Developing Rules for Construction and Maintenance of Roads from Syariah Principles for Promoting Efficient Regulation for

Developing of Built Environment in the Muslim World By Ainul Jaria Maidin1 ainulj@iium.edu.my & Sharifah Nadiah Syed Ahmad2 Abstract Islam encourages sustainable development for the Muslims in every aspect of life. Muslims should envision the promotion of a better quality of life for the Ummah including protection of every living being, and preservation of natural resources through the development of just, moral, creative, spiritual, economically vibrant, caring, diverse and cohesive society characterized by high productivity. The participatory role of man in democratic processes, and living in harmony within the limits of the carrying capacity of the nature requires man to promote development, growth and prohibit destruction. The goal of Islam is one of sustainable development for the sake of achieving mardatillah (pleasure of Allah (SWT)) without sacrificing the right to promote reformation and transformation in accordance with the needs of the society and advancement of technology. However, all development activities must be carried out in accordance with the rules and controlled by the government. The Quran pronounces that it was revealed to reform human conditions. Despite accepting the pre-Islamic customs and practices of Muslims, Islam has rejected customs which were harmful to the society and development to prevent harm and oppressiveness which is against Islamic fundamentals. Governments are given the rights to exercise their power of reasoning (Ijtihad) to develop new rules and regulations based on the Quran and Sunnah of the Prophet (SAW). Rules are an important tool for promoting the orderly administration of any civilized society. Most Muslim nations have not managed to fully develop their legal system based on the Quran and Sunnah except in areas of personal law, finance and criminal law. Majority Muslim nation continued to implement the western colonial law even after achieving independence. This paper seeks to identify the principles from the Quran and Sunnah that can be developed to provide regulation of the construction and maintenance of roads in the Muslim world. Keywords: roads maintenance, sustainable development, maqasid syariah, marsalih mursalah I. Introduction Roads, highways, streets, footpath, and lanes are an important means of creating right of way for mens daily life as without right of way, it would be impossible for man to travel from one place to the other. All legal systems specifically provides for the right of way as this is an important right. Infact, the State has a right to impose limitations on private landowners in order to create right of way for the neighbours or anyone else if its expedient and necessary. Similarly, land ownership in a Muslim society is accompanied by an obligation to consider and give certain rights to neighboring landowners. Among the specific rights guaranteed by the Shariah are the rights to privacy, right of preemption, and easement. Easement is an important right for landowners especially those landlocked and not able to access the public terminal. Easement in Arabic literary means Elbowing. It denotes the reduction of a property owners rights or benefits for the purpose of benefiting another neighboring property or properties. 3 Example of easements
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Assoc Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia. Corresponding author 2 Postgraduate Candidate, 2010, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia 3 Abu Zahra (1963) Al Milkiah wa Nazariat Al Agd fi Al Shariah Al Islamiah , Cairo, Egypt: Dar Al Fikr Al-Araba cited in Akbar J. (1984) Responsibility in the Traditional Muslim Built Environment , PhD dissertation submitted to

rights also include the need for properties on lower elevations to allow properties on higher elevations to drain their rain and waste water through their property or for a house situated in the midst of other houses usually referred as landlocked to be provided access. Easements are specific to immovable property, are mandatory on the eased property and cannot be abandoned. Easement always involves the loss of some rights by the owner of the property where easement is created (servient tenement) and some benefits for the owner (dominant tenement) to serve the needs of the neighboring property. Easement is allowed in public properties because of collective ownership and in private properties because of adjoining or topological nature of the property. Easement rights created between private landowners can be sealed as contract, registered and gives rise to contractual obligations. Land on which easement rights are granted can be used as private right of way without governmental interference. The government is at times called to create right of way for the public or private individuals where negotiations for creation of easement fails. The creation of right of way is a unilateral act and can be imposed on the landowners whose land is acquired for the purposes of creating the right of way that could be used as public or private right of way. Creation of right of way is essential as it concerns the interest of the public at large. This means concessions that are granted in the sphere of ibadat may be secondary to the survival of an individual but it becomes a matter of primary interest for the community as a whole. In the event of a conflict arising between the various classes of interest, the lesser interest amongst these can be sacrificed to afford protection to a higher interest. When there is a plurality of conflicting interests and none appears to be clearly preferable, then prevention of evil takes priority over the realisation of benefit. Shariah is more emphatic on the prevention of evil, as can be seen in the hadith where the Prophet (SAW) has reported to have said, "Nay, by Allah, you either enjoin good and forbid evil and catch hold of the hand of the oppressor and persuade him to act justly and stick to the truth, or, Allah will involve the hearts of some of you with the hearts of others and will curse you as He had cursed them". 4 Allah (SWT) in Surah Al Imran verse 104 says, "Let there arise out of you a group of people inviting to all that is good (Islam), enjoining Al-Ma`ruf (i.e. all that Islam orders one to do) and forbidding Al-Munkar (Disbelief and all that Islam has forbidden). And it is they who are the successful.''

The State can acquire private land for creation of right of way for the public despite such act depriving or limiting the rights of the landowners. However, Islam permits such act as its essential to meet the needs of the public interest. The land taken for the creation of right of way can be constructed into highways, roads, streets or lanes. These are all means of right of way and assume an important role in peoples lives in a way that not many have realized. It connects one place to another where daily routines are carried out and also to public terminal such as train station, main roads, and seashore. A right of way is a path that anyone has the legal right to use on foot, and sometimes using other modes of transport.
MIT, Cambridge, Massachussets, p.43. 4 Sunan Abu Dawud and At-Tirmidhi.

Legally, a public right of way is part of the States highway and subject to the same protection in law as all other highways, including trunk roads. The legal right of individuals is to pass and repass along the way, can stop to rest or admire the view, or to consume refreshments, providing they stay on the path and do not cause obstruction. The person can also take items such as a pram, or pushchair, manual or powered wheelchair (mobility scooter) provided they follow the regulations for taking these vehicles on ordinary roads. However there is no guarantee that the surface of the path will be suitable for pushchairs and wheelchairs especially if the way is not properly maintained and filled with potholes that may pose dangers to the users. There are no direct verse in the Quran which mentions the word road but there is a mention of highway in al-Anbiya verse 31 wherein Allah (SWT) says; And We have set on the earth mountains standing firm, lest it should shake with them and We have made therein broad highways (between mountains) for them to pass through: that they may receive guidance.5 Broad highways, as commented by Al-Khwarizmi in his Tafseer of Quran, 6 and We placed therein broad highways means, mountains passes through which they may travel from region to region, country to country. As we can see, the mountains form barriers between one land and another, so Allah (SWT) created gaps passes in the mountains so that people may travel from here to there. So He says: that they may be guided. Highways, roads or streets are means used to travel from one place to another by men. The above verse is proof that the importance and functions of roads are acknowledged in Islam and that every person must be granted the right of access to street. Islam provides that every single right of a person must be respected and protected. This is established in a Hadith narrated by Abu Huraira which displays the value of street and the importance to protect it from obstruction or harm. The Prophet (SAW) said, While a man was on the way, he found a thorny branch of tree there and removed it. Allah thanked him for that deed and forgave him.7 Islam does not stop there but rather goes as deep as to prescribe adab or ethics while one is accessing the street. In another Hadith regarding roads and narrated by Abu Said al-Khudri, Prophet (SAW) was reported to have said to a group of men; Beware! Avoid sitting on the roads (ways). The people said, There is no way out of it as these are our sitting places where we have talks. Prophet said, If you must sit there, then observe the rights of way. They asked, What are the rights of ways? He said, They are the lowering of your gazes (on seeing what is illegal to look at), refraining from harming people, returning greetings, advocating good and forbidding evil.8 Islam recognizes the importance of street in society as it provides a means for people to go from one place to the other for various activities such as religious, social, cultural and employment as amplified in the verse quoted above that they may receive guidance. .

5 6

Translation by Yusuf Ali Tafseer of Quran, Book 21: Anbiyaaa (The Prophets), Chapter: In Everything There Is A Sign of Him, Showing That He Is One. 7 Sahih Bukhari, Volume 3, Book: Oppression, Hadith No. 652. 8 Sahih Bukhari: Volume 3, Book: Oppressions, Hadith No. 645.

However, the verse also observes that the culture of sitting on the roads can cause obstruction and should be avoided. The importance of maintaining the street in order to preserve the rights of access by the public is also emphasized in the Hadith. There are many biased accusations of Islam being anti-development, oppressive, backward, etc. These false allegations, together with many others, are only a click away from being displayed on the net. These allegations are baseless and do not hold water. Islam has never promoted against development and improvement. This is proven through a series of verses which begins with the responsibility of Muslims to seek knowledge. Allah imposed the obligation for Muslims to learn in the holy Quran, again and again. In fact, the first verse that was revealed to Prophet Muhammad (SAW) is al-Alaq, verse 1 which means; Proclaim! (or Read) in the name of thy Lord and Cheriser, Who created- 9 Allah (SWT) encourages Muslims to acquire knowledge for the sake of development and improvement of the ummah which will subsequently lead to the expansion of Islam. In Surat Hud, verse 37, for instance, Allah (SWT) instilled the knowledge of the construction of an ark to Prophet Noah (a.s) through divine inspiration. The ark was big and strongly built which construction would be impossible without divine intervention. Such sophistication and technology (as was then) is a glaring proof that Islam values development and promotes growth in tandem with development activities. Allah (SWT) says; But construct an Ark under Our eyes and Our inspiration, and address Me no (further) on behalf of those who are in sin: for they are about to be overwhelmed (in the Flood). 10 In another verse, Allah (SWT) once again mentions of the gift of technology through the gift of ships as vehicles to sail through the sea which is another form of right of way. Allah (SWT) says; It is Allah Who hath created the heavens and the earth and sendeth down rain from the skies and with it bringeth out fruits wherewith to feed you; it is He Who hath made the ships subject to you that they may sail through the sea by His command; and the rivers (also) hath He made subject to you.11 Referring to the practice of Prophet Muhammad (SAW), Prof. Dr.Yusuf al-Qaradhawy 12 commented that whenever Prophet is faced with matters related to the end result of an agriculture technique which Prophet (SAW) did not quite like, Prophet (SAW) would just say to the Companion, You know better in your earthly matter and Prophet (SAW) said that, Whatever the Muslims deem to be good is good in the eyes of Allah 13

Translation by Yusuf Ali. Surat Hud: 37. Translation by Yusuf Ali. 11 Surat Ibrahim: 32. Translation by Yusuf Ali. 12 Yusuf al-Qaradhawy. 2009. Agama Dan Politik: Wawasan Ideal dan Menyanggah Kekeliruan Pemikiran Sekular-Libral. Kuala Lumpur: Alam Raya Enterprise, pp. 119-20 13 Ibid.
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According to Ahmad,14 a renowned Islamic scholar who explored the Islamic philosophy governing development, development is that all development activities must be carried out taking into consideration all the following elements; - Tawhid - Gods unity, and sovereignty. - Rububuyyah divine arrangements for nourishment, sustenance and directing things towards their perfection. - Khilafah mans role as Gods vicegerent on earth. - Tazkiyah purification plus growth. Development activities for a Muslim must be goal-oriented and a value-realizing activity, involving a confident and all-pervading participants of man and directed towards the maximization of human wellbeing in all its aspects and building the strength of the ummah so as enable man to discharge his role as Allah (SWT)s Vicegerent on the earth. Development encompasses moral, spiritual and material development of the individual and society at large leading to maximum socio-economic welfare and the ultimate good of mankind.15 II. Law Making Process

Muslims derives laws and rules based on the primary sources prescribed in the Quran and Hadith. Guided by these two sources, the Muslim jurists further interprets, distinguishes, and formulate or derive law which are not directly decreed in the texts. The process is referred as ijma (unanimous consensus) and qiyas (opinion of the jurist) that is the secondary sources. Allah (SWT) says; He it is Who has sent down to thee the Book: in it are verses basic or fundamental (of established meaning); they are the foundation of the Book: others are not wellestablished meaning. But those in whose hearts is perversity follow the part thereof that is not of well-established meaning. Seeking discord, and searching for its interpretation, but no one knows its true meanings except Allah, and those who are firmly grounded in knowledge say: We believe in it; the whole of it is from our Lord; and none will grasp the Message except men of understanding16 Unlike other religions in this world, Islam is the only faith that does not separate its religious beliefs from the administration of a state or government, or any deed for that matter. This is due to the fact that Islam a complete religion with a complete set of rules and guidance in every aspect of life. 17 As Allah (SWT) says;18

14 15

Ahmad, Kurshed; 1980; Economic Development in an Islamic Framework; The Islamic Foundation. Hasan, Zubair (2006): Sustainable development from an Islamic Perspective: meaning implications and policy concerns. Published in: J.KAU: Islamic Economics 1 19 (2006): pp. 3-18. 16 Al-Imran, verse 7. Translation by Yusuf Ali. Quoting Ibn Abbas, Al-Khwarizmi in his Tafseer of Quran, Book 3: Al-Imran (the Family of Imran), Chapter Only Allah Knows the True Tawil of The Mustashabihat; Tafsir is of four types: Tafsir that the Arabs know in their language; Tafsir that no one is excused of being ignorant of; Tafsir that the scholars know; and Tafsir that only Allah knows. Ibn Abi Najih said that Mujahid said that Ibn Abbas said, I am among those who are firmly grounded in its Tawil interpretation. Al-Khwarizmi further stated that The Messenger of Allah supplicated for the benefit of Ibn Abbas, O Allah! Bestow on him knowledge in the religion and teach him the Tawil (interpretation). 17 Interestingly, the Federal Court of Malaysia in the case of Meor Atiqurrahman, in its judgment acknowledged the fact that Islam is not just a religion but a complete way of life. 18 There are many other verses in the Holy Quran to illustrate this, such as Al-Imran:19, 83. Al-Maidah:44. Hud:14. Al-Nahl:81

This day have I perfected your religion for you, completed my favour upon you, and have chosen for you Islam as your religion.19 Therefore, every single rule promulgated must be in line with the Shariah or Islamic law which is based on the two types of sources. Not only that, every single act of human being is judged and will either carry legal accountability or spiritual accountability. Tracing the concept of roads in Islam, shows that every rule pertaining to the development or maintenance of the roads must be paralleled to the principles enunciated in Islam. The Quran expressly provides in numerous places and a variety of contexts, of the rationale, purpose and benefit of its laws so much so that its text becomes characteristically goal-oriented, cause and benefit in the affirmative sense, evil conduct and crime which is reprimanded and made punishable, in the negative sense, in order to prevent injustice, corruption and prejudice. The underlying theme in virtually all the broad spectrum of the ahkam is realisation of benefit (maslahah) which is regarded as the summa of the maqasid. For justice is also a maslahah and so is tahdhib al-fard.20 The ulama have classified the entire range of masalih-cum-maqasid into three categories in a descending order of importance, beginning with the essential masalih, or daruriyyat, followed by the complementary benefits, or hajiyyat, and then the embellishments or tahsiniyyat. The essential interests are enumerated at five, namely faith, life, lineage, intellect and property. These are, by definition, essential to normal order in society as well as to the survival and spiritual well-being of individuals, so much so that their destruction and collapse will precipitate chaos and collapse of normal order in society.21

III.

Guidelines in Formulating Law on Construction and Maintenance of Roads

Many have thought that Islamic law or the Shariah focuses only on criminal punishments or sanctions like hudud and qisas. Some might restrict Shariah to personal laws such as matrimonial, inheritance, and custody of children. Indeed, many will be surprised to know that Islam is very concerned with the regulations pertaining to streets. It is important to keep in mind that Islam prescribes a complete way of life. This day have I perfected your religion for you, completed my favour upon you, and have chosen for you Islam as your religion.22 Shariah, therefore, governs every aspect of mens life and that includes the construction and maintenance of roads essential to create right of way. Islam acknowledges the importance of the State developing rules to ensure that the states affairs are administered and complies with the principles of Shariah and the rights of the people are protected. Allah (SWT) commands the authority to administer in accordance with the rules prescribed in the Quran and man as the Caliph is required to develop, implement and enforce the rules for the benefit of man and the Universe.
19 20

Al-Maidah, verse 3. Translation by Yusuf Ali. Mohammad Hashim Kamali, (2009) Maqasid al Shariah: The Objectives of Islamic Law, The International Institute of Islamic Thought (IIIT).
21 22

Al-Maidah: 3. Translation by Yusuf Ali.

Allah doth command you render back your Trust to those to whom they are due; and when ye judge between people that ye judge with justice; verily how excellent is the teaching which He giveth you! For Allah is He who heareth and seeth all things23 The authority has vast powers to make and impose rules for the organized administration of the State. However, with the given power, Islam imposes a strict restriction and enforces heavy responsibilities on the authority, which failure of compliance will lead to Allahs (SWT) punishments. Allah (SWT) says, And if any fail to judge by (the light of) what Allah hath revealed, they are (no better than) wrong-doers.24 In another verse, If any do fail to judge by (the light of) what Allah hath revealed, they are (no better than) Unbelievers25 Allah (SWT) cautioned the decision makers that, And this (He commands): Judge thou between them by what Allah hath revealed and follow not their vain desires, but beware of them lest they beguile thee from any of that (teaching) which Allah hath sent down to thee. And if they turn away, be assured that for some of their crimes it is Allahs purpose to punish them. And truly most men are rebellious.26 This is further endorsed by the Hadith narrated by Abu Dharr, I said to the Prophet (SAW), Messenger of Allah, will you not appoint me to a public office? He stoked my shoulder with his hand and said, Abu Dharr, thou art week and authority is a trust, and on the Day of Judgment it is a cause of humiliation and repentance except for one who fulfils its obligations and (properly) discharges the duties attendant thereon.27 Thus, at this point, it is clear that the authority has the right to regulate, in accordance with Shariah which includes the laws and regulations on street. Having looked at the nature of the responsibility entrusted upon the authority, it is only fair that the authority be given full cooperation and obedience with regards to the laws and regulations they promulgate. It is a duty of a Muslim to adhere to the laws set by the authority. There are several legal authorities to support this conception. Firstly, Allah (SWT) says; O ye who believe! Obey Allah and obey the Messenger and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger if ye do believe in Allah and the Last Day: that is best, and most suitable for final determination28 This is strengthened by a Hadith narrated by Abu Huraira in which Prophet Muhammad (SAW) said,
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An-Nisa: 58. Translation by Yusuf Ali. Al-Maidah: 45. Translation by Yusuf Ali. 25 Al-Maidah: 44. Translation by Yusuf Ali. Similar meanings can be found in Al-Maidah, verses 47. 26 Al-Maidah: 49. Translation by Yusuf Ali. 27 Sahih Bukhari and Muslim. Book 20. Hadith No. 4491. 28 An-Nisa:59. Translation by Yusuf Ali.

It is obligatory for you to listen to the ruler and obey him in adversity and prosperity, in pleasure and displeasure, and even when another person is given (rather undue) preference over you.29 Except if the laws and regulations decreed by the authority are against Allahs (SWT) legal rulings. In a Hadith narrated by Ibn Umar, Prophet (SAW) said, It is obligatory upon a Muslim that he should listen (to the ruler appointed over him) and obey him whether he likes it or not, except that he is ordered to do a sinful thing. If he is ordered to do a sinful act, a Muslim should neither listen to him nor should he obey his orders30 Therefore, the authority i.e. government has the right which is in fact, responsibility, to promulgate laws and regulations to safeguard the interest of the people, including the subject matter of this paper; the street and which laws and regulations the people are obliged to abide with. The discussion below seeks to set out the salient features that need to be incorporated in developing legislation for regulating the construction and maintenance of roads. This is mere basic guidelines and more details can be incorporated depending on the needs of a particular society. Provisions Preventing Destruction to Natural Resources in Construction of Roads It is quite clear from the discussions above that Islam is a religion which supports development but at the same time demands moderation. Islam demands the Muslims to lead a balanced life. A life in moderation (wasatiah) is enjoined on Muslims. Totally challenging development and being moderate are two different things. Moderation can be seen even in the way Allah (SWT) created all creatures as stated in Surah al-Hijr: 19; And the earth We have spread out (like a carpet); set thereon mountains firm and immovable; and produced therein all kinds of things in due balance 31 Islam is against extremism or excessiveness. As Allah (SWT) says in Surah Luqman, And be moderate in thy pace, and lower thy voice; for the harshest of sounds without doubt is the braying of the ass32 Islam avoids any act of transgressions or excessiveness as Allah (SWT) despises transgressions. In one of the earliest revelation, Allah (SWT) says; O ye who believe! Violate not the sanctity of the Symbols of Allah, nor of the Sacred Month, nor of the animals brought for sacrifice, nor the people resorting to the Sacred House, seeking of the bounty, and good pleasure of their Lord. But when ye are clear of the Sacred Precincts and of pilgrim garb, ye may hunt and let not the hatred of some people in (once) shutting you out of the Sacred Mosque lead you to transgression (and hostility on your part). Help ye one another in righteousness and piety, but help ye not one another in sin and rancor: fear Allah: for Allah is strict in punishment 33

29 30

Sahih Bukhari and Muslim, Book 20., Hadith No. 4525. Sahih Bukhari and Muslim, Book 20., Hadith No. 4533. 31 Al-Hijr:19. Translation by Yusuf Ali. 32 Surat Luqman: 19. Translation by Yusuf Ali. 33 Al-Maidah:2. Translation by Yusuf Ali.

Applying the same principle, it is just to suggest that there must be some limitations imposed on the development of roads. First and foremost, the construction of street cannot lead to excessive destruction to the environment and natural resources. The prohibition of destroying the environment is mentioned more than once in the holy Quran. Allah (SWT) reminded the believers; When he turns his back his aim everywhere is to spread mischief through the earth and destroy crops and cattle. But Allah loveth not mischief.34 Allah (SWT) despise destruction of the environment can be seen in His prohibition of destroying the surroundings and trees unnecessarily during war. Allah (SWT) says, Fight in the cause of Allah those who fight you but do not transgress limits; for Allah loveth not transgressors35 Al-Khwarizmi in his Tafseer Quran36 by quoting Al-Hasan Al-Basri whose opinion is shared with Ibn Abbas, Umar bin Abdul-Aziz, Muqatil bin Hayyan and others, commented that the term transgression indicates, includes mutilating of the dead, theft (from the captured goods), killing women, children and old people who do not participate in warfare, killing priests and residents of houses of worship, burning down trees and killing animals without real benefit37 The methodology of deriving the rulings or Usul fiqh is crucial in Islam. Under the rule of Usul fiqh, there is a methodical maxim which carries the meaning that whenever there is any contradiction between prohibition and allowance, then the prohibition shall prevail. 38 Interestingly, in providing examples on the application of the above maxim, the construction of roads, among others, was discussed. Accordingly, if a secondary public service, such as the building of the road or factory, could lead to adverse effects on public health or the environment, then such a road or factory should not be sacrificed. Thus, it is apparent that construction of roads must be within the allowed parameters such as observing the contour and not to cut through hills unnecessarily if it can be avoided. Strict observations are obligatory to preserve the environment. If one examines closely, these concepts of moderation and limitations set in development of roads despite acknowledging the importance of roads to human life, one can see that Islam observes the carrying capacity of the earth which is the core element of sustainable development. 39 As defined by the United Nations World Commission on Environment and Development (WCED) which is better known as the Brundtland Commission, sustainable development is Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs which conceptual definition is also shared with the National Commission on the Environment (NCE) of the United States. The NCE further added that Sustainable development is premised on living within the earths means 40

34 35

Al-Baqarah:205. Translation by Yusuf Ali. Al-Baqarah: 190. Translation by Yusuf Ali. 36 Al-Khwarizmi in his Tafseer of Quran, Book 2: Al-Baqarah (The Cow), Chapter: The Prohibition of Mutilating the Dead and Stealing From the Captured Goods. 37 Ibid 38 Mawil Izzi Dien, Muil Yusuf, Izz al-Din. 2004. Islamic law: from historical foundations to contemporary practice. Edinburgh: Edinburgh University Press. 39 Portney, Kent E. 2003. Taking Sustainable Cities Seriously. Massachusetts: Massachusetts Institute of Technology, p. 8 40 Ibid.

Diagram: Sustainable Development components and their interactions

Source: Adapted from Ralph Hall, Introducing the Concept of Sustainable Transport to the U.S. DOT through the Reauthorization of TEA-2141 Enduring the same attacks and allegations of being anti-growth as does Islam (as mentioned before), the author defended sustainable development to be a ideology that, sustainability is more about the search for peaceful coexistence between economic development and the environment. It is about finding ways to promote growth that are not at the expense of the environment, and that do not undermine future generations. 42 This is very much in line with Islamic teachings The Quranic verse, And the earth We have spread out (like a carpet); set thereon mountains firm and immovable; and produced therein all kinds of things in due balance 43 There are no direct statements providing for sustainable development in the Quran. However, there are Qur'anic verses describing the nature and natural phenomena outnumber verses dealing with commandments and sacraments. There are more than 6,000 verses in the Qur'an, some 750, one eighth of the Book, imposing on the believers to reflect on the importance of the study of the relationship between living organisms and their environment, to make the best use of reason and to maintain the balance and proportion God has built into His creation. Earth is mentioned about 453 times in the Quran, whereas sky and heavens are mentioned only about 320 times. However, the Muslim jurists found the basis to formulate guidelines for promoting sustainable development. 44 Although Islam does provide for construction and maintenance of roads, it sets out certain limitations on development in general. Neither the environment nor the public health shall be compromised in carrying out development. Thus, this simply means that the needs of making, or altering roads must comply with environmental protection principles. This principle is also shared by the environmentalists under the doctrine of sustainable development and the concept of carrying capacity. Syariah requires man to
41 42

http://www.uitp.org/Public-Transport/sustainabledevelopment/ accessed on 20th November 2011. Note 38 p 9. 43 Al-Hijr:19. Translation by Yusuf Ali. 44 Dr. Hasan Zillur Rahim, Ecology in Islam: Protection of the Web of Life a Duty for Muslims in Washington Report on Middle East Affairs, October 1991, p.65.

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observe the guidelines laid down, that is the spiritual contentment of man, the physical and mental well being of man, his descendants, and correct manner of dealing with property with ultimate aim of creating a healthy and virtuous individual, family, society and eventually a better universe. Street Construction and Maintenance Duty Imposed on the Government

It is unmistakable that the government or any other authorities has the power to make laws and regulations pertaining to construction and maintenance of roads. Position of street maintenance as perceived under the Shariah, and in the civil law refers to the duty of maintaining the street is imposed on the authority. However, owing to the concept of accountability and seeking Allahs pleasure, Islam offers a more comprehensive method in ensuring proper maintenance of street. The Government is imposed with the duty to manage the affairs of the State and protecting the citizens interests. The development and quality of roads in a country reflects the growth of the particular country. It is often said that the conditions of the roads in the Muslim world need improvements. Just like any other infrastructure, street condition deteriorates over time owing to wear and tear and compounded by poor maintenance poses adverse impacts on the quality of the roads. Maintenance is often harder than construction. The importance of constructing roads for use of mankind and maintaining of roads is equally important like constructing of roads. Maintenance of roads includes the act of sealing of cracks, covering pot holes, resurfacing, sealing and various types of surface treatment. Poorly maintained roads can cause injuries to the users and this is indeed something that need to be given serious attention. Islam views the responsibility imposed on the authority as an important aspect that must be enforced. Government is not only answerable to the people in this world but also answerable to Allah in the Hereafter. Although there are no specific Quranic text or Hadith on street maintenance, but one may by inference conclude that the maintenance of street shall be within the responsibility of the authority. The authority must ensure that the roads connecting people are in good condition so that the people can go to places of worship, or conduct businesses, or travel to seek knowledge in comfort. Allah instructs the Muslims to walk on the earth in search for Allahs rizk (sustenance). Allah (SWT) says; And when the Prayer is finished, then may ye disperse through the land, and seek of the Bounty of Allah: and celebrate the Praises of Allah often (and without stint): that ye may prosper45 and; It is He Who has made the earth manageable for you, so traverse ye through its tracts and enjoy of the Sustenance which He furnishes: but unto Him is the Resurrection 46 These needs must be provided and protected by the authority. They must assure that the ways towards good are enjoined. Allah (SAW) says; (They are) those who, if We establish them in the land, establish regular prayer and give regular charity, enjoin the right and forbid the wrong: with Allah rests the end (and decision) of (all) affairs47 A strong indication to support the above idea can be seen in the seriousness of Islam in preventing handicaps cause by accident. Vardit Rispler in his book underlined how Islam strives to reduce the cases
45 46

Al-Jumua: 10. Translation by Yusuf Ali. Al-Mulk: 15. Translation by Yusuf Ali. 47 Al-Hajj: 41. Translation by Yusuf Ali.

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of disability.48 Rispler is of the opinion that Islam adopts preventive measure rather than curing. This is based on the principles of hifz al-masalih and dar al-mafasid i.e. preserving good causes and preventing bad ones.49 This is indeed very true as accidents can at times cause irreparable harm and leave permanent disabilities. The verses in the Quran expressly prohibits transgression. There are a number of Hadith supporting such prohibition, for instance, Abdullah bin Yazid Al-Ansari had narrated; The Prophet (SAW) forbade robbery (taking away what belongs to others without permission) and also forbade mutilation (or maiming) of bodies50 With regards to the public or an individual, the responsibility becomes a religious duty and with no legal implication entailed. As stated in the earlier discussion, whoever helps remove an obstacle lying on the street which may be injurious will be rewarded by Allah (SWT). 51 Maintenance of Roads

Owing to the concept of accountability and seeking Allah (SWT)s pleasure, taking care or maintaining the street is a collective responsibility in Islam. Local authority does this due to its legal duty and amanah but the public, at individual level, does so to discharge his religious or spiritual duty owed to Allah (SWT). Allah (SWT) promises; There, the (only) protection comes from Allah, the True One. He is the Best to reward and the Best to give success.52 Another cause for this success is the concept of brotherhood in Islam, which again, the Civil law lacks. Brotherhood simply means that every Muslim is a brother to another Muslim and every person would want the best for his fellow brothers. To this effect, the Holy Prophet (SAW) said; A Muslim is a brother of another Muslim, so he should not oppress him, nor should he hand him over to an oppressor. Whoever fulfilled the needs of his brother, Allah will fulfill his needs; whoever brought his (Muslim) brother out of a discomfort, Allah will bring him out of the discomfort, Allah will bring him out of the discomforts of the Day of Resurrection, and whoever screened a Muslim, Allah will screen him on the Day of Resurrection53 Payment of Compensation for Injuries Arising from Poorly Maintained Roads

Payment of compensation to road users for injuries or damages suffered due to poor road conditions is an important aspect that needs to be incorporated into any proposed legislation. As analyzed from a casebased approach, damages incurred by any member of the public which is caused by the failure on the part of the authority to execute its duty properly must be compensated by that particular authority. This is in line with the Shariah. This can easily be deduced form the strictness of Islam in its effort of eliminating all possible causes of disability. Islam in this aspect has adopted preventive measure and ruled that every law pertaining to street regulations must be strictly adhered to. The protection of life which includes limbs is one of the five purpose of the Shariah, the maqasid al-Syariah.
48 49

Chaim, Vardit Rispler. 2007. Disability in Islamic Law. The Netherland: Springer. Ibid. 50 Sahih Bukhari. Volume 3, Book: Oppression. Hadith No. 654. 51 Refer note 9. 52 Al-Kahf: 44. Translation by Yusuf Ali. 53 Narrated by Abdullah bin Umar; Sahih Buhkari, Volume 3, Book: Oppression, Hadith No. 622.

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Establishing of Institutions for Administering, Implementing and Enforcing of Regulations

Islam promotes the system of Caliphate, established based on Shariah law as the best system of government to prevent oppression. Shariah law, according to Muslim jurists, fulfills the criteria of justice and legitimacy and binds governed and governor alike. Because it is based on the rule of law and thus deprives human beings of arbitrary authority over other human beings, the caliphate system was considered superior to any other. 54 In espousing the rule of law and limited government, classical Muslim scholars embraced core elements of modern democratic practice. Limited government and the rule of law are two important aspects of government.55 Democracys moral power lies in the idea that the citizens of a nation are the sovereign, and in modern representative democracies people can elect their representatives not merely leaders. In a democracy, the peoples fundamental rights must be given protection to ensure their well-being and interests of the individual members are guaranteed. Government must establish institutions for administering, implementing and enforcing of law to provide a balanced system. Islam also recognizes the establishment of institutions and delegation of powers in implementing and enforcing law. This can be seen in the practice of the Prophet (SAW) sending diplomats in representing him. Any act which is not against the Shariah and that might bring good to the people is not only allowed but encouraged in Islam. A legal maxim al-umur bi maqasidiha which means matters are determined according to intention implies that delegation based on the right intention is allowed in Islam. This legal maxim is formed based on a Hadith narrated by Narrated by Bukhari and Muslim, narrated that Umar b. al-Khattab that the Prophet (SAW) said: Deeds are [a result] only of the intentions [of the actor], and an individual is [rewarded] only according to that which he intends. Therefore, whosoever has emigrated for the sake of Allah and His messenger, then his emigration was for Allah and His messenger. Whosoever emigrated for the sake of worldly gain, or a woman [whom he desires] to marry, then his emigration is for the sake of that which [moved him] to emigrate." 56 The persons delegated with the power is also expected to be accountable for their acts and consequences arising from wrongful exercise of powers. The concept of accountability is emphasized in Islam. This is because in Islam, the final or primary accountability rests with Allah, (SWT). Enforcement of law and conflict resolution is given utmost importance. Regulating Professionals Involved in the Construction and Maintenance Sector

The professionals involved in the construction and maintenance of roads must also be provided with guidelines on the conduct of their work that is expected to be carried out in accordance with the required professional standards. Muslims actions are required to tie in with their intention ( niyyah), however, the intention must be right to arrive at the true goal. Prophet Muhammad (saw) said: a mans action is according to his intention.57 Any person involved in planning, construction and maintenance must ensure that his activities are organised strategically to comply with principles of Shariah to achieve pleasure of God (mardatillah). A planner must not plan with intention solely to derive profit at the expense of the community and the environment, as this can cause lack of safety of the people and degrade environmental protection. God will punish the person severely for the bad intention ( mala fide). He must remember that
54

Khaled Abou El Fadl, Islam and the Challenge of Democracy , Originally published in the April/May 2003 issue of Boston Review, internet edition accessed from http://bostonreview.net/BR28.2/abou.html on 10th January 2012 55 Ibid 56 Imam Nawawis Forty Hadith, Hadith No.1 57 ibid

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he is planning for Gods vicegerent (insan khalifah) and not solely for material gain. The public interest aspect requires all persons involved in designing, constructing and maintaining the roads, to ensure all measures for preventing harm are taken into consideration. This is essential to prevent injury to the users of the roads. IV. Conclusion Allah (SWT) proclaimed that the Muslims are the best of people (ummah). In Surah Ali Imran:110 it is expressed that, Ye are the best of people, evolved for mankind, enjoining what is right, forbidding what is wrong, and believing in Allah...58 To the believer the truth in the above verse is permanently embedded in their soul for their faith in the Quran has always been unquestionable. Apart from the above genuine faith, many of the Muslims however, were wondering about the real application of the above verse. This is especially so whenever they were making literal comparison on their actual socio-economic status vis--vis their non-Muslim neighbors. To a great majority of Muslims, the best in its broadest connotation is indeed very far from reality. More than half of the world Muslims population for instance, are still plagued with poverty and lived in sub-standard living condition. These issues seem to be an inherited phenomenon of most part of the Muslim world. On reflecting the roles and obligations of Muslim government authorities, in various capacities, it is no doubt that the Muslims are faced with a formidable task of developing the Ummahs well being. Muslims are often made to believe that Islamic law is very limited and its not easy to derive law ordinarily. Hence, many Muslim nations prefer to adopt the proven models of the Western law ever since the models were introduced by the colonialists who had managed to implant the Western legal system. Muslims are beginning to realize that most of these models failed to meet the holistic needs of Muslims, and had persistently proven to be unsustainable. It is no doubt that as Muslims we have our own models for development, but apart from the beautiful concepts that we had been promoting we are still unable to come up with a comprehensive models to implement the Islamic principles. Options are available to the Muslims that can be continuously refined in line with the development of the societys needs without neglecting the fundamental requirements as set out in the maqasid al-Shariah.59 The Muslims must remember that Islamic civilization has so much to offer and its incumbent on the Muslims to conduct research to identify the suitable models that could be implemented in the modern world at par with the Western models.

58 59

Abdullah Yusuf Ali, 1989, The Meaning of the Holy Quran 4th Edn p.155. Mohd I. Ansari , Sustainable Development in Islam, The American Journal of Islamic Social Sciences 11:3,pp.394-402,http://i-epistemology.net/attachments/406_V11N3%20Fall%2094%20-%20Ansari%20-%20 Islamic%20 Perspectives%20on%20Sustainable%20Development.pdf; Asyraf Wajdi Dusuki and Nurdianawati Irwani Abdullah, Maqasid al-Shari`ah, Maslahah, and Corporate Social Responsibility Maqasid al-Shari`ah, Maslahah, and Corporate Social Responsibility, The American Journal of Islamic Social Sciences 24:1 pp. 25-45, http://i-epistemology.net/attachments/916_ajiss24-1-stripped%20-%20Dusuki%20and%20Abdullah%20%20Maqasid%20Al-Syariah.pdf

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