Sharia

Sharia
Not to be confused with Shahriyār.

Sharia law, (Arabic: شريعة‎ šarīʿah, IPA: [ʃaˈriːʕa], "way" or "path") also shariah, sharīʿah,[1] is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to questions not directly addressed in the primary sources by including secondary sources. These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Quran and Sunnah through qiyas. Shia jurists prefer to apply reasoning ('aql) rather than analogy in order to address difficult questions.

Muslims believe sharia is God's law, but they differ as to what exactly it entails.[2] Modernists, traditionalists and fundamentalists all hold different views of sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries, societies and cultures have varying interpretations of sharia as well.

Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. Where it has official status, sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of sharia; while the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader.

The reintroduction of sharia is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g., in India) have maintained institutional recognition of sharia to adjudicate their personal and community affairs. In western countries, where Muslim immigration is more recent, Muslim minorities have introduced sharia family law, for use in their own disputes, with varying degrees of success e.g., Britain's Muslim Arbitration Tribunal. Attempts to impose sharia have been accompanied by controversy,[3][4][5] violence,[6][7][8][9][10][11] and even warfare (cf. Second Sudanese Civil War).[12][13][14][15]

Contents

Etymology

Countries with sharia.

In The Spirit of Islamic Law, Professor Bernard G. Weiss[clarification needed] stated "In archaic Arabic, the term sharì'a means "path to the water hole". When we consider the importance of a well-trodden path to a source of water for man and beast in the arid desert environment, we can readily appreciate why this term in Muslim usage should have become a metaphor for a whole way of life ordained by God."[16]

In Understanding Islamic Law: From Classical to Contemporary, Professor Irshad Abdal-Haqq[clarification needed] stated "Shar'iah, or more properly Al-Shari'ah, literally means the pathway, path to be followed, or clear way to be followed, and has come to mean the path upon which the believer has to tread. In original usage Shar'iah meant the road to the watering place or path leading to the water, i.e., the way to the source of life. The technical application of the term as a reference to the law of Islam is traced directly to the Quran, wherein the adherents of Islam, the believers, are admonished by Allah (God) to follow the clear and right way, the path of Shari'ah: Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not[Quran 45:18]."[17]

According to Abdul Mannan Omar in his Dictionary of the Holy Quran, the word at 45:18 (see Abdal-Haqq above) derives from the "Quranic root" shara'a. Derivations include: Shara'a (as prf. 3rd. p.m. sing.), meaning "He ordained", appearing once in the Quran at verse 45:13; Shara'u (prf. 3rd. p.m. plu.) "They decreed (a law)" appearing once at 42:21; Shir'atun (n.) "Spiritual law", used at 5:48; finally, Shariatun (act. 2nd. pic. f. sing.) "System of Divine Law, Way of Belief and Practice" is used at 45:18.[18]

Definitions and descriptions

Sharia has been defined as:

  • "Muslim or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and moral. The custom-based body of law based on the Quran and the religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are law, the latter distinguished by Islam and Muslims in their application, as sharia or sharia law."[19]
  • "a discussion on the duties of Muslims," —Hamilton Alexander Rosskeen Gibb[20]
  • "a long, diverse, complicated intellectual tradition," rather than a "well-defined set of specific rules and regulations that can be easily applied to life situations," —Hunt Janin and Andre Kahlmeyer[21]
  • "a shared opinion of the [Islamic] community, based on a literature that is extensive, but not necessarily coherent or authorized by any single body" —Knut S. Vikor[22]

From the 9th century, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.[23] Through succeeding centuries and empires, the balance between the ulema and the rulers shifted and reformed, but the balance of power was never decisively changed.[24] At the beginning of the nineteenth century, the Industrial Revolution and the French Revolution introduced an era of European world hegemony that included the domination of most of the lands of Islam.[25][26] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires.[27] The wide variety of forms of government, systems of law, attitudes toward modernity and interpretations of sharia are a result of the ensuing drives for independence and modernity in the Muslim world.[28][29]

Traditional perspectives

The majority of Muslims regard themselves as belonging to either the Sunni or Shi'a sect of Islam. Within these sects, there are different schools of religious study and scholarship. The schools within each sect have common characteristics, although each differs in its details.

Sunni

Main article: Sunni

In addition to the "Basic Code" of the Quran and Sunnah, traditional Sunni Muslims also add the consensus (ijma) of Muhammad's companions (sahaba) and Islamic jurists (ulema) on certain issues. In situations where no concrete rule exists in the sources, law scholars use qiyas — various forms of reasoning, including analogy, to derive law from the essence of divine principles and preceding rulings. The consensus of the community, public interest, and other sources are used as an adjunct to sharia where the primary and secondary sources allow.[30] This description can be applied to the major schools of Sunni fiqh, which include the Hanafi, Shafi'i, Maliki and Hanbali. The Zahiri madhhab, though small, is often considered a Sunni school of thought as well.[31] The Salafi movement also looks to the actions and sayings of the first three generations of Muslims for guidance, in addition to the Quran and Sunnah, attracting followers from many Muslim cultures and schools of fiqh.[32]

Shi'a

Main article: Shi'a

Shi'a Muslims also extend the "Basic Code" with fiqh, and in some aspects reject analogy. At the same time, they believe Islam was long designed to meet today's innovations and culture. During the period after Prophet's death, Sunni scholars developed, at the same time the Shi'a Imams were alive teaching and spreading the original message of Islam. Since the twelve Imams are descendants of the Prophet's family, Shi'a believe they have a greater right on leadership and spreading the message of Islam, as a result Shi'a view them as an extension of the original Sunnah taught by the Prophet himself. A recurring theme in Shi'a jurisprudence is logic (mantiq),[33] something most Shi'a believe they mention, employ and value to a higher degree than most Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Quran and Sunnah.

In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Quran, anecdotes of Muhammad's practices and those of The Twelve Imams, and the intellect ('aql). The practices called Sharia today, however, also have roots in comparative law[34] and local customs (urf).[30]

Most Shia Muslims follow the Ja'fari school of thought.[35]

Modern perspectives

Muslims have responded in a variety of ways to the forces of modernity. These responses cross the lines of tradition, sect and school. They affect the way sharia is interpreted by individuals in their personal lives, and the extent to which sharia is implemented in the public sphere by the state. These diverse movements can be referred to collectively as contemporary sharia(s).[36]

Spectrum of Muslim legal systems

The legal systems in 21st century Muslim majority states can be classified as follows:

Sharia in the secular Muslim states: Muslim countries such as Mali, Kazakhstan and Turkey have declared themselves to be secular. Here, religious interference in state affairs, law and politics is prohibited.[37] In these Muslim countries, as well as the secular West, the role of sharia is limited to personal and family matters.

The Nigerian legal system is based on English Common Law and the constitution guarantees freedom of religion and separation of church and State. However eleven northern states have adopted sharia law for those who practice the Muslim religion.[38]

Muslim states with blended sources of law: Muslim countries including Pakistan, Indonesia, Afghanistan, Egypt, Sudan, Morocco and Malaysia have legal systems strongly influenced by sharia, but also cede ultimate authority to their constitutions and the rule of law. These countries conduct democratic elections, although some are also under the influence of authoritarian leaders. In these countries, politicians and jurists make law, rather than religious scholars. Most of these countries have modernized their laws and now have legal systems with significant differences when compared to classical sharia.[39]

Muslim states using classical sharia: Saudi Arabia and some of the Gulf states do not have constitutions or legislatures. Their rulers have limited authority to change laws, since they are based on sharia as it is interpreted by their religious scholars. Iran shares some of these characteristics, but also has a parliament that legislates in a manner consistent with sharia.[40]

Factors influencing the modern role of sharia

Against the backdrop of differing religious sects, scholarship, classical schools of thought, and governmental implementations, the following forces are at work influencing future developments in sharia law.

Rapid exchange of cultures and ideas

Around the world, Muslims are becoming more connected by the Internet and modern communications. This is leading to wider exchanges of ideas and cultures. Reactionary and fundamentalist movements are unlikely to halt this trend, as the sharia itself defends the right to privacy within the home.[41]

Schools of thought

Legal scholar L. Ali Khan claims that "the concept of sharia has been thoroughly confused in legal and common literature. For some Muslims, sharia consists of the Quran and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define sharia as law based upon the Quran, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of sharia lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Quran and the Sunnah. The Quran and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to dissipate confusion around the term sharia."[42]

Revival of the religion

Simultaneously with liberalizing and modernizing forces, trends towards fundamentalism and movements for Islamic political power are also taking place. There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.[43]

A return to traditional views of sharia: There is a long-running worldwide movement underway by Muslims towards a better understanding and practice of their religion. Encouraged by their scholars and imams, Muslims have moved away from local customs and culture, and towards more universally accepted views of Islam. This movement towards traditional religious values served to help Muslims cope with the effects of European colonization. It also inspired modernist movements and the formation of new governments.[44]

The Islamist movement: Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia within their own borders, their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.[45] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey's secular government.[45] These movements can be considered neo-Sharism.[46]

The Fundamentalist movement: Fundamentalists, wishing to return to basic religious values and law, have in some instances imposed harsh sharia punishments for crimes, curtailed civil rights, and violated human rights. These movements are most active in areas of the world where there was contact with Western colonial powers.[47]

Extremism: Extremists have used the Quran and their own particular version of sharia[48] to justify acts of war and terror against Western individuals and governments, and also against other Muslims believed to have Western sympathies. [49] Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.[50]

Immutability of God's will

Although there are many different interpretations of sharia, and differing perspectives on each interpretation, there is consensus among Muslims that sharia is a reflection of God's will for humankind. Sharia must therefore be, in its purest sense, perfect and unchanging.[51] The evolution or refinement of sharia is an effort to reflect God's will more perfectly.[52]

Distinction between sharia and customary law

According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high ranking religious authorities have stated the opposite." Otto's analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.[53]

Characteristics

Origins

According to Muslims, sharia law is founded on the words of Allah as revealed in the Quran, and traditions gathered from the life of the Prophet Muhammad. Muhammad was born ca. 570 CE in Mecca, a trading city in the Arabian desert. In addition to being a center of trade on the caravan routes, Mecca was a place of pilgrimage for Arabs of many beliefs.[54] The focus of religion in Mecca was the Ka'aba, a stone building believed to have been built by Adam at the beginning of time, and rebuilt by the Prophet Abraham and his son Ishmael.[55]

Mecca was inhabited by the Quraysh, a mostly pagan tribe with some Jews and Christians among them. Muhammad was orphaned at an early age, and came under the protection of an uncle. He grew up to become a trader and married his employer, a prosperous merchant named Khadija.[56] It was in middle age that Muhammad began to speak of revelations received from Allah through the angel Gabriel. Muhammad told others of his revelations, and attracted followers who transcribed them onto available materials.[57] Over the twenty three years from his first revelation until his death, Islam became the dominant force in the Arabian peninsula and Somalia, and a serious challenge to the Byzantine and Sasanian empires.[58] After Muhammad's death, the revelations were collected and organized into the Quran, and accounts of his life eventually formed the basis for the Sunnah.

In pre-Islamic Arabia, bonds of common ancestry formed the basis for tribal association.[59] The advent of Islam brought the tribes together under a single religion. As Islam is not just a religion, but also a complete way of life, a new common basis of law and personal behavior (Sharia) began to take shape.[60]

Sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44), during which time many questions were brought to the attention of Muhammad's closest comrades for consultation.[61] During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.[61] Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.

Among the Muslims, tribal laws were adapted to conform to sharia "for they could not form part of the tribal law unless and until they were generally accepted as such."[59] Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that "to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations."[59] So, while "each and every law must be rooted in either the Qur'an or the Sunnah,"[62] without contradiction, tribal life brought about a sense of participation. Such participation was further reinforced by Muhammad who stated, "My community will never agree in error".[62]

Fiqh

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Islamic jurisprudence

The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[63] Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi'i (767–820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Quran and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.[64]

A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.[65][66][67][68]

Categories of human behavior

Fiqh classifies behavior into the following types or grades: fard (obligatory), mustahabb (recommended), mubah (neutral), makruh (discouraged), and haraam (forbidden). Every human action belongs in one of these five categories.[69]

Actions in the fard category are those required of all Muslims. They include the five daily prayers, fasting, articles of faith, obligatory charity, and the hajj pilgrimage to Mecca.[69]
The mustahabb category includes proper behavior in matters such as marriage, funeral rites and family life. As such, it covers many of the same areas as civil law in the West. Sharia courts attempt to reconcile parties to disputes in this area using the recommended behavior as their guide. A person whose behavior is not mustahabb can be ruled against by the judge.[70]
All behavior which is neither discouraged nor recommended, neither forbidden nor required is of the Mubah; it is permissible.[69]
Makruh behavior, while it is not sinful of itself, is considered undesirable among Muslims. It may also make a Muslim liable to criminal penalties under certain circumstances.[70]
Haraam behavior is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Quran. Certain Muslim dietary and clothing restrictions also fall into this category.[69]

The recommended, neutral and discouraged categories are drawn largely from accounts of the life of the Islamic Prophet Muhammad. To say a behavior is sunnah is to say it is recommended as an example from the life and sayings of Muhammad. These categories form the basis for proper behavior in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.[69]

Topics of Islamic law

Sharia law can be organized in different ways:

Sharia can be divided into five main branches:

  1. ibadah (ritual worship)
  2. mu'amalat (transactions and contracts)
  3. adab (morals and manners),
  4. i'tiqadat (beliefs)
  5. 'uqubat (punishments).

"Reliance of the Traveller", an English translation of a fourteenth century CE reference on the Shafi'i school of fiqh written by Ahmad ibn Naqib al-Misri, organizes sharia law into the following topics:

  1. Purification
  2. Prayer
  3. Funeral prayer
  4. Taxes
  5. Fasting
  6. Pilgrimage
  7. Trade
  8. Inheritance
  9. Marriage
  10. Divorce
  11. Justice

In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.

Purification

In Islam, purification has a spiritual dimension and a physical one. Muslims believe that certain human activities and contact with impure animals and substances cause impurity. Classic Islamic law details how to recognize impurity, and how to remedy it. Muslims use water for purification in most circumstances, although earth can also be used under certain conditions. Before prayer or other religious rituals, Muslims must clean themselves in a prescribed manner. The manner of cleansing, either wudhu or ghusl, depend on the circumstances. Muslims' cleaning of dishes, clothing and homes are all done in accordance with stated laws.[71][72]

Prayer

Muslims are enjoined to pray five times each day, with certain exceptions. These obligatory prayers, salat, are performed during prescribed periods of the day, and most can be performed either in groups or by oneself. There are also optional prayers which can be performed, as well as special prayers for certain seasons, days and events. Muslims must turn to face the Kaaba in Mecca when they pray, and they must be purified in order for their prayers to be accepted. Personal, informal prayer and invocation is practiced as well. Classic Islamic law details many aspects of the act of prayer, including who can pray, when to pray, how to pray, and where to pray.[73][74]

Funeral prayer

Muslims are encouraged to visit those among them who are sick and dying. Dying Muslims are reminded of God's mercy, and the value of prayer, by those who visit them. In turn, the visitors are reminded of their mortality, and the transient nature of life. Upon death, the Muslim will be washed and shrouded in clean, white cloth. A special prayer, Janazah, is performed for the deceased, preferably by the assembled Muslim community. The body is taken to a place which has ground set aside for the burial of Muslims. The grave is dug perpendicular to the direction of Mecca, and the body is lowered into the grave to rest on its side, with the face turned towards Mecca. Classic Islamic law details visitation of the ill, preparation of the dead for burial, the funeral prayer and the manner in which the Muslim is buried.[75]

Alms

All Muslims who live above the subsistence level must pay an annual alms, known as zakat. In the modern sense, this would be Islam's equivalent to US Social Security or UK National Insurance. This is not charity, but rather an obligation owed by the eligible Muslim to the poor of the community. The amount is calculated based on the wealth of the Muslim. There is no fixed rate stated in Quran; but the generally practiced rate is 2.5 percent. Eligibility and total payable varies; depending on the type and quantity of wealth being assessed.[76] If the Government wishes to create a comprehensive and robust welfare state, the rate can be increased. Wealth includes savings, jewelry and land. Classic Islamic law details the tax, how it is assessed, its collection, and its distribution.[77][78]

Fasting

During the Islamic month of Ramadan, Muslims abstain from food, drink, and sex between dawn and sunset. Exceptions to this obligation are made for children who are pre-pubescent, the infirm, travelers, and pregnant women.[79] During Ramadan, the daylight hours will often begin and end with a large meal. After dinner, many Muslims participate in special communal prayers held during Ramadan. The end of Ramadan fasting is celebrated with special prayers, gatherings of family and friends, and specially prepared meals. Muslims may also fast on other special days of the year, and to make up for missed days of fasting. Classic Islamic law details the exact definition of the fast, the times of fasting, how a fast may be broken, who must fast, and permitted exceptions to the fast.[80][81]

Pilgrimage

At least once in each Muslim's lifetime, they must attempt a visit to the Holy Places of Islam located in Mecca, Saudi Arabia. The focus of this journey is the Kaaba, a small rectangular building around which a huge mosque has been built. This pilgrimage, known as the Hajj, begins two months after Ramadan each year. Dressed in symbolically simple clothing, Muslim pilgrims circle the Kaaba seven times, often followed by a drink from a special stream. Next, a symbolic search for water is performed by travelling back and forth between two nearby peaks. On the eighth day of the month, the pilgrims travel to Mina in the desert and spend the night in tents. The following day, over two million Muslims gather on the slopes of Mount Arafat, where the afternoon is spent in prayer. The Feast of Sacrifice, celebrated by Muslims worldwide, is performed by pilgrims in Mina the next day, and includes the slaughter of an animal. Finally, the pilgrims perform a ritual Stoning of the Devil by tossing pebbles at three pillars. Classic Islamic law details the manner in which the pilgrim dresses, behaves, arrives, departs and performs each of these rituals.[82][83]

Trade

Islamic law recognizes private and community property, as well as overlapping forms of entitlement for charitable purposes, known as waqf or trusts. Under sharia law, however, ownership of all property ultimately rests with God; while individual property rights are upheld, there is a corresponding obligation to share, particularly with those in need.[84] The laws of contract and obligation are also formed around this egalitarian Quranic requirement, prohibiting unequal exchanges or unfair advantage in trade. On this basis, the charging of interest on loans is prohibited, as are other transactions in which risks are borne disproportionately to the potential returns between parties to a transaction. The limits on personal liability afforded by incorporation are seen as a form of usury in this sense, as is insurance. All these inequities in risk and reward between parties to a transaction, known collectively as riba, are prohibited.[85] For this reason, Islamic banking and financing are partnerships between customers and institutions, where risk and reward are distributed equitably. Partnerships, rather than corporations, are the key concept in collective Islamic business. Financing and investments are accomplished in this manner, as purchases and resales, with equity shifting over time between the institution and the client as payments are made or returns are recognized. Conversely, no individual is shielded from the consequences of poor judgement or bad timing.[86] The Islamic financial and investment models have taken root in the West and begun to flourish, even as the financial underpinnings of large Western corporations collapse under the weight of unevenly distributed risks.[87][88] Classic Islamic law details the manner of contracting, the types of transactions, the assignment of liability and reward, and the responsibilities of the parties in Islamic trade.[89]

Inheritance

The rules of inheritance under sharia law are intricate, and a female's portion is generally half the amount a male would receive under the same circumstances.[90] Up to one third of a person's property may be distributed as bequests, or wasiyya, upon their death. After debts are settled, the remainder of the estate will be divided among the family of the deceased according to the rules of inheritance, or irth.[91] In Islamic societies, inherited wealth and property do not easily accumulate to, or remain in, certain families. Large concentrations of property will be divided into smaller portions over time among male inheritors. Property will tend to flow to other families as female inheritors take their shares into their marriages.[92] Classic Islamic law details the division of property, the shares family members are entitled to, adjustments and redistributions in the shares, orders of precedence among inheritors, and substitution among inheritors.[93]

Marriage

Main articles: Islamic marital jurisprudence, Talaq, and Nikah

The laws governing Islamic marriage vary substantially between sects, schools, states and cultures. The following outline is general in nature.

There are two types of marriage mentioned in the Quran: nikah and nikah mut'ah. The first is more common; it aims to be permanent, but can be terminated by the husband in the talaq process, or by the wife seeking divorce using khul'.

In nikah the couples inherit from each other. A dowry known as mahr is given to the bride, a legal contract is signed when entering the marriage, and the husband must pay for the wife's expenses. For the contract to be valid there must be two witnesses under Sunni jurisprudence. There is no witness requirement for Shia contracts. In Sunni jurisprudence, the contract is void if there is a determined divorce date in the nikah, whereas, in Shia jurisprudence, nikah contracts with determined divorce dates are transformed into nikah mut'ah.

Under Shia jurisprudence, nikah mut'ah is the second form of marriage. It is "Haram" in Sunni Islam according to Muslim scholars. It is a fixed-term marriage, which is a marriage with a preset duration, after which the marriage is automatically dissolved. Traditionally the couple does not inherit from each other, the man usually is not responsible for the economic welfare of the woman, and she usually may leave her home at her own discretion. Nikah mut'ah does not count towards the maximum of four wives the Quran allows to Muslim men. The woman is still given her mahr dowry, and the woman must still observe the iddah, a period of five months at the end of the marriage where she is not permitted to remarry in the case she may have become pregnant before the divorce took place. This maintains the proper lineage of children. There is controversy about the Islamic legality of this type of marriage since the Prophet Muhammad is said by Sunnis to have prohibited the practice after having temporarily allowed it.

A third type of marriage contract, known as misyar, is emerging in Sunni Islam. This marriage is not for a fixed period of time like nikah mut'ah, but is similar in other respects including lack of inheritance, lack of financial responsibility and freedom of movement on the part of the wife. In misyar marriage, the couple need not cohabit. There is lots of controversy regarding this form of marriage.

Muslims do, on occasion, marry according to urf, or local custom, without following the requirements set forth in sharia law. This may be done for various reasons, such as an inability of the couple to obtain permission from the bride's guardian. In these cases, they may find their marriage to be unrecognized at a later point, and have difficulty availing themselves of legal remedies under sharia.

Requirements for Islamic Marriages:

  • The man who is not currently a fornicator may marry only a woman who is not currently a fornicatress or a chaste woman from the people of the Book (jews, christians, and muslims).
  • The woman who is not currently a fornicatress may marry only a man who is not currently a fornicator.
  • The fornicator may marry only a fornicatress.
  • The Muslim woman may marry only a Muslim man.
  • Permission for a virgin female to marry must be given by her guardian, usually her father.
  • Any Muslim woman may demand her guardian marry her to a Muslim male, provided he is suitable. If the guardian refuses, a judge will effect the marriage.[94]
  • The father, or in some cases the paternal grandfather, may choose a suitable partner for a virgin girl.[95]
  • The guardian may not marry the divorced woman or the widow if she did not ask to be married.
  • Without the permission of the girl an Islamic marriage is considered invalid.
  • It is obligatory for a man to give bride wealth (gifts) to the woman he marries – "Do not marry unless you give your wife something that is her right."[96]
Polygamy

In sharia law, a Muslim man is permitted up to four wives under the rules for nikah. All wives are entitled to separate living quarters at the behest of the husband and if possible. All should receive equal attention, support, treatment and inheritance. In modern practice, it is uncommon for a Muslim man to have more than one wife; if he does so, it is often due to the infertility of his first wife. The practice of polygamy has been regulated or abolished in some Muslim states.[97][98]

Historically, Muslim rulers have often remarried the wives of their conquered opponents in order to gain ties of kinship with their new subjects. In these cases, the wives of leaders have sometimes numbered in the tens or even hundreds. In Ottoman Turkey, the practice also filtered down to the aristocracy. This became the basis for the Western image of a powerful, wealthy Muslim with a vast harem.[99]

Divorce

The laws governing divorce vary substantially between sects, schools, states and cultures. The following outline is general in nature.

A marriage can be terminated by the husband in the talaq process, or by the wife seeking divorce through khul'. Under faskh a marriage may be annulled or terminated by the qadi judge.

Men have the right of unilateral divorce under classical sharia. A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her, however a Shia divorce also requires four witnesses.[100] Upon divorce, the husband must pay the wife any delayed component of the dower. If a man divorces his wife in this manner three times, he may not re-marry her unless she first marries, and is subsequently divorced from, another man. Only then, and only if the divorce from the second husband is not intended as a means to re-marry her first husband, may the first husband and the woman re-marry.[Quran 2:230]

In practice, unilateral divorce is only common in a few areas of the Islamic world. It is much more common for divorces to be accomplished by mutual consent.[100]

If the wife asks for a divorce and the husband refuses, the wife has a right, under classical sharia, to divorce by khul'. Although this right is not recognized everywhere in Islam, it is becoming more common. In this scenario, the qadi judge will effect the divorce for the wife, and she may be required to return part, or all, of her dowry.[100]

Under faskh, a qadi judge can end or annul a marriage.[100] Apostasy, on the part of the husband or wife, ends a Muslim marriage in this way. Hardship or suffering on the part of the wife in a marriage may also be remedied in this way. This procedure is also used to annul a marriage in which one of the parties has a serious disability.[101]

Except in the case of a khul' divorce initiated by a woman, the divorced wife generally keeps her dowry from when she was married. A divorced woman is given child support until the age of weaning. The mother is usually granted custody of the child.[102] If the couple has divorced fewer than three times (meaning it is not a final divorce) the wife also receives spousal support for three menstrual cycles after the divorce, until it can be determined whether she is pregnant. Even in a threefold divorce, a pregnant wife will be supported during the waiting period, and the child will be supported afterwards.[103]

Child custody

In a divorce, the child will stay with its mother until it is weaned,[104] or until the age of discernment, when the child may choose whom it lives with. The age of discernment is seven or eight years.[104]

Justice

The concept of justice embodied in sharia is different from that of secular Western law.[105] Muslims believe the sharia law has been revealed by God. In Islam, the laws that govern human affairs are just one facet of a universal set of laws governing nature itself. Violations of Islamic law are offenses against God and nature, including one's own human nature. Crime in Islam is sin. Whatever crime is committed, whatever punishment is prescribed for that crime in this world, one must ultimately answer to God on the Day of Judgement.[105]

Legal and court proceedings

Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law. Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and there is no jury system (as is found in civil law in countries such as Russia and France). There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents[106][107][108] under the principle of stare decisis,[109] and unlike civil law, sharia does not utilize formally codified statutes[110] (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle). Instead of precedents and codes, sharia relies on jurists' manuals and collections of non-binding legal opinions, or hadith, (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.

There are three categories of crimes in sharia law, qisas, hudud, and tazir. Qisas involves personal injury and has several categories: intentional murder (first-degree), quasi-intentional murder (second-degree), unintentional murder (manslaughter), intentional battery, and unintentional battery. A qisas offense is treated as a civil case rather than an actual criminal case. If the accused party is found guilty, the victim (or in death, victim's family) determines the punishment, choosing either retribution (qesas-e-nafs), which means execution in the case of intentional murder, imprisonment, and in some cases of intentional battery, the amputation of the limb that was lost; or compensation (diyya) for the loss of life/limb/injury. The sharia judge (or, in modern sharia systems like those of Iran or Iraq, the state) can convict for and legally punish only qesas crimes on his own authority. However, the state itself may prosecute for crimes committed alongside the qisas offense. If the victim's family pardons the criminal, in addition to the sharia punishment he would normally receive a tazir prison sentence (such as ten to twenty years in prison) for crimes such as "intentional loss of life", "tazir assault and battery" "disturbance of the peace", and so forth.

The second category of crimes is hudud (or hadd). Hudud crimes are crimes whose penalties were laid down by the Quran, and are considered to be "claims against God". The hudud crimes are:

  • adultery (zina), which includes adultery, fornication, incest/pedophilia, rape, and pimping
  • apostasy/blasphemy
  • defamation (meaning false accusation of any of these things)
  • sodomy/lesbianism (or sodomy rape)
  • theft
  • use of intoxicants (alcohol/drug use)
  • "waging war against God and society" (hirabah, uniquely known as moharebeh/mofsed-e-filarz in Iran: armed robbery, terrorism, armed violence)

Hudud penalties for these cases are not punishments tailored to the offense, but are intended to be deterrents, setting an example for the general public and prosecuting the most flagrant violations. The process is extremely exacting: at least two witnesses are required to corroborate the evidence, with four witnesses required in the case of sex crimes, so that in most such cases the most severe penalties are difficult, if not impossible, to impose. Circumstantial evidence is not allowed to be part of the testimony. When the severest penalties are imposed, the case is usually so obvious, obscene or flagrant that conviction is virtually inevitable.

Very often, Westerners mistake hudud punishment for the punishment regularly given under sharia law, but that is inaccurate;[dubious – discuss] hudud punishments are only meant as a deterrent for rare cases. Most punishments are given under tazir rules.

As a result most countries do not prosecute hudud offenses (the exceptions being Saudi Arabia and Afghanistan under the Taliban, which regularly managed to prosecute offenses in the hudud manner) Almost all other countries, such as Iran, would usually punish the same offense as a tazir crime.

The third category of crimes is tazir. It covers all other offenses not mentioned already. It is a "claim of the state" and it receives a discretionary sentence. The punishment may not be more severe than the punishment of a hudud crime. It can range, depending on the crime or circumstances, from death to imprisonment to even community service. Circumstantial evidence is allowed, and most countries prosecute their crimes as tazir crimes, due to the flexibility of the evidence-gathering and sentencing. The punishment is meant to fit the crime. For example, a rapist may not be able to be prosecuted for zina, but would still be convicted of tazir rape, or in theft, they would be found guilty of tazir theft and given prison time rather than amputation. A murderer would still spend time in prison if he had received the forgiveness of the family. The heavy hudud penalties of amputation and stoning are not applied (although some countries do use corporal punishment). Most modern countries such as Iran have a fixed penal code that regulate what sentences should be given depending on the crime and circumstances of the case.

The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.[111][112] A confession, an oath, or the oral testimony of a witness are the main evidence admissible in a hudud case, written evidence is only admissible when deemed reliable by the judge, i.e., notaries.[113] Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character; testimony to establish the crime of adultery, or zina must be from four direct witnesses.[114] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.[115] Testimony from women is given only half the weight of men,[citation needed] and testimony from non-Muslims may be excluded altogether (if against a Muslim).[citation needed] Non-Muslim minorities, however, could and did use sharia courts, even amongst themselves.[116][not in citation given]

Sharia's rules on written evidence necessarily diminish the utility of written contracts to structure economic relations, and Timur Kuran has noted the predominance of a "largely oral contracting culture" in pre-modern Islamic society.[117]

In lieu of written evidence, oaths are accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.[118] Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often "maintain their testimony 'right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case."[119] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[119] instead oaths are a solemn procedure performed as a final part of the evidence process.

In some countries, sharia courts, with their tradition of pro se representation, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, juries and voir dire proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings. This can provide significant increases in speed and efficiency, and can be an advantage in jurisdictions where the general court system is slow or corrupt, and where few litigants can afford lawyers. In Nigeria, where imposition of sharia was highly controversial, even Nigeria's justice minister was compelled to admit that in sharia courts, "if a man owes you money, you can get paid in the evening. Whereas in the regular courts, you can sit in court for ten years and get no justice."[120] Other systems, such as those of Iran, Iraq, and Pakistan, use a civil sharia code similar to western countries, and do have defense attorneys, prosecutors, and appeals courts. They also have a supreme court, and a definite civil law style penal code, but are still heavily based on the informality and simplicity of a "pure" sharia court, and trials often still take a matter of hours or sometimes days.

Penalties
Main article: Hudud
See also: Rajm, Islam and domestic violence, and Zina (Arabic)

The punishment depends on whether the criminal was convicted of qesas, hudud or tazir.

In a tazir crime, the penalty would be usually a prison sentence, corporal punishment in some countries, or a execution in a more serious case (such as a case that was not prosecuted as hudud, like rape/drug trafficking). Since hudud crimes are extremely hard to punish, this is the usual route that would be taken. Stoning and amputation would certainly not be carried out in a tazir sentence, and the punishment would not be fixed, but discretionary. Most countries have a civil code that regulates the penalties that should be received in a tazir crime, such as a death sentence in the case of drug trafficking, aggravated rape, or prison time in the case of other offenses.

In the rarest of rare case (more common in Saudi Arabia or Afghanistan ) when a person is convicted of a hudud crime, the punishment is much harsher.

In accordance with the Quran and several hadith, theft is punished by imprisonment or amputation of hands.[121] Several requirements are in place for the amputation of hands, they are:

  • There must have been criminal intent to take private (not common) property.
  • The theft must not have been the product of hunger, necessity, or duress.
  • The goods stolen must: be over a minimum value, not haraam, and not owned by the thief's family.
  • Goods must have been taken from custody (i.e., not in a public place).
  • There must be reliable witnesses.

All of these must be met under the scrutiny of judicial authority.[Quran 5:38][122]

In accordance with hadith, stoning to death is the penalty for married men and women who commit adultery. In addition, there are several conditions related to the person who commits it that must be met. One of the difficult ones is that the punishment cannot be enforced unless there is a confession of the person, or four male eyewitnesses who each saw the act being committed. All of these must be met under the scrutiny of judicial authority[123] For unmarried men and women, the punishment prescribed in the Quran and hadith is 100 lashes.[124]

The "four witness" standard comes from the Quran itself, a revelation Muhammad announced in response to accusations of adultery leveled at his wife, Aisha: "Why did they not produce four witnesses? Since they produce not witnesses, they verily are liars in the sight of Allah."[Quran 24:13]

Punishments are authorized by other passages in the Quran and hadiths for certain crimes (e.g., extramarital sex, adultery), and are employed by some as rationale for extra-legal punitive action while others disagree:

“The woman and the man guilty of adultery or fornication—flog each of them with hundred stripes: Let no compassion move you in their case, in a matter prescribed by God, if ye believe in God and the last day.”[Quran 24:2] “Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).”[Quran 17:32]

Leaving Islam/Apostasy
See also: Apostasy in Islam and Salman Rushdie

In most interpretations of sharia, conversion by Muslims to other religions or becoming non-religious, is strictly forbidden and is termed apostasy. Non-Muslims, however, are allowed to convert into Islam.[125] Muslim theology equates apostasy to treason, and in most interpretations of sharia, the penalty for apostasy is death. During the time of Muhammad, treason and apostasy were considered one and the same; nowadays, many scholars differentiate between treason and apostasy, believing that the punishment for apostasy is not death, while the punishment for treason is death.[citation needed]

The accusation of apostasy may be used against non-conventional interpretations of the Quran. The severe persecution[weasel words] of the famous expert in Arabic literature, Nasr Abu Zayd, is an example of this.[126] Similar accusations and persecutions[weasel words] were famously leveled against the author Salman Rushdie.[127][not in citation given]

Dietary

Main articles: Halal and Dhabiha

Islamic law does not present a comprehensive list of pure foods and drinks. However, it prohibits:[128]

  • Swine, blood, the meat of dead animals and animals slaughtered in the name of someone other than God.
  • Slaughtering an animal in any other way except the prescribed manner of tazkiyah (cleansing) by taking God's name, which involves cutting the throat of the animal and draining the blood. Slaughtering with a blunt blade or physically ripping out the esophagus is strictly forbidden. Modern methods of slaughter like the captive bolt stunning and electrocuting are also prohibited. [129]
  • Intoxicants

The prohibition of dead meat is not applicable to fish and locusts.[130][131][132] Also hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,[133] Jallalah (animals whose meat carries a stink in it because they feed on filth),[134] tamed donkeys,[135] and any piece cut from a living animal.[128][136]

Liquor and gambling

Liquor and gambling are expressly prohibited in the Quran, and sharia law.

Muhammad is reported to have said: "He who plays with dice is like the one who handles the flesh and blood of swine."

Abd-Allah ibn Amr reported that Muhammad prohibited all games of chance and card playing that caused financial gain or loss.[137]

Customs and behaviour

See also: Islamic hygienical jurisprudence

Practitioners of Islam are generally taught to follow some specific customs in their daily lives. Most of these customs can be traced back to Abrahamic traditions in Pre-Islamic Arabian society.[138] Due to Muhammad's sanction or tacit approval of such practices, these customs are considered to be Sunnah (practices of Muhammad as part of the religion) by the Ummah (Muslim nation). It includes customs like:

  • Saying "Bismillah" (in the name of God) before eating and drinking.[139]
  • Using the right hand for drinking and eating.[140]
  • Saying "As-Salaam Alaikum" (peace be upon you) when meeting someone and answering with "Wa 'alaikumus salam" (and peace be upon you).[141]
  • Saying "Alhamdulillah" (all gratitude is for only God) when sneezing and responding with "Yarhamukallah" (God have mercy on you).[142]
  • Saying the "Adhan" (prayer call) in the right ear of a newborn and the Iqama in its left.
  • In the sphere of hygiene, it includes:
    • Clipping the moustache
    • Cutting nails
    • Circumcising the male offspring[143][144]
    • Cleaning the nostrils, the mouth, and the teeth[145] and
    • Cleaning the body after urination and defecation[146]
  • Abstention from sexual relations during the menstrual cycle and the puerperal discharge,[Quran 2:222] and ceremonial bath after the menstrual cycle, and Janabah (seminal/ovular discharge or sexual intercourse).[Quran 4:43][Quran 5:6]
  • Burial rituals include funeral prayer[147] of bathed[148] and enshrouded body in coffin cloth[149] and burying it in a grave.[150]
Rituals
Main articles: Eid ul-Fitr and Eid al-Adha

There are two festivals that are considered Sunnah.[150][151]

Rituals associated with these festivals:[150]

  • Sadaqah (charity) before Eid ul-Fitr prayer.[152]
  • The Prayer and the Sermon on Eid day.
  • Takbirs (glorifying God) after every prayer in the days of Tashriq. (Normally these days are considered to be the ones in which pilgrims stay at Mina once they return from Muzdalifah i.e., the 10th, 11th, 12th and 13th of Dhu al-Hijjah.)
  • Sacrifice of unflawed, four legged grazing animal of appropriate age after the prayer of Eid al-Adha in the days of Tashriq.[153]
Dress codes
Main articles: Hijab, List of types of sartorial hijab, and Islam and clothing

The Quran also places a dress code upon its followers. The rule for men has been ordained before the women: “say to the believing men to lower their gaze and preserve their modesty, it will make for greater purity for them and Allah is well aware of all that they do.”[Quran 24:30] Allah then says in the Quran, “And say to the believing women that they cast down their looks and guard their private parts and do not display their ornaments except what appears thereof, and let them wear their khumūr over their bosoms, and not display their ornaments except to their husbands...”[24:31] All those men in whose presence a woman is not obliged to practise the dress code are known as her mahrams. Men have a more relaxed dress code: the body must be covered from knee to waist. However, under sharia law, women are required to cover all of their bodies except hands and face.[154][155]Covering the face is the subject of some divergence of opinion amongst the scholars – some consider it to be compulsory since the face is the major source of attraction, whilst others consider it to be highly recommended. The rationale given for these rules is that men and women are not to be viewed as sexual objects. Men are required to keep their guard up and women to protect themselves. In theory, should either one fail, the other prevents the society from falling into fitna (temptation or discord).

There are many different opinions, however, as to whether the veil or headscarf is a real Quranic obligation. Some scholars such as Yusuf al-Qaradawi claim it is, while others, such as Mohammed Arkoun, Soheib Bencheikh, Abdoldjavad Falaturi, Gamal al-Banna claim it is not. However, the first group appears dominant:[154] "Jamal al Banna has been for a number of years one of the few mainstream Muslim scholars to argue that the Muslim headscarf, or hijab, is not an Islamic obligation."[156]

Historical developments and contemporary issues

Map of the Muslim world with the main schools of Islamic law (madhhab)

During the 19th century, the history of Islamic law took a sharp turn due to new challenges the Muslim world faced: the West had risen to a global power and colonized a large part of the world, including Muslim territories. In the Western world, societies changed from the agricultural to the industrial stage, new social and political ideas emerged, and social models slowly shifted from hierarchical towards egalitarian. The Ottoman Empire and the rest of the Muslim world were in decline, and calls for reform became louder. In Muslim countries, codified state law started replacing the role of scholarly legal opinion. Western countries sometimes inspired, sometimes pressured, and sometimes forced Muslim states to change their laws. Secularist movements pushed for laws deviating from the opinions of the Islamic legal scholars. Islamic legal scholarship remained the sole authority for guidance in matters of rituals, worship, and spirituality, while they lost authority to the state in other areas. The Muslim community became divided into groups reacting differently to the change. This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).

  • Secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines.
  • Traditionalists believe that the law of the state should be based on the traditional legal schools. However, traditional legal views are considered unacceptable by some modern Muslims, especially in areas like women's rights or slavery.[157]
  • Reformers believe that new Islamic legal theories can produce modernized Islamic law[158] and lead to acceptable opinions in areas such as women's rights.[159] However, traditionalists believe that any departure from the legal teachings of the Quran as explained by the Prophet Muhammad and put into practice by him is an alien concept that cannot properly be attributed to "Islam".

Contemporary practice

There is tremendous variety in the interpretation and implementation of Islamic law in Muslim societies today. Liberal movements within Islam have questioned the relevance and applicability of sharia from a variety of perspectives; Islamic feminism brings multiple points of view to the discussion. Some of the largest Muslim countries, including Indonesia, Bangladesh and Pakistan, have largely secular constitutions and laws, with only a few Islamic law provisions in family law. Turkey has a constitution that is officially strongly secular. India and the Philippines are the only countries in the world that have separate Muslim civil laws, wholly based on sharia. In India, Muslim civil laws are framed by the Muslim Personal Law board while, in the Philippines, it is framed by the Code of Muslim Personal Laws. However, the criminal laws in both the countries are uniform.

In September 2008, newspapers in the United Kingdom stated the government had "quietly sanctioned" the recognition of sharia courts. This refers to situations where both sides in a legal dispute freely choose a sharia court as a binding arbitrator rather than taking a matter before the official courts. The decision did not break new ground: the decisions of similar Jewish beth din court arbitrations have been recognized in England for over 100 years.[160] Neither party can be forced into arbitration by a sharia or a Jewish court.

Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and the Mutaween (religious police) assert social compliance, while Somaliland, and Maldives adopted sharia in legal aspects but with a western style of judiciary system (Common law or civil law). Laws derived from sharia are also applied in Afghanistan, Libya and Sudan. Sharia law is officially recognised by the justice system in Israel in matters of personal status of Muslims if they choose a sharia court, e.g., marriage, divorce, guardianship.) Judges' salaries are paid by the state.[161] Lebanon also incorporates sharia law for Muslims in family matters.[162] Some states in northern Nigeria have reintroduced sharia courts.[163] In practice the new sharia courts in Nigeria have most often meant the reintroduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery.[164]

Many, including the European Court of Human Rights, consider the punishments prescribed by sharia in some countries to be barbaric and cruel. Islamic scholars argue that, if implemented properly, the punishments serve as a deterrent to crime.[165] In international media, practices by countries applying Islamic law have fallen under considerable criticism at times. This is particularly the case when the sentence carried out is seen to greatly tilt away from established standards of international human rights. This is true for the application of the death penalty for the crimes of adultery, blasphemy, apostasy and homosexuality, amputations for the crime of theft, and flogging for fornication or public intoxication.[166]

A bill proposed by lawmakers in the Indonesian province of Aceh would implement sharia law for all non-Muslims, the armed forces and law enforcement officers, a local police official has announced.[clarification needed] The news comes two months after the Deutsche Presse-Agentur warned of "Taliban-style Islamic police terrorizing Indonesia's Aceh".[167][168][169]

Contemporary issues

Democracy

Further information: Islamic ethics, Islam and democracy, Shura, and Ijma

Sharia law involves elements of a democratic system, namely electoral procedure, though syntax as to what a "democracy" constitutes leaves this in question.[170] Legal scholar L. Ali Khan argues that "constitutional orders founded on the principles of sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall".[171][172]

However, European and American courts have generally ruled against the implementation of Sharia law, both in jurisprudence and within a community context, based of Sharia's religious background. Whereas groups within a number of nations are actively seeking to implement Sharia law, in 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party on the grounds that "Democracy is the antithesis of Sharia", which latter of which Refah sought to introduce.

On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".[173][174][175] Refah's sharia-based notion of a "plurality of legal systems, grounded on religion" was ruled to contravene the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was determined that it would "do away with the State's role as the guarantor of individual rights and freedoms" and "infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy".[176]

Human rights

Cairo Declaration on Human Rights in Islam

Several major, predominantly Muslim countries criticized the Universal Declaration of Human Rights (UDHR) for its perceived failure to take into account the cultural and religious context of non-Western countries. Iran claimed that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. Therefore in 1990 the Organisation of the Islamic Conference, a group representing all Muslim majority nations, adopted the Cairo Declaration on Human Rights in Islam.

Ann Elizabeth Mayer points to notable absences from the Cairo Declaration: provisions for democratic principles, protection for religious freedom, freedom of association and freedom of the press, as well as equality in rights and equal protection under the law. Article 24 of the Cairo declaration states that "all the rights and freedoms stipulated in this Declaration are subject to the Islamic shari'a".[177]

Professor H. Patrick Glenn asserts that the European concept of human rights developed in reaction to an entrenched hierarchy of class and privilege contrary to, and rejected by, Islam. As implemented in sharia law, protection for the individual is defined in terms of mutual obligation rather than human rights. The concept of human rights, as applied in the European framework, is therefore unnecessary and potentially destructive to Islamic societies.[178]

Many secularist, human rights, and leading organisations have criticized Islamic states' stance on human rights. In 2009, the journal Free Inquiry summarized this criticism in an editorial: "We are deeply concerned with the changes to the Universal Declaration of Human Rights by a coalition of Islamic states within the United Nations that wishes to prohibit any criticism of religion and would thus protect Islam's limited view of human rights. In view of the conditions inside the Islamic Republic of Iran, Egypt, Pakistan, Saudi Arabia, the Sudan, Syria, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam."[179]

Freedom of speech

See also: Islamic ethics#Freedom of expression, Jyllands-Posten Muhammad cartoons controversy, Blasphemy laws of the Islamic Republic of Iran, and Blasphemy law in Pakistan

Qadi 'Iyad argues that sharia does not allow freedom of speech in such matters as criticism of Muhammad. Such criticism is blasphemy and punishable by death.

Slander, gossip, and backbiting, or "ghiba" is regarded as a major sin.[180]

Homosexuality

Main article: Homosexuality and Islam

Homosexual activity is illegal under sharia, though the prescribed penalties differ from one school of jurisprudence to another. For example, these Muslim-majority countries may impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,[181] Nigeria,[182] Saudi Arabia,[183] Somalia.[184] In contrast, in some Muslim-majority countries such as Indonesia (outside of Aceh province),[185] Jordan, Egypt and Iraq, same-sex sexual acts are illegal but there is no specific penalty.[186][original research?]. In Turkey, homosexual acts in private between consenting individuals are legal.

Women

Main article: Women in Islam

In terms of religious obligations, such as certain elements of prayer, payment of the zakat poor-tax, observance of the Ramadan fast, and the Hajj pilgrimage, women are treated no differently from men. There are, however, some exceptions made in the case of prayers and fasting, as women are relieved from the duty of the five daily prayers or fasting during their menstruation.[citation needed]

There are no priests or clergy needed in order to perform rites and sacraments in Islam. The leader of prayer is known as an imam. Men can lead both men and women in prayer, but women do not traditionally lead men in prayer.[187] In practice, it is much more common for men to be scholars than women, however in the early days of Islam, female scholars were much more common.[188] Islam does not prohibit women from working, as it says, "Treat your women well and be kind to them for they are your partners and committed helpers."[189] Married women may seek employment although it is often thought in patriarchal societies that the woman's role as a wife and mother should have first priority.[citation needed]

Islam unequivocally allows both single and married women to own property in their own right.[190] Islam grants women the right to inherit property from other family members, and these rights are detailed in the Quran. A woman's inheritance is different from a man's, both in quantity and attached obligations.[Quran 4:12] For instance, a daughter's inheritance is usually half that of her brothers.[Quran 4:11] Sharia law requires family members females or males to support each other as needed; compare female inheritance in Salic law. Men are fully obliged to financially maintain their household, whereas women are not; it is often said that even if the woman is a millionaire and he is poor, he is still obliged to spend on her. She is not obliged to share her wealth with her husband unless she does so out of kindness.[citation needed]

Islamic jurists have traditionally held that Muslim women may enter into marriage with only Muslim men,[191] although some contemporary jurists question the basis of this restriction.[191][192][193] On the other hand, the Quran allows a Muslim man to marry a chaste woman from the People of the Book, a term that includes Jews, Sabians, and Christians.[191][Quran 5:5] However, fiqh law[which?] has held that it is makruh (reprehensible) for a Muslim man to marry a non-Muslim woman in a non-Muslim country.[191]

In 2003, a Malaysian court ruled that, under sharia law, a man may divorce his wife via text messaging as long as the message was clear and unequivocal.[194]

The divorced wife always keeps her dowry from when she was married, and is given child support until the age of weaning. The mother is usually granted custody of the child.[102] If the couple has divorced fewer than three times (meaning it is not a final divorce) the wife also receives spousal support for three menstrual cycles after the divorce, until it can be determined whether she is pregnant.[103]

See also: Ma malakat aymanukum
[why?]

Women's rights

Status of women under Islamic law prior to the 19th century

Islamic law grants women some legal rights they did not have under Western legal systems until the 19th and 20th centuries.[195] Noah Feldman, a Harvard University law professor, has noted:

As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them – hardly progress toward equality of the sexes.[196]

Status of women under Islamic law since the 19th century

At this point in history the aforementioned exploration of freedom is no longer true — that is to say that whilst it is arguable that women had more extensive legal rights under Islamic law than they did under Western legal systems in the past, it is no longer true today.[197]

Slavery and emancipation

Main article: Islam and slavery

The major juristic schools of Islam have traditionally accepted the institution of slavery. However, Islam has prescribed five ways to free slaves, has severely chastised those who enslave free people, and regulated the slave trade. The source of slaves was restricted to war in preference to killing whole tribes en masse, as was the tradition at the time. Slaves also had more rights under Islam as an owner could not mistreat them. Many slaves were freed after a certain period of time, if they accepted to convert to Islam, or if they were ransomed.

Sharia and non-Muslims

Main article: Dhimmi

Based on Quranic verses and Islamic traditions, classical sharia distinguishes between Muslims, followers of other Abrahamic monotheistic religions, and pagans or people belonging to other polytheistic religions. As monotheists, Jews and Christians have traditionally been considered "People of The Book," and afforded a special status known as dhimmi derived from a theoretical contract - "dhimma" or "residence in return for taxes". There are parallels for this in Roman and Jewish law.[198] Hindus were originally considered pagans and given the choice between conversion to Islam and death (or slavery), as pagans are not afforded the rights and protections of the dhimma contract.[199] By the Middle Ages, the Hindus and Buddhists of India had come to be considered dhimmis by their Muslim rulers.[200] Eventually, the largest school of Islamic scholarship applied this term to all non-Muslims living in Islamic lands outside the sacred area surrounding Mecca, Saudi Arabia.[201]

Non-Muslims protesting against sharia.

Classical sharia attributes different legal rights and obligations to different religious groups; in practice, this consisted of curbs on the rights and freedoms of non-Muslims.[202] However, the classical dhimma contract is no longer enforced. Western influence has been instrumental in eliminating the restrictions and protections of the dhimma contract, thereby contributing to the current state of relations between Muslims and non-Muslims living in Islamic lands.[203]

According to law professor H. Patrick Glenn of the Canadian McGill University, located in Montreal, Quebec, "Today it is said that the dhimmi are 'excluded from the specifically Muslim privileges, but on the other hand they are excluded from the specifically Muslim duties' while (and here there are clear parallels with western public and private law treatment of aliens – Fremdenrecht, la condition de estrangers), [f]or the rest, the Muslim and the dhimmi are equal in practically the whole of the law of property and of contracts and obligations."[204]

Classical sharia incorporated the religious laws and courts of Christians, Jews and Hindus, as seen in the early Caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system.[205][206] In medieval Islamic societies, the qadi (Islamic judges) usually could not interfere in the matters of non-Muslims unless the parties voluntarily choose to be judged according to Islamic law, thus the dhimmi communities living in Islamic states usually had their own laws independent from the sharia law, such as the Jews who would have their own Halakha courts.[207] These courts did not cover cases involved other religious groups, or capital offences or threats to public order. By the 18th century, however, dhimmis frequently attended the Ottoman Muslim courts, where cases were taken against them by Muslims, or they took cases against Muslims or other dhimmis. Oaths sworn by dhimmis in these courts tailored to their beliefs.[208]

Non-Muslims were allowed to engage in certain practices (such as the consumption of alcohol and pork) that were usually forbidden by Islamic law. Zoroastrian "self-marriages", that were considered incestuous under sharia, were also tolerated. Ibn Qayyim (1292–1350) opined that non-Muslims were entitled to such practices since they could not be presented to sharia courts and the religious minorities in question held it permissible. This ruling was based on the precedent that the prophet Muhammad did not forbid such self-marriages among Zoroastrians despite coming into contact with Zoroastrians and knowing about this practice.[209] Religious minorities were also free to do whatever they wished in their own homes, provided they did not publicly engage in illicit sexual activity in ways that could threaten public morals.[210]

Parallels with Western legal systems

Comparisons with common law

Parallels to common law concepts are found in classical Islamic law and jurisprudence including ratio decidendi (illah). Several fundamental common law institutions may have been adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily, and also by Crusaders during the Crusades. In particular, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif."[citation needed] The English trust and agency institutions in common law were possible adapted from the Islamic Waqf and Hawala institutions respectively during the Crusades. It is worth noting, however, that transferring property to another for the "use" of another developed largely in response to the requirements of feudal inheritance law. Trust law, in particular, is a creature of equity which derived from the parallel jurisdiction of the Lord Chancellor to decide matters independently to the Royal Courts.

Other English legal institutions such as "the scholastic method, the license to teach", the "law schools known as Inns of Court in England and Madrasas in Islam” and the "European commenda" (Islamic Qirad) may have also originated from Islamic law. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[211]

Comparisons with civil law

One of the institutions developed by classical Islamic jurists that influenced civil law was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the Aval in French civil law and the Avallo in Italian law.[66] The "European commenda" limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.[65]

International law

Islamic law also made "major contributions" to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways.[212][213] These included Muslim sailors being "paid a fixed wage "in advance" with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions" in which contracts should specify "a known fee for a known duration", in contrast to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea venture's profit, with shares allotted by rank, only after a voyage's successful conclusion." Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the "high seas", and they also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo." Islamic law also "departed from Justinian's Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was also a precursor to the European commenda limited partnership. The "Islamic influence on the development of an international law of the sea" can thus be discerned alongside that of the Roman influence.[212]

Legal education

Main articles: Madrasah and Ijazah

The origins of the Ijazah dates back to the ijazat attadris wa 'l-ifttd ("license to teach and issue legal opinions") in the medieval Islamic legal education system, which was equivalent to the Doctor of Laws qualification and was developed during the 9th century after the formation of the Madh'hab legal schools. To obtain a doctorate, a student "had to study in a guild school of law, usually four years for the basic undergraduate course" and ten or more years for a post-graduate course. The "doctorate was obtained after an oral examination to determine the originality of the candidate's theses," and to test the student's "ability to defend them against all objections, in disputations set up for the purpose," which were scholarly exercises practiced throughout the student's "career as a graduate student of law." After students completed their post-graduate education, they were awarded doctorates giving them the status of faqih (meaning "master of law"), mufti (meaning "professor of legal opinions") and mudarris (meaning "teacher"), which were later translated into Latin as magister, professor and doctor respectively.[214]

Role in economic development and corporate law

Sharia classically recognizes only natural persons, and never developed the concept of a legal person, or corporation, i.e., a legal entity that limits the liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives.[215] Thus, sharia has no native tradition of corporate law. This, combined with egalitarian rules of inheritance for male descendants (compare with primogeniture), hindered the concentration of wealth and the development of larger and more sophisticated enterprises, according to Timur Kuran of American Duke University, located in Durham, North Carolina. Prohibitions on interest, or "riba" also disadvantaged Muslims vis-à-vis non-Muslim minorities in accessing banks and insurance when these services were first introduced by Westerners. Interest prohibitions, also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.[216] Such factors, according to Kuran, have played a significant role in retarding economic development in the Middle East.[217] Though, it is argued, the West caught up in the economic crises at the outset of the 21st century when many of the aforementioned economic policies backfired on a global scale and threatened to bankrupt entire countries.

Qanun

After the fall of the Abbasids in 1258, a practice known to the Turks and Mongols transformed itself into Qanun, which gave power to caliphs, governors, and sultans alike to "make their own regulations for activities not addressed by the sharia."[218] The Qanun began to unfold as early as Umar I (586-644 CE).[218] Many of the regulations covered by Qanun were based on financial matters or tax systems adapted through the law and regulations of those territories Islam conquered.[218] Qanun in Arabic means law or rules.

See also

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Specific issues
  • Qisas – retaliatory crimes
  • Tazir – less-severe crimes (thus, "crimes against individuals", not God)
Schools of jurisprudence

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Sources

Further reading

  • Ali, Abdullah Yusuf (2000). The Holy Quran * Translated by Abdullah Yusuf Ali. Wordsworth Editions. ISBN 978-1-85326-782-6. A popular translation of the Quran
  • Khan, Muhammad Muhsin (1996). The English Translation of Sahih Al Bukhari With the Arabic Text. ISBN 978-1-88196-359-2. The complete translation (in nine volumes) of a popular Sunni collection of hadith
  • Hussain, Jamila. Islam: Its Law and Society. The Federation Press. ISBN 1-86287-499-9. A modern discourse on Sharia law

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