Sharia
Sharia (/ʃəˈriːə/, Arabic: شريعة [ʃaˈriːʕah]) Islamic law is a religious law forming part of the Islamic tradition.[1][2] It is derived from the religious precepts of Islam, particularly the Quran and the hadith. In Arabic, the term sharīʿah refers to God's immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations.[3][4][5] The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists.[6][1]
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Traditional theory of Islamic jurisprudence recognizes four sources of Sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning),[note 1] and ijma (juridical consensus).[8] Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali and Jafari—developed methodologies for deriving Sharia rulings from scriptural sources using a process known as ijtihad.[3][4] Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics.[3][5] Its rulings are concerned with ethical standards as much as with legal norms,[9][10] assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited.[3][4][5] Thus, some areas of Sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God's will.[4]
Classical jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in Sharia courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs.[3][5] Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by Sharia but not bound by its rules.[11][5] Non-Muslim (dhimmi) communities had legal autonomy to adjudicate their internal affairs.[4] Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies,[12] and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers.[13] The Ottoman civil code of 1869–1876 was the first partial attempt to codify Sharia.[14]
In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models.[4][15] Judicial procedures and legal education were likewise brought in line with European practice.[4] While the constitutions of most Muslim-majority states contain references to Sharia, its classical rules were largely retained only in personal status (family) laws.[4] Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence.[4][14] The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of Sharia, including hudud corporal punishments, such as stoning.[4][14] In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of Sharia advocated by progressive reformers.[4][14][16] Some Muslim-minority countries recognize the use of Sharia-based family laws for their Muslim populations.[17][18] Sharia also continues to influence other aspects of private and public life.
The role of Sharia has become a contested topic around the world.[4] Introduction of Sharia-based laws sparked intercommunal violence in Nigeria[19][20] and may have contributed to the breakup of Sudan.[4] Some jurisdictions in North America have passed bans on use of Sharia, framed as restrictions on religious or foreign laws.[21] There are ongoing debates as to whether Sharia is compatible with democracy, human rights, freedom of thought, women's rights, LGBT rights, and banking.[22][23][24]
Etymology and usage
Contemporary usage
The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality.[25] For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith.[25] Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims.[25] For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to Sharia.[4]
Jan Michiel Otto distinguishes four senses conveyed by the term sharia in religious, legal and political discourse:[26]
- Divine, abstract sharia: God's plan for mankind and the norms of behavior which should guide the Islamic community. Muslims of different perspectives agree in their respect for the abstract notion of sharia, but they differ in how they understand the practical implications of the term.
- Classical sharia: the body of rules and principles elaborated by Islamic jurists during the first centuries of Islam.
- Historical sharia(s): the body of rules and interpretations developed throughout Islamic history, ranging from personal beliefs to state legislation and varying across an ideological spectrum. Classical sharia has often served as a point of reference for these variants, but they have also reflected the influences of their time and place.
- Contemporary sharia(s): the full spectrum of rules and interpretations that are developed and practiced at present.
A related term al-qānūn al-islāmī (القانون الإسلامي, Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.[27]
Etymology
The primary range of meanings of the Arabic word šarīʿah, derived from the root š-r-ʕ, is related to religion and religious law.[25] The lexicographical tradition records two major areas of use where the word šarīʿah can appear without religious connotation.[28] In texts evoking a pastoral or nomadic environment, the word, and its derivatives refer to watering animals at a permanent water-hole or to the seashore, with special reference to animals who come there.[28] Another area of use relates to notions of stretched or lengthy.[28] This range of meanings is cognate with the Hebrew saraʿ and is likely to be the origin of the meaning "way" or "path".[28] Both these areas have been claimed to have given rise to aspects of the religious meaning.[28]
Some scholars describe the word šarīʿah as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah ["The Way to Go"]),[29] or "path to the water hole"[30][31] and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.[31]
Use in religious texts
In the Quran, šarīʿah and its cognate širʿah occur once each, with the meaning "way" or "path".[25] The word šarīʿah was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word torah in the 10th-century Arabic translation of the Torah by Saʿadya Gaon.[25] A similar use of the term can be found in Christian writers.[25] The Arabic expression Sharīʿat Allāh (شريعة الله "God’s Law") is a common translation for תורת אלוהים (‘God’s Law’ in Hebrew) and νόμος τοῦ θεοῦ (‘God’s Law’ in Greek in the New Testament [Rom. 7: 22]).[32] In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh, which refers to a scholar's interpretation thereof.[33]
In older English-language law-related works in the late 19th/early 20th centuries, the word used for Sharia was sheri.[34] It, along with the French variant chéri, was used during the time of the Ottoman Empire, and is from the Turkish şer’(i).[35]
Historical origins
According to the traditional Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development,"[36] and the emergence of Islamic jurisprudence (fiqh) also goes back to the lifetime of Muhammad.[4][5] In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith.[4][5] These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifah, Malik ibn Anas, Al-Shafi‘i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools (madhhabs) of Sunni jurisprudence.[5]
Modern historians have presented alternative theories of the formation of fiqh.[4][5] At first Western scholars accepted the general outlines of the traditional account.[37] In the late 19th century, an influential revisionist hypothesis was advanced by Ignac Goldziher and elaborated by Joseph Schacht in the mid-20th century.[5] Schacht and other scholars[38] argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs unknown to the desert-dwelling conquerors, the initial Muslim efforts to formulate legal norms[note 2] regarded the Quran[note 3] and Muhammad's hadiths as just one sources of law,[note 4] with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources.[43] At least one source (historian Tom Holland) has argued that the strong scholarly tradition of Mobad among the conquered Zoroastrians of Persia and rabbis among the conquered Jews influenced the law[44] of their largely illiterate warrior conquerors; and that this can explain such issues as why the Quran mentions only three prayers (24:58) while Muslims pray five times a day (Zoroastrians prayed five times a day)[45] and why the Quran commands adulterers be lashed, while Sharia calls for their execution by stoning (Deuteronomy 22:21 of the Jewish Torah calls for stoning to death of women who have been found to have had sex before marriage).[46][47]
According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications.[note 5] After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad's companions.[5] In his view, the real architect of Islamic jurisprudence was Al-Shafi‘i (d. 820 CE/204 AH), who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work al-risala,[5][37] but who was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths.
While the origin of hadith remains a subject of scholarly controversy, this theory (of Goldziher and Schacht) has given rise to objections, and modern historians generally adopt more cautious, intermediate positions,[37] and it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam.[49][4][50] It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified other aspects, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the early Muslim communities.[51] Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics.[51][52] At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles.[52][4] As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder.[52][4] In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.[4][53]
Traditional jurisprudence (fiqh)
Fiqh is traditionally divided into the fields of uṣūl al-fiqh (lit. the roots of fiqh), which studies the theoretical principles of jurisprudence, and furūʿ al-fiqh (lit. the branches of fiqh), which is devoted to elaboration of rulings on the basis of these principles.[5][7]
Principles of jurisprudence (uṣūl al-fiqh)
Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity.[54] However, they believed that use of reason alone is insufficient to distinguish right from wrong, and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad.[54]
Traditional theory of Islamic jurisprudence elaborates how scriptures should be interpreted from the standpoint of linguistics and rhetoric.[5] It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date.[5] In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas).[49] It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools.[5] This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question.[5] The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notion of sunnah to include traditions of the imams.[55]
Sources of Sharia
- Quran: In Islam, the Quran is considered to be the most sacred source of law.[56] Classical jurists held its textual integrity to be beyond doubt on account of it having been handed down by many people in each generation, which is known as "recurrence" or "concurrent transmission" (tawātur).[49][56] Only several hundred verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance, though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means.[4][56]
- Hadith: The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic.[4][56] Early Islamic scholars developed a methodology for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains.[56] These criteria narrowed down the vast corpus of prophetic traditions to several thousand "sound" hadiths, which were collected in several canonical compilations.[56] The hadiths which enjoyed concurrent transmission were deemed unquestionably authentic; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge.[57][49] The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages.[56] Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings.[4]
- Consensus (ijma) could in principle elevate a ruling based on probable evidence to absolute certainty.[58][4] This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error.[58] This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community.[58][4][59] However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development.[58][4] A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion.[4] The cases for which there was a consensus account for less than 1 percent of the body of classical jurisprudence.[58]
- Analogical reasoning (qiyas): Qiyas is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule.[49] In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the "cause" (ʿilla) shared by these situations, which in this case is identified to be intoxication.[49] Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate.[60] Twelver Shia jurisprudence does not recognize the use of qiyas, but relies on reason (ʿaql) in its place.[7]
Ijtihad
The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity).[49] A jurist who is qualified to practice ijtihad is known as a mujtahid.[50] The use of independent reasoning to arrive at a ruling is contrasted with taqlid (imitation), which refers to following the rulings of a mujtahid.[50] By the beginning of the 10th century, development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted.[50][61] From the 18th century on, leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad, which they saw as a return to the vitality of early Islamic jurisprudence.[61]
Decision types (aḥkām)
Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong.[9][10] Sharia rulings fall into one of five categories known as “the five decisions” (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām).[4][7] It is a sin or a crime to perform a forbidden action or not to perform a mandatory action.[4] Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court.[4][62] Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgement from God.[4][62] Jurists disagree on whether the term ḥalāl covers the first three or the first four categories.[4] The legal and moral verdict depends on whether the action is committed out of necessity (ḍarūra) and on the underlying intention (niyya), as expressed in the legal maxim "acts are [evaluated according] to intention."[4]
Aims of Sharia and public interest
Maqāṣid (aims or purposes) of Sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times.[63][64][65] They were first clearly articulated by al-Ghazali (d. 1111), who argued that maslaha was God's general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property.[66] Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law.[63][65] Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning.[63][67] Others regarded them as an independent source of law, whose general principles could override specific inferences based on the letter of scripture.[63][68] While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence.[63][49][64] These scholars expanded the inventory of maqasid to include such aims of Sharia as reform and women's rights (Rashid Rida); justice and freedom (Mohammed al-Ghazali); and human dignity and rights (Yusuf al-Qaradawi).[63]
Branches of law
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The domain of furūʿ al-fiqh (lit. branches of fiqh) is traditionally divided into ʿibādāt (rituals or acts of worship) and muʿāmalāt (social relations).[5][50] Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries.[69] Each of these terms figuratively stood for a variety of subjects.[69] For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics.[69] Juristic works were arranged as a sequence of such smaller topics, each called a "book" (kitab).[5][69] The special significance of ritual was marked by always placing its discussion at the start of the work.[5][69]
Some historians distinguish a field of Islamic criminal law, which combines several traditional categories.[4][11][7] Several crimes with scripturally prescribed punishments are known as hudud.[4] Jurists developed various restrictions which in many cases made them virtually impossible to apply.[4] Other crimes involving intentional bodily harm are judged according to a version of lex talionis that prescribes a punishment analogous to the crime (qisas), but the victims or their heirs may accept a monetary compensation (diya) or pardon the perpetrator instead; only diya is imposed for non-intentional harm.[4][11] Other criminal cases belong to the category of taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge's discretion.[4][11] In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to Sharia.[5][11]
The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary).[5] Mukhtasars were short specialized treatises or general overviews that could be used in a classroom or consulted by judges.[5][4][70] A mabsut, which usually provided a commentary on a mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions.[5][70] The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance.[5] At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions.[70] Other juristic genres include the qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar.[4]
Classical jurisprudence has been described as "one of the major intellectual achievements of Islam"[71] and its importance in Islam has been compared to that of theology in Christianity.[note 6]
Schools of law
The main Sunni schools of law (madhhabs) are the Hanafi, Maliki, Shafi'i and Hanbali madhhabs.[50] They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab.[74] These four schools recognize each other's validity and they have interacted in legal debate over the centuries.[74][50] Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world.[74][50] For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia.[74][50][4] The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs.[5] The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought.[5][50][74] The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools.[5][4] The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.[50]
The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system.[74] Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system.[74] State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question).[74] Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws.[74] Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence.[74] The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.[74] Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.[74]
Pre-modern Islamic legal system
Jurists
Sharia was traditionally interpreted by muftis. During the first few centuries of Islam, muftis were private legal specialists who normally also held other jobs. They issued fatwas (legal opinions), generally free of charge, in response to questions from laypersons or requests for consultation coming from judges, which would be stated in general terms. Fatwas were regularly upheld in courts, and when they were not, it was usually because the fatwa was contradicted by a more authoritative legal opinion.[75] The stature of jurists was determined by their scholarly reputation.[76][77] The majority of classical legal works, written by author-jurists, were based in large part on fatwas of distinguished muftis.[76] These fatwas functioned as a form of legal precedent, unlike court verdicts, which were valid only for the given case.[78] Although independent muftis never disappeared, from the 12th century onward Muslim rulers began to appoint salaried muftis to answer questions from the public.[79] Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, while Shia jurists in Iran progressively asserted an autonomous authority starting from the early modern era.[12]
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Islamic law was initially taught in study circles that gathered in mosques and private homes. The teacher, assisted by advanced students, provided commentary on concise treatises of law and examined the students' understanding of the text. This tradition continued to be practiced in madrasas, which spread during the 10th and 11th centuries.[80][81] Madrasas were institutions of higher learning devoted principally to study of law, but also offering other subjects such as theology, medicine, and mathematics. The madrasa complex usually consisted of a mosque, boarding house, and a library. It was maintained by a waqf (charitable endowment), which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. At the end of a course, the professor granted a license (ijaza) certifying a student's competence in its subject matter.[81] Students specializing in law would complete a curriculum consisting of preparatory studies, the doctrines of a particular madhhab, and training in legal disputation, and finally write a dissertation, which earned them a license to teach and issue fatwas.[79][80]
Courts
A judge (qadi) was in charge of the qadi's court (mahkama), also called the Sharia court. Qadis were trained in Islamic law, though not necessarily to a level required to issue fatwas.[4][82] Court personnel also included a number of assistants performing various roles.[83] Judges were theoretically independent in their decisions, though they were appointed by the ruler and often experienced pressure from members of the ruling elite where their interests were at play.[79] The role of qadis was to evaluate the evidence, establish the facts of the case, and issue a verdict based on the applicable rulings of Islamic jurisprudence.[4] The qadi was supposed to solicit a fatwa from a mufti if it was unclear how the law should be applied to the case.[4][84] Since Islamic legal theory does not recognize the distinction between private and public law, court procedures were identical for civil and criminal cases, and required a private plaintiff to produce evidence against the defendant. The main type of evidence was oral witness testimony. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases.[4] Most historians believe that because of these stringent procedural norms, qadi's courts at an early date lost their jurisdiction over criminal cases, which were instead handled in other types of courts.[85]
If an accusation did not result in a verdict in a qadi's court, the plaintiff could often pursue it in another type of court called the mazalim court, administered by the ruler's council.[4] The rationale for mazalim (lit. wrongs, grievances) courts was to address the wrongs that Sharia courts were unable to address, including complaints against government officials. Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler.[4][79] Mazalim verdicts were supposed to conform to the spirit of Sharia, but they were not bound by the letter of the law or the procedural restrictions of qadi's courts.[4][84]
The police (shurta), which took initiative in preventing and investigating crime, operated its own courts.[79] Like the mazalim courts, police courts were not bound by the rules of Sharia and had the powers to inflict discretionary punishments.[85] Another office for maintaining public order was the muhtasib (market inspector), who was charged with preventing fraud in economic transactions and infractions against public morality.[79] The muhtasib took an active role in pursuing these types of offenses and meted out punishments based on local custom.[85]
Socio-political context
The social fabric of pre-modern Islamic societies was largely defined by close-knit communities organized around kinship groups and local neighborhoods. Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community. Court litigation was seen as a last resort for cases where informal mediation had failed. This attitude was reflected in the legal maxim "amicable settlement is the best verdict" (al-sulh sayyid al-ahkam). In court disputes, qadis were generally less concerned with legal theory than with achieving an outcome that enabled the disputants to resume their previous social relationships. This could be accomplished by avoiding a total loss for the losing side or simply giving them a chance to articulate their position in public and obtain a measure of psychological vindication.[86][87] Islamic law required judges to be familiar with local customs, and they exercised a number of other public functions in the community, including mediation and arbitration, supervision of public works, auditing waqf finances, and looking after the interests of orphans.[82][85]
Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers. The law derived its authority not from political control, but rather from the collective doctrinal positions of the legal schools (madhhabs) in their capacity as interpreters of the scriptures. The ulema (religious scholars) were involved in management of communal affairs and acted as representatives of the Muslim population vis-à-vis the ruling dynasties, who before the modern era had limited capacity for direct governance.[88] Military elites relied on the ulema for religious legitimation, with financial support for religious institutions being one of the principal means through which these elites established their legitimacy.[89][88] In turn, the ulema depended on the support of the ruling elites for the continuing operation of religious institutions. Although the relationship between secular rulers and religious scholars underwent a number of shifts and transformations in different times and places, this mutual dependence characterized Islamic history until the start of the modern era.[90][88] Additionally, since Sharia contained few provisions in several areas of public law, Muslim rulers were able to legislate various collections of economic, criminal and administrative laws outside the jurisdiction of Islamic jurists, the most famous of which is the qanun promulgated by Ottoman sultans beginning from the 15th century.[13] The Mughal emperor Aurangzeb (r. 1658-1707) issued a hybrid body of law known as Fatawa-e-Alamgiri, based on Hanafi fatwas as well as decisions of Islamic courts, and made it applicable to all religious communities on the Indian subcontinent. This early attempt to turn Islamic law into semi-codified state legislation sparked rebellions against Mughal rule.[91]
Women, non-Muslims, slaves
In both the rules of civil disputes and application of penal law, classical Sharia distinguishes between men and women, between Muslims and non-Muslims, and between free persons and slaves.[4]
Traditional Islamic law assumes a patriarchal society with a man at the head of the household.[92] Different legal schools formulated a variety of legal norms which could be manipulated to the advantage of men or women,[93] but women were generally at a disadvantage with respect to the rules of inheritance, blood money (diya), and witness testimony, where a woman's value is effectively treated as half of that of a man.[92] In economic terms women enjoyed greater advantages under Islamic law than under other Mediterranean and Middle Eastern legal systems,[93] including the right to own personal property and dispose of it freely, which women in the West did not possess until "quite recently".[92] Various financial obligations imposed on the husband acted as a deterrent against unilateral divorce and commonly gave the wife financial leverage in divorce proceedings.[93] Women were active in Sharia courts as both plaintiffs and defendants in a wide variety of cases, though some opted to be represented by a male relative.[94][4]
Sharia was intended to regulate affairs of the Muslim community.[4] Non-Muslims residing under Islamic rule had the legal status of dhimmi, which entailed a number of protections, restrictions, freedoms and legal inequalities, including payment of the jizya tax.[95] Dhimmi communities had legal autonomy to adjudicate their internal affairs. Cases involving litigants from two different religious groups fell under jurisdiction of Sharia courts,[4] where (unlike in secular courts)[96] testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases[97] or at all.[98] This legal framework was implemented with varying degree of rigor. In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation.[4] The Mughal emperor Aurangzeb imposed Islamic law on all his subjects, including provisions traditionally applicable only to Muslims, while some of his predecessors and successors are said to have abolished jizya.[91][99] According to Ottoman records, non-Muslim women took their cases to a Sharia court when they expected a more favorable outcome on marital, divorce and property questions than in Christian and Jewish courts.[100]
Classical fiqh acknowledges and regulates slavery as a legitimate institution.[92] It granted slaves certain rights and protections, improving their status relative to Greek and Roman law, and restricted the scenarios under which people could be enslaved.[101][102] However, slaves could not inherit or enter into a contract, and were subject to their master's will in a number of ways.[101][102] The labor and property of slaves were owned by the master, who was also entitled to sexual submission of his unmarried slaves.[102][103]
Formal legal disabilities for some groups coexisted with a legal culture that viewed Sharia as a reflection of universal principles of justice, which involved protection of the weak against injustices committed by the strong. This conception was reinforced by the historical practice of Sharia courts, where peasants "almost always" won cases against oppressive landowners, and non-Muslims often prevailed in disputes against Muslims, including such powerful figures as the governor of their province.[104][105] In family matters the Sharia court was seen as a place where the rights of women could be asserted against their husband's transgressions.[4]
Modern legal reforms
Under colonial rule
Starting from the 17th century, European powers began to extend political influence over lands ruled by Muslim dynasties, and by the end of the 19th century, much of the Muslim world came under colonial domination. The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations.[106] Islamic commercial laws were also replaced by European (mostly French) laws in Muslim states which retained formal independence, because these states increasingly came to rely on Western capital and could not afford to lose the business of foreign merchants who refused to submit to Islamic regulations.[4]
The first significant changes to the legal system of British India were initiated in the late 18th century by the governor of Bengal Warren Hastings. Hastings' plan of legal reform envisioned a multi-tiered court system for the Muslim population, with a middle tier of British judges advised by local Islamic jurists, and a lower tier of courts operated by qadis. Hastings also commissioned a translation of the classic manual of Hanafi fiqh, Al-Hidayah, from Arabic into Persian and then English, later complemented by other texts.[107][108] These translations enabled British judges to pass verdicts in the name of Islamic law based on a combination of Sharia rules and common law doctrines, and eliminated the need to rely on consultation by local ulema, whom they mistrusted. In the traditional Islamic context, a concise text like Al-Hidayah would be used as a basis for classroom commentary by a professor, and the doctrines thus learned would be mediated in court by judicial discretion, consideration of local customs and availability of different legal opinions that could fit the facts of the case. The British use of Al-Hidayah, which amounted to an inadvertent codification of Sharia, and its interpretation by judges trained in Western legal traditions anticipated later legal reforms in the Muslim world.[107][109]
British administrators felt that Sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed".[107] In the course of the 19th century, criminal laws and other aspects of the Islamic legal system in India were supplanted by British law, with the exception of Sharia rules retained in family laws and some property transactions.[107][108] Among other changes, these reforms brought about abolition of slavery, prohibition of child marriage, and a much more frequent use of capital punishment.[110][108] The resulting legal system, known as Anglo-Muhammadan law, was treated by the British as a model for legal reforms in their other colonies. Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice. This, together with their conception of Islamic law as a collection of inflexible rules, led to an emphasis on traditionalist forms of Sharia that were not rigorously applied in the pre-colonial period and served as a formative influence on the modern identity politics of the Muslim world.[108]
Ottoman empire
During the colonial era, Muslim rulers concluded that they could not resist European pressure unless they modernized their armies and built centrally administered states along the lines of Western models. In the Ottoman empire, the first such changes in the legal sphere involved placing the formerly independent waqfs under state control. This reform, passed in 1826, enriched the public treasury at the expense of the waqfs, thereby depleting the financial support for traditional Islamic legal education. Over the second half of the 19th century, a new hierarchical system of secular courts was established to supplement and eventually replace most religious courts. Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects.[111] The Tanzimat reforms of the 19th century saw reorganization of both Islamic civil law and sultanic criminal law after the model of the Napoleonic Code.[50] In the 1870s, a codification of civil law and procedure (excepting marriage and divorce), called the Mecelle, was produced for use in both Sharia and secular courts. It adopted the Turkish language for the benefit of the new legal class who no longer possessed competence in the Arabic idiom of traditional jurisprudence. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". The Mecelle was promulgated as a qanun (sultanic code), which represented an unprecedented assertion of the state's authority over Islamic civil law, traditionally the preserve of the ulema.[111] The 1917 Ottoman Law of Family Rights adopted an innovative approach of drawing rules from minority and majority opinions of all Sunni madhhabs with a modernizing intent.[14] The Republic of Turkey, which emerged after the dissolution of the Ottoman Empire, abolished its Sharia courts and replaced Ottoman civil laws with the Swiss Civil Code,[50] but Ottoman civil laws remained in force for several decades in Jordan, Lebanon, Palestine, Syria, and Iraq.[14][50]
Nation states
Westernization of legal institutions and expansion of state control in all areas of law, which began during the colonial era, continued in nation-states of the Muslim world.[112] Sharia courts at first continued to exist alongside state courts as in earlier times, but the doctrine that sultanic courts should implement the ideals of Sharia was gradually replaced by legal norms imported from Europe. Court procedures were also brought in line with European practice. Though the Islamic terms qadi and mahkama (qadi's/Sharia court) were preserved, they generally came to mean judge and court in the Western sense. While in the traditional Sharia court all parties represented themselves, in modern courts they are represented by professional lawyers educated in Western-style law schools, and the verdicts are subject to review in an appeals court. In the 20th century, most countries abolished a parallel system of Sharia courts and brought all cases under a national civil court system.[4]
In most Muslim-majority countries, traditional rules of classical fiqh have been largely preserved only in family law. In some countries religious minorities such as Christians or Shia Muslims have been subject to separate systems of family laws.[4] Many Muslims today believe that contemporary Sharia-based laws are an authentic representation of the pre-modern legal tradition. In reality, they generally represent the result of extensive legal reforms made in the modern era.[112] As traditional Islamic jurists lost their role as authoritative interpreters of the laws applied in courts, these laws were codified by legislators and administered by state systems which employed a number of devices to effect changes,[4] including:
- Selection of alternative opinions from traditional legal literature (takhayyur), potentially among multiple madhhabs or denominations, and combining parts of different rulings (talfiq).[112][113]
- Appeal to the classical doctrines of necessity (darura), public interest (maslaha), and the objectives (maqasid) of Sharia, which played a limited role in classical fiqh, but were now given wider utilitarian applications.[112][113][109]
- Changes in administrative law that grant the courts discretionary powers to restrict certain practices which are not forbidden by substantive law (e.g., polygamy), in some cases imposing penal sanctions as additional deterrence.[112][113]
- Modernist interpretation of Islamic scriptures without adherence to the rules or methodologies of traditional jurisprudence, known as neo-ijtihad.[112][113]
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The most powerful influence on liberal reformist thought came from the work of the Egyptian Islamic scholar Muhammad ʿAbduh (1849–1905). Abduh viewed only Sharia rules pertaining to religious rituals as inflexible, and argued that the other Islamic laws should be adapted based on changing circumstances in consideration of social well-being. Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence.[14] He championed a creative approach to ijtihad that involved direct interpretation of scriptures as well as the methods of takhayyur and talfiq.[5][14]
One of the most influential figures in modern legal reforms was the Egyptian legal scholar Abd El-Razzak El-Sanhuri (1895–1971), who possessed expertise in both Islamic and Western law. Sanhuri argued that reviving Islamic legal heritage in a way that served the needs of contemporary society required its analysis in light of the modern science of comparative law. He drafted the civil codes of Egypt (1949) and Iraq (1951) based on a variety of sources, including classical fiqh, European laws, existing Arab and Turkish codes, and the history of local court decisions.[14][91] Sanhuri's Egyptian code incorporated few classical Sharia rules, but he drew on traditional jurisprudence more frequently for the Iraqi code.[91] Sanhuri's codes were subsequently adopted in some form by most Arab countries.[14]
Aside from the radical reforms of Islamic family law carried out in Tunisia (1956) and Iran (1967), governments often preferred to make changes that made a clear break from traditional Sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage. Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of Quranic shares.[14][91] Some reforms have faced strong conservative opposition. For example, the 1979 reform of Egyptian family law, promulgated by Anwar Sadat through presidential decree, provoked an outcry and was annulled in 1985 by the supreme court on procedural grounds, to be later replaced by a compromise version.[14] The 2003 reform of Moroccan family law, which sought to reconcile universal human rights norms and the country's Islamic heritage, was drafted by a commission that included parliamentarians, religious scholars and feminist activists, and the result has been praised by international rights groups as an example of progressive legislation achieved within an Islamic framework.[16][14]
Islamization
The Islamic revival of the late 20th century brought the topic of Sharia to international attention in the form of numerous political campaigns in the Muslim world calling for full implementation of Sharia.[4][114] A number of factors have contributed to the rise of these movements, classified under the rubric of Islamism or political Islam, including the failure of authoritarian secular regimes to meet the expectations of their citizens, and a desire of Muslim populations to return to more culturally authentic forms of socio-political organization in the face of a perceived cultural invasion from the West.[114][115] Islamist leaders such as Ayatollah Khomeini drew on leftist anticolonialist rhetoric by framing their call for Sharia as a resistance struggle. They accused secular leaders of corruption and predatory behavior, and claimed that a return to Sharia would replace despotic rulers with pious leaders striving for social and economic justice. In the Arab world these positions are often encapsulated in the slogan "Islam is the solution" (al-Islam huwa al-hall).[114]
Full implementation of Sharia theoretically refers to expanding its scope to all fields of law and all areas of public life.[4] In practice, Islamization campaigns have focused on a few highly visible issues associated with the conservative Muslim identity, particularly women's hijab and the hudud criminal punishments (whipping, stoning and amputation) prescribed for certain crimes.[114] For many Islamists, hudud punishments are at the core of the divine Sharia because they are specified by the letter of scripture rather than by human interpreters. Modern Islamists have often rejected, at least in theory, the stringent procedural constraints developed by classical jurists to restrict their application.[4] To the broader Muslim public, the calls for Sharia often represent, even more than any specific demands, a vague vision of their current economic and political situation being replaced by a "just utopia".[115]
A number of legal reforms have been made under the influence of these movements, starting from the 1970s when Egypt and Syria amended their constitutions to specify Sharia as the basis of legislation.[114] The Iranian Revolution of 1979 represented a watershed for Islamization advocates, demonstrating that it was possible to replace a secular regime with a theocracy.[114] Several countries, including Iran, Pakistan, Sudan, and some Nigerian states have incorporated hudud rules into their criminal justice systems, which, however, retained fundamental influences of earlier Westernizing reforms.[4][14] In practice, these changes were largely symbolic, and aside from some cases brought to trial to demonstrate that the new rules were being enforced, hudud punishments tended to fall into disuse, sometimes to be revived depending on the local political climate.[4][116] The supreme courts of Sudan and Iran have rarely approved verdicts of stoning or amputation, and the supreme courts of Pakistan and Nigeria have never done so.[116] Nonetheless, Islamization campaigns have also had repercussions in several other areas of law, leading to curtailment of rights of women and religious minorities, and in the case of Sudan contributing to the breakout of a civil war.[14]
Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern Sharia-based "Islamic state" should take. This is particularly the case for the theorists of Islamic economics and Islamic finance, who have advocated both free-market and socialist economic models.[14] The notion of "Sharia-compliant" finance has become an active area of doctrinal innovation and its development has had a major impact on business operations around the world.[114]
Role in contemporary Islam
In state laws
Types of legal systems
The legal systems of most Muslim-majority countries can be classified as either secular or mixed. Sharia plays no role in secular legal systems. In mixed legal systems, Sharia rules are allowed to influence some national laws, which are codified and may be based on European or Indian models, and the central legislative role is played by politicians and modern jurists rather than the ulema (traditional Islamic scholars). Saudi Arabia and some other Gulf states possess what may be called classical Sharia systems, where national law is largely uncodified and formally equated with Sharia, with ulema playing a decisive role in its interpretation. Iran has adopted some features of classical Sharia systems, while also maintaining characteristics of mixed systems, like codified laws and a parliament.[117]
Constitutional law
Constitutions of many Muslim-majority countries refer to Sharia as a source or the main source of law, though these references are not in themselves indicative of how much the legal system is influenced by Sharia, and whether the influence has a traditionalist or modernist character.[4][5] The same constitutions usually also refer to universal principles such as democracy and human rights, leaving it up to legislators and the judiciary to work out how these norms are to be reconciled in practice.[118] Conversely, some countries (e.g., Algeria), whose constitution does not mention Sharia, possess Sharia-based family laws.[5] Nisrine Abiad identifies Bahrain, Iran, Pakistan, and Saudi Arabia as states with "strong constitutional consequences" of Sharia "on the organization and functioning of power".[119]
Family law
Except for secular systems, Muslim-majority countries possess Sharia-based laws dealing with family matters (marriage, inheritance, etc.). These laws generally reflect influence of various modern-era reforms and tend to be characterized by ambiguity, with traditional and modernist interpretations often manifesting themselves in the same country, both in legislation and court decisions.[15] In some countries (e.g., parts of Nigeria and Greece), people can choose whether to pursue a case in a Sharia or secular court.[15][120]
Criminal law
Countries in the Muslim world generally have criminal codes influenced by French law or common law, and in some cases a combination of Western legal traditions. Saudi Arabia has never adopted a criminal code and Saudi judges still follow traditional Hanbali jurisprudence. In the course of Islamization campaigns, several countries (Libya, Pakistan, Iran, Sudan, Mauritania, and Yemen) inserted Islamic criminal laws into their penal codes, which were otherwise based on Western models. In some countries only hudud penalties were added, while others also enacted provisions for qisas (law of retaliation) and diya (monetary compensation). Iran subsequently issued a new "Islamic Penal Code". The criminal codes of Afghanistan and United Arab Emirates contain a general provision that certain crimes are to be punished according to Islamic law, without specifying the penalties. Some Nigerian states have also enacted Islamic criminal laws. Laws in the Indonesian province of Aceh provide for application of discretionary (ta'zir) punishments for violation of Islamic norms, but explicitly exclude hudud and qisas.[121] Brunei has been implementing a "Sharia Penal Code", which includes provisions for stoning and amputation, in stages since 2014.[122][123] The countries where hudud penalties are legal do not use stoning and amputation routinely, and generally apply other punishments instead.[4][116][124]
Muslim-minority countries
Sharia also plays a role beyond religious rituals and personal ethics in some countries with Muslim minorities. For example, in Israel Sharia-based family laws are administered for the Muslim population by the Ministry of Justice through the Sharia Courts.[125] In India, the Muslim Personal Law (Shariat) Application Act provides for the use of Islamic law for Muslims in several areas, mainly related to family law.[126] In England, the Muslim Arbitration Tribunal makes use of Sharia family law to settle disputes, though this limited adoption of Sharia is controversial.[127][128][129]
Court procedures
Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. In Saudi Arabia and Qatar, which have preserved traditional procedure in Sharia courts, trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents[130] under the principle of stare decisis,[131] and unlike civil law, Sharia is left to the interpretation in each case and has no formally codified universal statutes.[132]
The rules of evidence in Sharia courts traditionally prioritize oral testimony, and witnesses must be Muslim.[133] Male Muslim witnesses are deemed more reliable than female Muslim witnesses, and non-Muslim witnesses considered unreliable and receive no priority in a Sharia court.[134][135] In civil cases in some countries, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.[136][137] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of Sharia, such as those found in Hanbali jurisprudence, which forms the basis of law in Saudi Arabia.[133]
Criminal cases
A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible in traditional sharia courts for hudud crimes, i.e., the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft.[138][139][140][141] According to classical jurisprudence, testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male.[142] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence may likewise rejected in hudud cases in favor of eyewitnesses in some modern interpretations. In the case of regulations that were part of local Malaysian legislation that did not go into effect, this could cause severe difficulties for women plaintiffs in rape cases.[143][144] In Pakistan, DNA evidence is rejected in paternity cases on the basis of legislation that favors the presumption of children's legitimacy, while in sexual assault cases DNA evidence is regarded as equivalent to expert opinion and evaluated on a case-by-case basis.[145]
Civil cases
Quran 2:282 recommends written financial contracts with reliable witnesses, although there is dispute about equality of female testimony.[137]
Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice (Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a Sharia court as a form of debt. Written contracts were traditionally considered paramount in Sharia courts in the matters of dispute that are debt-related, which includes marriage contracts.[146] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.[147]
In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses historically triumphed over written contracts. Islamic jurists traditionally held that written commercial contracts may be forged.[147][148] Timur Kuran states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim-majority nations and communities.[148][149]
In lieu of written evidence, oaths are traditionally 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.[150] 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."[151] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[151] instead oaths are a solemn procedure performed as a final part of the evidence process.
Diya
In classical jurisprudence monetary compensation for bodily harm (diya or blood money) is assessed differently for different classes of victims. For example, for Muslim women the amount was half that assessed for a Muslim man.[152][153] Diya for the death of a free Muslim man is twice as high as for Jewish and Christian victims according to the Maliki and Hanbali madhhabs and three times as high according to Shafi'i rules.[154] Several legal schools assessed diya for Magians (majus) at one-fifteenth the value of a free Muslim male.[154]
Modern countries which incorporate classical diya rules into their legal system treat them in different ways. The Pakistan Penal Code modernized the Hanafi doctrine by eliminating distinctions between Muslims and non-Muslims.[155] In Iran, diya for non-Muslim victims professing one of the faiths protected under the constitution (Jews, Christians, and Zoroastrians) was made equal to diya for Muslims in 2004,[156] though according to a 2006 US State Department report, the penal code still discriminates against other religious minorities and women.[157] According to Human Rights Watch and the US State Department, in Saudi Arabia Jewish or Christian male plaintiffs are entitled to half the amount a Muslim male would receive, while for all other non-Muslim males the proportion is one-sixteenth.[158][159][160]
Role of fatwas
The spread of codified state laws and Western-style legal education in the modern Muslim world has displaced traditional muftis from their historical role of clarifying and elaborating the laws applied in courts.[161][162] Instead, fatwas have increasingly served to advise the general public on other aspects of Sharia, particularly questions regarding religious rituals and everyday life.[161][163] Modern fatwas deal with topics as diverse as insurance, sex-change operations, moon exploration and beer drinking.[163] Most Muslim-majority states have established national organizations devoted to issuing fatwas, and these organizations to a considerable extent replaced independent muftis as religious guides for the general population.[164] State-employed muftis generally promote a vision of Islam that is compatible with state law of their country.[12]
Modern public and political fatwas have addressed and sometimes sparked controversies in the Muslim world and beyond.[12] Ayatollah Khomeini's proclamation condemning Salman Rushdie to death for his novel The Satanic Verses is credited with bringing the notion of fatwa to world's attention,[12][163] although some scholars have argued that it did not qualify as one.[note 7] Together with later militant fatwas, it has contributed to the popular misconception of the fatwa as a religious death warrant.[166]
Modern fatwas have been marked by an increased reliance on the process of ijtihad, i.e. deriving legal rulings based on an independent analysis rather than conformity with the opinions of earlier legal authorities (taqlid),[166] and some of them are issued by individuals who do not possess the qualifications traditionally required of a mufti.[12] The most notorious examples are the fatwas of militant extremists.[166] When Osama Bin Laden and his associates issued a fatwa in 1998 proclaiming "jihad against Jews and Crusaders", many Islamic jurists, in addition to denouncing its content, stressed that bin Laden was not qualified to either issue a fatwa or proclaim a jihad.[12] New forms of ijtihad have also given rise to fatwas that support such notions as gender equality and banking interest, which are at variance with classical jurisprudence.[166]
In the internet age, a large number of websites provide fatwas in response to queries from around the world, in addition to radio shows and satellite television programs offering call-in fatwas.[12] Erroneous and sometimes bizarre fatwas issued by unqualified or eccentric individuals in recent times have sometimes given rise to complaints about a "chaos" in the modern practice of issuing fatwas.[163] There exists no international Islamic authority to settle differences in interpretation of Islamic law. An International Islamic Fiqh Academy was created by the Organisation of Islamic Cooperation, but its legal opinions are not binding.[162] The vast amount of fatwas produced in the modern world attests to the importance of Islamic authenticity to many Muslims. However, there is little research available to indicate to what extent Muslims acknowledge the authority of different muftis or heed their rulings in real life.[166]
Role of hisba
The classical doctrine of hisba, associated with the Quranic injunction of enjoining good and forbidding wrong, refers to the duty of Muslims to promote moral rectitude and intervene when another Muslim is acting wrongly.[167][168] Historically, its legal implementation was entrusted to a public official called muhtasib (market inspector), who was charged with preventing fraud, disturbance of public order and infractions against public morality. This office disappeared in the modern era everywhere in the Muslim world, but it was revived in Arabia by the first Saudi state, and later instituted as a government committee responsible for supervising markets and public order. It has been aided by volunteers enforcing attendance of daily prayers, gender segregation in public places, and a conservative notion of hijab.[167] Committee officers were authorized to detain violators before a 2016 reform.[169] With the rising international influence of Wahhabism, the conception of hisba as an individual obligation to police religious observance has become more widespread, which led to the appearance of activists around the world who urge fellow Muslims to observe Islamic rituals, dress code, and other aspects of Sharia.[167]
In Iran, hisba was enshrined in the constitution after the 1979 Revolution as a "universal and reciprocal duty", incumbent upon both the government and the people. Its implementation has been carried out by official committees as well as volunteer forces (basij).[167][172] Elsewhere, policing of various interpretations of Sharia-based public morality has been carried out by the Kano State Hisbah Corps in the Nigerian state of Kano,[173] by Polisi Perda Syariah Islam in the Aceh province of Indonesia,[174] by the Committee for the Propagation of Virtue and the Prevention of Vice in the Gaza Strip, and by the Taleban during their 1996-2001 rule of Afghanistan.[167] Religious police organizations tend to have support from conservative currents of public opinion, but their activities are often disliked by other segments of the population, especially liberals, urban women, and younger people.[175]
In Egypt, a law based on the doctrine of hisba had for a time allowed a Muslim to sue another Muslim over beliefs that may harm society, though because of abuses it has been amended so that only the state prosecutor may bring suit based on private requests.[176] Before the amendment was passed, a hisba suit brought by a group of Islamists against the liberal theologian Nasr Abu Zayd on charges of apostasy led to annulment of his marriage.[177][178] The law was also invoked in an unsuccessful blasphemy suit against the feminist author Nawal El Saadawi.[176] Hisba has also been invoked in several Muslim-majority countries as rationale for blocking pornographic content on the internet and for other forms of faith-based censorship.[179]
Support and opposition
Support
A 2013 survey based on interviews of 38,000 Muslims, randomly selected from urban and rural parts in 39 countries using area probability designs, by the Pew Forum on Religion and Public Life found that a majority—in some cases "overwhelming" majority—of Muslims in a number of countries support making "Sharia" or "Islamic law" the law of the land, including Afghanistan (99%), Iraq (91%), Niger (86%), Malaysia (86%), Pakistan (84%), Morocco (83%), Bangladesh (82%), Egypt (74%), Indonesia (72%), Jordan (71%), Uganda (66%), Ethiopia (65%), Mali (63%), Ghana (58%), and Tunisia (56%).[180] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less than 50%: Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Kosovo (20%), Albania (12%), Turkey (12%), Kazakhstan (10%), Azerbaijan (8%). Regional averages of support were 84% in South Asia, 77% in Southeast Asia, 74% in the Middle-East/North Africa, 64%, in Sub-Saharan Africa, 18% in Southern-Eastern Europe, and 12% in Central Asia .[180]
However, while most of those who support implementation of Sharia favor using it in family and property disputes, fewer supported application of severe punishments such as whippings and cutting off hands, and interpretations of some aspects differed widely.[180] According to the Pew poll, among Muslims who support making Sharia the law of the land, most do not believe that it should be applied to non-Muslims. In the Muslim-majority countries surveyed this proportion varied between 74% (of 74% in Egypt) and 19% (of 10% in Kazakhstan), as percentage of those who favored making Sharia the law of the land.[181]
In all of the countries surveyed, respondents were more likely to define Sharia as "the revealed word of God" rather than as "a body of law developed by men based on the word of God".[182] In analyzing the poll, Amaney Jamal has argued that there is no single, shared understanding of the notions "Sharia" and "Islamic law" among the respondents. In particular, in countries where Muslim citizens have little experience with rigid application of Sharia-based state laws, these notions tend to be more associated with Islamic ideals like equality and social justice than with prohibitions.[183] Other polls have indicated that for Egyptians, the word "Sharia" is associated with notions of political, social and gender justice.[184]
In 2008, Rowan Williams, the Archbishop of Canterbury, has suggested that Islamic and Orthodox Jewish courts should be integrated into the British legal system alongside ecclesiastical courts to handle marriage and divorce, subject to agreement of all parties and strict requirements for protection of equal rights for women.[185] His reference to the sharia sparked a controversy.[185] Later that year, Nicholas Phillips, then Lord Chief Justice of England and Wales, stated that there was "no reason why sharia principles [...] should not be the basis for mediation or other forms of alternative dispute resolution."[186] A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed supported the introduction of sharia into British law for Muslims.[187] Michael Broyde, professor of law at Emory University specializing in alternative dispute resolution and Jewish law,[188] has argued that sharia courts can be integrated into the American religious arbitration system, provided that they adopt appropriate institutional requirements as American rabbinical courts have done.[189]
Opposition
In the Western world, Sharia has been called a source of "hysteria",[190] "more controversial than ever", the one aspect of Islam that inspires "particular dread".[191] On the Internet, "dozens of self-styled counter-jihadis" emerged to campaign against Sharia law, describing it in strict interpretations resembling those of Salafi Muslims.[191] Also, fear of Sharia law and of the ideology of extremism among Muslims as well as certain congregations donating money to terrorist organizations within the Muslim community reportedly spread to mainstream conservative Republicans in the United States.[192] Former House Speaker Newt Gingrich won ovations calling for a federal ban on Sharia law.[192] The issue of "liberty versus Sharia" was called a "momentous civilisational debate" by right-wing pundit Diana West.[193] In 2008 in Britain, the future Prime Minister (David Cameron) declared his opposition to "any expansion of Sharia law in the UK."[194] In Germany, in 2014, the Interior Minister (Thomas de Maizière) told a newspaper (Bild), "Sharia law is not tolerated on German soil."[195]
Some countries and jurisdictions have explicit bans on sharia law. In Canada, for example, sharia law has been explicitly banned in Quebec by a 2005 unanimous vote of the National Assembly,[196] while the province of Ontario allows family law disputes to be arbitrated only under Ontario law.[197] In the U.S., opponents of Sharia have sought to ban it from being considered in courts, where it has been routinely used alongside traditional Jewish and Catholic laws to decide legal, business, and family disputes subject to contracts drafted with reference to such laws, as long as they do not violate secular law or the U.S. constitution.[21] After failing to gather support for a federal law making observing Sharia a felony punishable by up to 20 years in prison, anti-Sharia activists have focused on state legislatures.[21] By 2014, bills aimed against use of Sharia have been introduced in 34 states and passed in 11.[21] These bills have generally referred to banning foreign or religious law in order to thwart legal challenges.[21]
According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "[a]nthropological 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."[198]
Contemporary debates and controversies
Compatibility with democracy
It has been argued that the extent to which Sharia is compatible with democracy depends on how it is culturally interpreted,[199] with a cultural position that Sharia represents the human attempt to interpret God’s message associated with a greater preference for democracy than an islamist interpretation that Sharia law is the literal word of God [199].
General Muslim views
Esposito and DeLong-Bas distinguish four attitudes toward Sharia and democracy prominent among Muslims today:[200]
- Advocacy of democratic ideas, often accompanied by a belief that they are compatible with Islam, which can play a public role within a democratic system, as exemplified by many protestors who took part in the Arab Spring uprisings;
- Support for democratic procedures such as elections, combined with religious or moral objections toward some aspects of Western democracy seen as incompatible with sharia, as exemplified by Islamic scholars like Yusuf al-Qaradawi;
- Rejection of democracy as a Western import and advocacy of traditional Islamic institutions, such as shura (consultation) and ijma (consensus), as exemplified by supporters of absolute monarchy and radical Islamist movements;
- Belief that democracy requires restricting religion to private life, held by a minority in the Muslim world.
Polls conducted by Gallup and PEW in Muslim-majority countries indicate that most Muslims see no contradiction between democratic values and religious principles, desiring neither a theocracy, nor a secular democracy, but rather a political model where democratic institutions and values can coexist with the values and principles of Sharia.[201][202][203]
Islamic political theories
Muslih and Browers identify three major perspectives on democracy among prominent Muslims thinkers who have sought to develop modern, distinctly Islamic theories of socio-political organization conforming to Islamic values and law:[204]
- The rejectionist Islamic view, elaborated by Sayyid Qutb and Abul A'la Maududi, condemns imitation of foreign ideas, drawing a distinction between Western democracy and the Islamic doctrine of shura (consultation between ruler and ruled). This perspective, which stresses comprehensive implementation of Sharia, was widespread in the 1970s and 1980s among various movements seeking to establish an Islamic state, but its popularity has diminished in recent years.
- The moderate Islamic view stresses the concepts of maslaha (public interest), ʿadl (justice), and shura. Islamic leaders are considered to uphold justice if they promote public interest, as defined through shura. In this view, shura provides the basis for representative government institutions that are similar to Western democracy, but reflect Islamic rather than Western liberal values. Hasan al-Turabi, Rashid al-Ghannushi, and Yusuf al-Qaradawi have advocated different forms of this view.
- The liberal Islamic view is influenced by Muhammad Abduh's emphasis on the role of reason in understanding religion. It stresses democratic principles based on pluralism and freedom of thought. Authors like Fahmi Huwaidi and Tariq al-Bishri have constructed Islamic justifications for full citizenship of non-Muslims in an Islamic state by drawing on early Islamic texts. Others, like Mohammed Arkoun and Nasr Hamid Abu Zayd, have justified pluralism and freedom through non-literalist approaches to textual interpretation. Abdolkarim Soroush has argued for a "religious democracy" based on religious thought that is democratic, tolerant, and just. Islamic liberals argue for the necessity of constant reexamination of religious understanding, which can only be done in a democratic context.
European Court of Human Rights
In 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party over its announced intention to introduce Sharia-based laws, ruling that it would change Turkey's secular order and undermine democracy.[205] On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".[206][207][208] 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".[209] In an analysis, Maurits S. Berger found the ruling to be "nebulous" and surprising from a legal point of view, since the Court neglected to define what it meant by "Sharia" and would not, for example, be expected to regard Sharia rules for Islamic rituals as contravening European human rights values.[210] Kevin Boyle also criticized the decision for not distinguishing between extremist and mainstream interpretations of Islam and implying that peaceful advocacy of Islamic doctrines ("an attitude which fails to respect [the principle of secularism]") is not protected by the European Convention provisions for freedom of religion.[211]
Compatibility with human rights
Governments of several predominantly Muslim countries have 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 declared in the UN assembly that UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.[212] Islamic scholars and Islamist political parties consider 'universal human rights' arguments as imposition of a non-Muslim culture on Muslim people, a disrespect of customary cultural practices and of Islam.[213][214] In 1990, the Organisation of Islamic Cooperation, a group representing all Muslim-majority nations, met in Cairo to respond to the UDHR, then adopted the Cairo Declaration on Human Rights in Islam.[215][216]
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".[217]
In 2009, the journal Free Inquiry summarized the criticism of the Cairo Declaration 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, Bangladesh, 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."[218]
H. Patrick Glenn states that Sharia is structured around the concept of mutual obligations of a collective, and it considers individual human rights as potentially disruptive and unnecessary to its revealed code of mutual obligations. In giving priority to this religious collective rather than individual liberty, the Islamic law justifies the formal inequality of individuals (women, non-Islamic people).[219] Bassam Tibi states that Sharia framework and human rights are incompatible.[220] Abdel al-Hakeem Carney, in contrast, states that Sharia is misunderstood from a failure to distinguish Sharia from siyasah (politics).[221]
Blasphemy
In classical fiqh, blasphemy refers to any form of cursing, questioning or annoying God, Muhammad or anything considered sacred in Islam,[222][223][224][225] including denying one of the Islamic prophets or scriptures, insulting an angel or refusing to accept a religious commandment.[226] Jurists of different schools prescribed different punishment for blasphemy against Islam, by Muslims and non-Muslims, ranging from imprisonment or fines to the death penalty.[222][227][228][229] In some cases, sharia allows non-Muslims to escape death by converting and becoming a devout follower of Islam.[230] In the modern Muslim world, the laws pertaining to blasphemy vary by country, and some countries prescribe punishments consisting of fines, imprisonment, flogging, hanging, or beheading.[231]
Blasphemy laws were rarely enforced in pre-modern Islamic societies, but in the modern era some states and radical groups have used charges of blasphemy in an effort to burnish their religious credentials and gain popular support at the expense of liberal Muslim intellectuals and religious minorities.[232]
Blasphemy, as interpreted under Sharia, is controversial.[233] Representatives of the Organisation of Islamic Cooperation have petitioned the United Nations to condemn "defamation of religions" because "Unrestricted and disrespectful freedom of opinion creates hatred and is contrary to the spirit of peaceful dialogue".[234] The Cairo Declaration on Human Rights in Islam subjects free speech to unspecified Sharia restrictions: Article 22(a) of the Declaration states that "Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariah."[235] Others, in contrast, consider blasphemy laws to violate freedom of speech,[236] stating that freedom of expression is essential to empowering both Muslims and non-Muslims, and point to the abuse of blasphemy laws in prosecuting members of religious minorities, political opponents, and settling personal scores.[237][238][239] In Pakistan, blasphemy laws have been used to convict more than a thousand people, about half of them Ahmadis and Christians.[240][239] While none have been legally executed,[240] two Pakistani politicians, Shahbaz Bhatti and Salmaan Taseer, have been assassinated over their criticism of the blasphemy laws. Although the laws were inherited from British colonial legislation and then expanded and "Islamized" in the 1980s, many Pakistanis believe that they are taken directly from the Quran.[239]
Apostasy
According to the classical doctrine, apostasy from Islam is a crime as well as a sin, punishable with the death penalty,[242][243] typically after a waiting period to allow the apostate time to repent and to return to Islam.[242][244][245][246] Wael Hallaq writes that "[in] a culture whose lynchpin is religion, religious principles and religious morality, apostasy is in some way equivalent to high treason in the modern nation-state".[247] Early Islamic jurists set the standard for apostasy from Islam so high that practically no apostasy verdict could be passed before the 11th century,[248] but later jurists lowered the bar for applying the death penalty, allowing judges to interpret the apostasy law in different ways,[248] which they did sometimes leniently and sometimes strictly.[249] In the late 19th century, the use of criminal penalties for apostasy fell into disuse, although civil penalties were still applied.[242]
According to Abdul Rashied Omar, the majority of modern Islamic jurists continue to regard apostasy as a crime deserving the death penalty.[244] This view is dominant in conservative societies like Saudi Arabia and Pakistan. A number of liberal and progressive Islamic scholars have argued that apostasy should not be viewed as a crime.[250] [251][242][252] Others argue that the death penalty is an inappropriate punishment,[253][254] inconsistent with the Qur'anic verses such as "no compulsion in religion";[250] and/or that it was a man-made rule enacted in the early Islamic community to prevent and punish the equivalent of desertion or treason,[255] and should be enforced only if apostasy becomes a mechanism of public disobedience and disorder (fitna).[256] According to Khaled Abou El Fadl, moderate Muslims do not believe that apostasy requires punishment.[257] Critics[258][259] argue that the death penalty or other punishment for apostasy in Islam is a violation of universal human rights, and an issue of freedom of faith and conscience.[253][260]
Twenty-three Muslim-majority countries, as of 2013, penalized apostasy from Islam through their criminal laws.[261] As of 2014, apostasy from Islam was a capital offense in Afghanistan, Brunei, Mauritania, Qatar, Saudi Arabia, Sudan, the United Arab Emirates, and Yemen.[262][263] In other countries, Sharia courts could use family laws to void the Muslim apostate's marriage and to deny child-custody rights as well as inheritance rights.[264] In the years 1985–2006, four individuals were legally executed for apostasy from Islam: "one in Sudan in 1985; two in Iran, in 1989 and 1998; and one in Saudi Arabia in 1992."[250] While modern states have rarely prosecuted apostasy, the issue has a "deep cultural resonance" in some Muslim societies and Islamists have tended to exploit it for political gain.[250] In a 2008-2012 Pew Research Center poll, public support for capital punishment for apostasy among Muslims ranged from 78% in Afghanistan to less than 1% in Kazakhstan, reaching over 50% in 6 of the 20 countries surveyed.
LGBT rights
Homosexual intercourse is illegal in classical Sharia, with different penalties, including capital punishment, stipulated depending of the situation and legal school. In pre-modern Islam, the penalties prescribed for homosexual acts were "to a large extent theoretical", owing in part to stringent procedural requirements for their harsher (hudud) forms and in part to prevailing social tolerance toward same-sex relationships.[265] Historical instances of prosecution for homosexual acts are rare, and those which followed Sharia rules are even rarer.[266] Public attitudes toward homosexuality in the Muslim world turned more negative starting from the 19th century under the influence of sexual notions prevalent in Europe at that time.[267][268] A number of Muslim-majority countries have retained criminal penalties for homosexual acts enacted under colonial rule.[269][270] In recent decades, prejudice against LGBT individuals in the Muslim world has been exacerbated by increasingly conservative attitudes and the rise of Islamist movements, resulting in Sharia-based penalties enacted in several countries.[270] The death penalty for homosexual acts is currently a legal punishment in Brunei, Iran, Mauritania, some northern states in Nigeria, Pakistan, Qatar, Saudi Arabia, parts of Somalia, Sudan, and Yemen, all of which have Sharia-based criminal laws. It is unclear whether the laws of Afghanistan and United Arab Emirates provide for the death penalty for gay sex, as they have never been carried out.[271][272] Criminalization of consensual homosexual acts and especially making them liable to capital punishment has been condemned by international rights groups. According to polls, the level of social acceptance for homosexuality ranges from 52% among Muslims in the U.S. to less than 10% in a number of Muslim-majority nations.
Terrorism
Some extremists have used their interpretation of Islamic scriptures and Sharia, in particular the doctrine of jihad, to justify acts of war and terror against Muslim as well as non-Muslim individuals and governments.[273][274][275] The expert on terrorism Rachel Ehrenfeld wrote that the "Sharia's finance (Islamic banking) is a new weapon in the arsenal of what might be termed fifth-generation warfare (5GW)".[276]
In classical fiqh, the term jihad refers to armed struggle against unbelievers.[277][278] Classical jurists developed an elaborate set of rules pertaining to jihad, including prohibitions on harming those who are not engaged in combat.[279][280] According to Bernard Lewis, "[a]t no time did the classical jurists offer any approval or legitimacy to what we nowadays call terrorism"[281] and the terrorist practice of suicide bombing "has no justification in terms of Islamic theology, law or tradition".[282] In the modern era the notion of jihad has lost its jurisprudential relevance and instead gave rise to an ideological and political discourse.[283] While modernist Islamic scholars have emphasized defensive and non-military aspects of jihad, some radical Islamists have advanced aggressive interpretations that go beyond the classical theory.[283] For al-Qaeda ideologues, in jihad all means are legitimate, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians.[273] According to these interpretations, Islam does not discriminate between military and civilian targets, but rather between Muslims and nonbelievers, whose blood can be legitimately spilled.[273]
Some modern ulema, such as Yusuf al-Qaradawi and Sulaiman Al-Alwan, have supported suicide attacks against Israeli civilians, arguing that they are army reservists and hence should be considered as soldiers, while Hamid bin Abdallah al-Ali declared that suicide attacks in Chechnya were justified as a "sacrifice".[273][284] Many prominent Islamic scholars, including al-Qaradawi himself, have issued condemnations of terrorism in general terms.[285] For example, Abdul-Aziz ibn Abdullah Al ash-Sheikh, the Grand Mufti of Saudi Arabia has stated that "terrorizing innocent people [...] constitute[s] a form of injustice that cannot be tolerated by Islam", while Muhammad Sayyid Tantawy, Grand Imam of al-Azhar and former Grand Mufti of Egypt has stated that "attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment".[273][286]
Women
Domestic violence
According to some interpretations, Sharia condones certain forms of domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.[287] Others believe that wife beating is not consistent with modern perspectives of the Quran.[288]
One of the verses of the Quran relating to permissibility of domestic violence is Surah 4:34, which has been subject to varied interpretations.[289][290] Traditional interpretations of Sharia have been criticized as inconsistent with women's rights in domestic abuse cases.[291][292][293][294] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify Sharia-inspired laws to improve women's rights in Muslim-majority nations, including women's rights in domestic abuse cases.[295][296][297][298]
Personal status laws and child marriage
Shari'a is the basis for personal status laws in most Islamic-majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report concludes that Sharia law provisions are discriminatory against women from a human rights perspective. In many countries, in legal proceedings relating to Sharia-based personal status law, a woman's testimony is worth half of a man's before a court.[136]
The 1917 codification of Islamic family law in the Ottoman empire distinguished between the age of competence for marriage, which was set at 18 for boys and 17 for girls, and the minimum age for marriage, which followed the traditional Hanafi limits of 12 for boys and 9 for girls. Marriage below the age of competence was permissible only if proof of sexual maturity was accepted in court, while marriage under the minimum age was forbidden. During the 20th century, most countries in the Middle East followed the Ottoman precedent in defining the age of competence, while raising the minimum age to 15 or 16 for boys and 13-16 for girls. Marriage below the age of competence is subject to approval by a judge and the legal guardian of the adolescent. Egypt diverged from this pattern by setting the age limits of 18 for boys and 16 for girls, without a distinction between competence for marriage and minimum age.[299] Many senior clerics in Saudi Arabia have opposed setting a minimum age for marriage, arguing that a woman reaches adulthood at puberty.[300]
Rape is considered a crime in all countries of the North Africa and Middle East region, but as of 2011, Sharia-based or secular laws in some countries, including Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia, allowed a rapist to escape punishment by marrying his victim, while in other countries, including Libya, Oman, Saudi Arabia and United Arab Emirates, rape victims who press charges risk being prosecuted for extramarital sex (zina).[136][301][302]
Women's property rights
Islamic law granted Muslim women certain legal rights, such as property rights which women in the West did not possess until "comparatively recent times".[303][304][305] Starting with the 20th century, Western legal systems evolved to expand women's rights, but women's rights in the Muslim world have to varying degree remained tied to the Quran, hadiths and their traditional interpretations by Islamic jurists.[306][307] Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran.[308] A woman's inheritance is unequal and less than a man's, and dependent on many factors.[Quran 4:12][309] For instance, a daughter's inheritance is usually half that of her brother's.[Quran 4:11][309]
Slavery
Sharia recognizes the basic inequality between master and women slave, between free women and slave women, between Believers and non-Believers, as well as their unequal rights.[310][311] Sharia authorized the institution of slavery, using the words abd (slave) and the phrase ma malakat aymanukum ("that which your right hand owns") to refer to women slaves, seized as captives of war.[310][312] Under Islamic law, Muslim men could have sexual relations with female captives and slaves.[313][306] Slave women under sharia did not have a right to own property or to move freely.[314][315] Sharia, in Islam's history, provided a religious foundation for enslaving non-Muslim women (and men), but allowed for the manumission of slaves. However, manumission required that the non-Muslim slave first convert to Islam.[316][317] A slave woman who bore a child to her Muslim master (umm al-walad) could not be sold, becoming legally free upon her master's death, and the child was considered free and a legitimate heir of the father.[318][319]
Comparison with other legal systems
Jewish law
Islamic legal tradition has a number of parallels with Judaism. In both religions, revealed law holds a central place, in contrast to Christianity which does not possess a body of revealed law, and where theology rather than law is considered to be the principal field of religious study.[320] Both Islamic and Jewish law (Halakha) are derived from formal textual revelations (Quran and Pentateuch) as well as less formal, orally transmitted prophetic traditions (hadith and mishna). According to some scholars, the words sharia and halakha both mean literally "the path to follow". The fiqh literature parallels rabbinical law developed in the Talmud, with fatwas being analogous to rabbinic responsa.[321][164] However, the emphasis on qiyas in classical Sunni legal theory is both more explicitly permissive than Talmudic law with respect to authorizing individual reason as a source of law, and more implicitly restrictive, in excluding other, unauthorized forms of reasoning.[321]
Western legal systems
Early Islamic law developed a number of legal concepts that anticipated similar such concepts that later appeared in English common law.[322][323] Similarities exist between the royal English contract protected by the action of debt and the Islamic Aqd, between the English assize of novel disseisin and the Islamic Istihqaq, and between the English jury and the Islamic Lafif in classical Maliki jurisprudence.[322][324] The law schools known as Inns of Court also parallel Madrasahs.[322] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems,[325] as are the English trust and agency institutions to the Islamic Waqf and Hawala institutions, respectively.[326][327][323]
Elements of Islamic law also have other parallels in Western legal systems. For example, the influence of Islam on the development of an international law of the sea can be discerned alongside that of the Roman influence.[328]
George Makdisi has argued that the madrasa system of attestation paralleled the legal scholastic system in the West, which gave rise to the modern university system. The triple status of faqih ("master of law"), mufti ("professor of legal opinions") and mudarris ("teacher"), conferred by the classical Islamic legal degree, had its equivalents in the medieval Latin terms magister, professor and doctor, respectively, although they all came to be used synonymously in both East and West.[329] Makdisi suggested that the medieval European doctorate, licentia docendi was modeled on the Islamic degree ijazat al-tadris wa-l-ifta’, of which it is a word-for-word translation, with the term ifta’ (issuing of fatwas) omitted.[329][330] He also argued that these systems shared fundamental freedoms: the freedom of a professor to profess his personal opinion and the freedom of a student to pass judgement on what he is learning.[329]
There are differences between Islamic and Western legal systems. For example, 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.[331] Interest prohibitions imposed secondary costs by discouraging record keeping and delaying the introduction of modern accounting.[332] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.[333]
See also
- Dīn
- Glossary of Islam
- Guardianship of the Islamic Jurists
- Imam Nawawi's Forty Hadith, a brief collection of forty hadith by the founder of the Shāfiʿī school, each used to illustrate a fundamental of shariah.
- Islamic republic
- Islamic Sharia Council, a court in the United Kingdom with no legal authority.
- Ma'ruf
- Theonomy
References
Notes
- Twelver Shia jurisprudence does not recognize the use of qiyas, but relies on reason (ʿaql) in their place.[7]
- “... the essential features of old Muhammadan jurisprudence, such as the idea of the `living tradition` of the ancient schools of law [local practices of early Muslim communities]; a body of common doctrine expressing the earliest effort to systematize; legal maxims which often reflect a slightly later stage, and an important nucleus of legal traditions ... it is safe to say that [this] Muhammadan legal science started in the later part of the Umaiyad period, taking the legal practice of the time as its raw material and endorsing, modifying, or rejecting it, ...” ,[39]
- Islamic "law did not derive directly from the Koran but developed ... out of popular and administrative practices under the Umayyads, and this practice often diverged from the intentions and even the explicit wording of the Koran ... Norms derived from the Koran were introduced into Muhammadan law almost invariably at a secondary stage"[40]
- “In the time of Shafi’i, traditions from the Prophet were already recognized as one of the material bases of Muhammadan law. Their position in the ancient schools of law was, as we have seen, much less certain.”[41] [...] another example is that an early major works of fiqh — Muwatta Imam Malik (edited by Shaibani) — contains 429 ahadith by Muhammad but 750 by the Companions, Successors and others,[42] in contrast to later works by al-Bukhari, Muslim, etc. that contain only ahadith by Muhammad
- ”a great many traditions in the classical and other collections were put into circulation only after Shafi'i's time; the first considerable body of legal traditions from the Prophet originated towards the middle of the second century, …”[48]
- "What theology is for the Christian, law is for the Muslim."[72] referenced in [73]
- Khomeini himself did not call this proclamation a fatwa, and in Islamic legal theory only a court can decide whether an accused is guilty. However, after the proclamation was presented as a fatwa in Western press, this characterization was widely accepted by both its critics and its supporters.[161][165]
Citations
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- Editors, History com. "Islam". HISTORY. Retrieved 24 January 2020.CS1 maint: extra text: authors list (link)
- John L. Esposito, ed. (2014). "Islamic Law". The Oxford Dictionary of Islam. Oxford: Oxford University Press. Archived from the original on 31 March 2019. Retrieved 29 January 2017.
- Vikør 2014.
- Calder 2009.
- Amanat 2009: "Muslim fundamentalists [...] claim that Shari’a and its sources [...] constitute a divine law that regulates all aspects of Muslim life, as well as Muslim societies and Muslim states [...]. Muslim modernists, [...] on the other hand, criticize the old approaches to Shari’a by traditional Muslim jurists as obsolete and instead advocate innovative approaches to Shari’a that accommodate more pluralist and relativist views within a democratic framework."
- Schneider 2014.
- John L. Esposito, Natana J. DeLong-Bas (2001), Women in Muslim family law Archived 19 October 2017 at the Wayback Machine, p. 2. Syracuse University Press, ISBN 978-0815629085. Quote: "[...], by the ninth century, the classical theory of law fixed the sources of Islamic law at four: the Quran, the Sunnah of the Prophet, qiyas (analogical reasoning), and ijma (consensus)."
- Coulson & El Shamsy 2019.
- Hallaq 2010, p. 145.
- Ziadeh 2009c.
- Dallal & Hendrickson 2009.
- Stewart 2013, p. 500.
- Mayer 2009.
- Otto 2008, p. 19.
- Rabb 2009d.
- Otto 2008, pp. 18–20.
- Stahnke, Tad and Robert C. Blitt (2005), "The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries." Georgetown Journal of International Law, volume 36, issue 4; also see Sharia Law profile by Country Archived 16 January 2014 at the Wayback Machine, Emory University (2011)
- Staff (3 January 2003). "Analysis: Nigeria's Sharia Split" Archived 12 July 2018 at the Wayback Machine. BBC News. Retrieved 19 September 2011. "Thousands of people have been killed in fighting between Christians and Muslims following the introduction of sharia punishments in northern Nigerian states over the past three years [...] human rights' groups have complained that these religious laws are archaic and unjust, and create an atmosphere of intimidation against Christians - even though they are not subject to the Sharia.".
- Harnischfeger, Johannes (2008).
• p. 16. "When the Governor of Kaduna announced the introduction of Sharia, although non-Muslims form almost half of the population, violence erupted, leaving more than 1,000 people dead."
• p. 189. "When a violent confrontation loomed in February 200, because the strong Christian minority in Kaduna was unwilling to accept the proposed sharia law, the sultan and his delegation of 18 emirs went to see the governor and insisted on the passage of the bill." - Thomas, Jeffrey L. (2015). Scapegoating Islam: Intolerance, Security, and the American Muslim. ABC-CLIO. pp. 83–86. ISBN 978-1440831003. Archived from the original on 13 December 2016. Retrieved 13 January 2017.
- An-Na'im, Abdullahi A (1996). "Islamic Foundations of Religious Human Rights". In Witte, John; van der Vyver, Johan D. (eds.). Religious Human Rights in Global Perspective: Religious Perspectives. pp. 337–59. ISBN 978-9041101792.
- Hajjar, Lisa (2004). "Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis". Law & Social Inquiry. 29 (1): 1–38. doi:10.1111/j.1747-4469.2004.tb00329.x. JSTOR 4092696.
- Al-Suwaidi, J. (1995). Arab and western conceptions of democracy; in Democracy, war, and peace in the Middle East (Editors: David Garnham, Mark A. Tessler), Indiana University Press, see Chapters 5 and 6; ISBN 978-0253209399
- Calder & Hooker 2007, p. 321.
- Otto 2008, pp. 9–10.
- Calder & Hooker 2007, p. 323.
- Calder & Hooker 2007, p. 326.
- Abdal-Haqq, Irshad (2006). Understanding Islamic Law – From Classical to Contemporary (edited by Aminah Beverly McCloud). Chapter 1 Islamic Law – An Overview of its Origin and Elements. AltaMira Press. p. 4.
- Hashim Kamali, Mohammad (2008). Shari'ah Law: An Introduction. Oneworld Publications. pp. 2, 14. ISBN 978-1851685653.
- Weiss, Bernard G. (1998). The Spirit of Islamic Law. Athens, Georgia: University of Georgia Press. p. 17. ISBN 978-0820319773.
- Ullmann, M. (2002), Wörterbuch der griechisch-arabischen Übersetzungen des neunten Jahrhunderts, Wiesbaden, p. 437. Rom. 7: 22: ‘συνήδομαι γὰρ τῷ νόμῳ τοῦ θεοῦ’ is translated as ‘أني أفرح بشريعة الله’
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Further reading
- Coulson, Noel J. (1964). A History of Islamic Law. Edinburgh: Edinburgh U.P.
- Hallaq, Wael B. (2009). An Introduction to Islamic Law. Cambridge: Cambridge U.P. ISBN 978-0521678735
- Schacht, Joseph (1964). An Introduction to Islamic Law. Oxford: Clarendon
- Vikør, Knut S. (2005). Between God and the Sultan: A History of Islamic Law. Oxford University Press.
- Weiss, Bernard G. (2006). The Spirit of Islamic Law. University of Georgia Press.
External links
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Wikimedia Commons has media related to Sharia. |
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Look up sharia in Wiktionary, the free dictionary. |
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Wikiquote has quotations related to: Sharia |
- Islamic law – in The Oxford Dictionary of Islam, via Oxford Islamic Studies Online
- Sharia by Knut S. Vikør – In The Oxford Encyclopedia of Islam and Politics, via Bridging Cultures, National Endowment for the Humanities & George Mason University
- Law by Norman Calder et al – In The Oxford Encyclopedia of the Islamic World, via Oxford Islamic Studies
- Brunei implements sharia law – UNAA (United Nations)
- Sharia Law in the International Legal Sphere – Yale University
- Private Arrangements: 'Recognizing Sharia' in Britain – anthropologist John R. Bowen explains the working of Britain's sharia courts in a Boston Review article
- Division of Inheritance According to Qur'an
- Explanation of "The Reward of the Omnipotent" is a manuscript, in Arabic, from the late 19th or early 20th century about Sharia
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