known to have a speech impediment.

Establish and uphold justice through legal assistance to the client and the judge so that the proper judgment can be made and justice prevail. The Final purpose is to extend legal counsel to, and represent, those who are unable to do so themselves.

SECOND:

The arguments concerning the validity of this profession have not only affected the progress of the profession, but have also affected individuals who work in the profession as well. The attitude towards lawyers by scholars and judges is very harsh. The lawyer is innocent, is only doing his job and is merely attempting to serve justice. He/she deserves better than that. This is partly the reason that lawyers are now low-spirited people. Many are fearful of having to go in front of certain judges. This is because these lawyers know beforehand that they are unwanted and will be sneered at in the courts. I would like to make it clear that these observations are directed toward some irrational individuals who constrict the scope of Sharia'a law by refusing anything new which could be codified under the Sharia'a law; however, they are not directed to the Sharia'a. It is directed at those who claim that Islamic law is at conflict with the legal profession. In my opinion, this opinion could not be further from the truth due to the following reasons:

1)Islamic law states that everything is originally viewed as lawful. What changes that viewpoint are direct statements from God in the Holy Koran or the statements of the Prophet Mohammed in his tradition. If they teach that a deed is not lawful, then and only then, is that thing to be labeled unlawful.

2)The individuals who are against the profession are narrow in their understanding of public interest (Al-Masalih Al-Mursalah) in Islam. This ignorance results in their blatant ignorance of the necessity of the existence of the entire legal profession.

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