Definitions

sharia

sharia

[shah-ree-ah]
sharia, the religious law of Islam. As Islam makes no distinction between religion and life, Islamic law covers not only ritual but many aspects of life. The actual codification of canonic law is the result of the concurrent evolution of jurisprudence proper and the so-called science of the roots of jurisprudence (usul al-fiqh). A general agreement was reached, in the course of the formalization of Islam, as to the authority of four such roots: the Qur'an in its legislative segments; the example of the Prophet as related in the hadith; the consensus of the Muslims (ijma), premised on a saying by Muhammad stipulating "My nation cannot agree on an error"; and reasoning by analogy (qiyas). Another important principle is ijtihad, the extension of sharia to situations neither covered by precedent nor explicable by analogy to other laws. These roots provide the means for the establishment of prescriptive codes of action and for the evaluation of individual and social behavior. The basic scheme for all actions is a fivefold division into obligatory, meritorious, permissible, reprehensible, and forbidden. Numerous schools of jurisprudence emerged in the course of Islamic history. Four coexist today within Sunni Islam, with one or more dominant in particular areas—Maliki (N and W Africa), Hanafi (Turkic Asia), Shafii (Egypt, E Africa, SE Asia), and Hanbali (Saudi Arabia; see Ibn Hanbal, Ahmad). While these schools of jurisprudence vary on certain rituals and practices, they are often perceived as complementary rather than mutually exclusive. Twelve-Imam Shiite jurisprudence is often referred to as Jafari. Islamic law is an important legal influence, to a greater or lesser degree, in nearly all nations with a Muslim majority population; the primary exception is Turkey, which has been a secular state since Atatürk.
Sharia (Arabic: شريعة ) is the body of Islamic religious law. The term means "way" or "path to the water source"; it is the legal framework within which the public and private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence and for Muslims living outside the domain. Sharia deals with many aspects of day-to-day life, including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.

There is no strictly static set of laws of sharia. Sharia is more of a system of how law ought to serve humanity, a consensus of the unified spirit, based on the Qur'an (the religious text of Islam), hadith (sayings and doings of Muhammad and his companions), Ijma (consensus), Qiyas (reasoning by analogy) and centuries of debate, interpretation and precedent.

Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. Most Sunni Muslims follow Hanafi, Hanbali, Maliki or Shafii, while most Shia Muslims follow the jaafari school of thought and are considered Twelvers.

Islamic law is now the most widely used religious law, and one of the three most common legal systems of the world alongside common law and civil law. During the Islamic Golden Age, classical Islamic law had a fairly significant influence on the development of common law, and also influenced the development of several civil law institutions.

Etymology

The term sharia itself derives from the verb "shara'a" (شرع), which according to Abdul Mannan Omar's "Dictionary of the Holy Qur'an" connects to the idea of "system of divine law; way of belief and practice".

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

In the context of Islam



Mainstream Islam distinguishes between fiqh (deep understanding, discernment), which refers to the inferences drawn by scholars, and sharia, which refers to the principles that lie behind the fiqh. Scholars hope that fiqh (jurisprudence) and sharia (law) are in harmony in any given case, but they cannot be sure.

Sharia has certain laws which are regarded as divinely ordained, concrete and timeless for all relevant situations (for example, the ban against drinking liquor as an intoxicant). It also has certain laws which derived from principles established by Islamic lawyers and judges (mujtahidun).

Sources of Islamic law

The primary sources of Islamic law are the Qur'an and Sunnah.

To this, traditional Sunni Muslims add the consensus (ijma) of Muhammad's companions (sahaba) and Islamic jurists (ulema) on certain issues, and drawing analogy from the essence of divine principles and preceding rulings (qiyas). In situations where no concrete rules exist under the sources, law scholars use qiyas — various forms of reasoning, including by analogy. The consensus of the community or people, public interest, and others are also accepted as secondary sources where the first four primary sources allow.

Shi'a Muslims reject this approach. They strongly reject analogy (qiyas) as an easy way to innovations (bid'ah), and also reject consensus (ijma) as having any particular value in its own. During the period that the Sunni scholars developed those two tools, the Shi'a Imams were alive, and Shi'a view them as an extension of the Sunnah, so they view themselves as only deriving their laws (fiqh) from the Qur'an and Sunnah. A recurring theme in Shi'a jurisprudence is logic (mantiq), something Shi'a believe they mention, employ and value to a higher degree than Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Qur'an and Sunnah.

In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Qur'an, anecdotes of Muhammad's practices and those of the 12 Imams, and the intellect (aql). The practices called Sharia today, however, also have roots in local customs (al-urf).

Classical Islamic law

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

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

Origins

At the heart of Islamic law lies the teachings of God and the acts and sayings of His Prophet, Muhammad; therefore, sharia, Islamic law, is founded on the Qur'an and the Sunnah. However, sharia was not fully developed at the time of Muhammad's death, but rather it evolved around the Muslim community or Ummah through which it would serve.

When sharia began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born, a sense of community did not exist. Life in the desert was nomadic and tribal, thus the only factor that tied people together into various tribes was through common ancestry. However, the nature of Islam challenged that ideology and brought all those who professed their submission to Islam into the Ummah. Additionally, Islam was not just a religion but a way of life and being that it transformed those who were once enemies into neighbors laws had to be instilled and so the doctrines of sharia took root. All who are Muslim are judged by sharia – no matter the location or the culture.

However, people do not change overnight nor do their habits of everyday life – sharia was indeed guided through its development by lifestyles of the tribes in which was initially absorbed into Islam. Thus, through the understandings of the tribe, Islamic law would be a law of the community – for the community by the community – even if initially proposed by an individual “for they could not form part of the tribal law unless and until they were generally accepted as such.” Additionally, Noel James Coulson, Lecturer in Islamic Law of the University of London, states that “to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations.” So, while “each and every law must be rooted in either the Quran or the Sunna,” without contradiction, tribal life brought about a sense of participation. Such participation is further reinforced by Muhammad who stated, “My community will never agree in error” and thus, later recorded as a hadith.

After the death of Muhammad sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632-34) and Umar (634-44) in which many decision making matters were brought to the attention of the Prophet's closest comrades for consultation. In AD 662, during the reign of Mu'awiya b. Abu Sufyan, life ceased to be nomadic and undertook an urban transformation which in turn created matters not originally covered by Islamic law. Each and every gain, loss, and turn of Islamic society has played an active role in developing sharia which branches out into fiqh and Qanun respectively.

Comparisons with common law

The methodology of legal precedent and reasoning by analogy (Qiyas) used in Islamic law was similar to that of the common law legal system. According to Justice Gamal Moursi Badr, Islamic law is like common law in that it "is not a written law" and the "provisions of Islamic law are to be sought first and foremost in the teachings of the authoritative jurists" (Ulema), hence Islamic law may "be called a lawyer's law if common law is a judge's law."

English common law

Since the publication of legal scholar John Makdisi's "The Islamic Origins of the Common Law" in the North Carolina Law Review in 1999, there has been controversy over whether English common law was inspired by medieval Islamic law. It has been suggested by several scholars such as Professor John Makdisi, Jamila Hussain and Lawrence Rosen that several fundamental English common law institutions may have been derived or adapted from similar legal instututions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily (see Arab-Norman culture), and "through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England." and also by Crusaders during the Crusades. The connection with Norman law in Normandy may be real, but it should be remembered that common law owes a great deal to Anglo-Saxon traditions and forms, and in its current form represents an interplay between the two systems.

According to Makdisi, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif" in classical Maliki jurisprudence. The Islamic Hawala institution also influenced the development of the agency institution in English common law. Other English legal institutions such as "the scholastic method, the license to teach," the "law schools known as Inns of Court in England and Madrasas in Islam" may have also originated from Islamic law. These influences have led Makdisi to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".

The Waqf in Islamic law, which developed during the 7th-9th centuries, bears a notable resemblance to the trusts in the English trust law. For example, every Waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries. Under both a Waqf and a trust, "property is reserved, and its usufruct appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus becomes inalienable; estates for life in favor of successive beneficiaries can be created" and "without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees or mutawillis. The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East. Dr. Paul Brand also notes parallels between the Waqf and the trusts used to establish Merton College by Walter de Merton, who had connections with the Knights Templar. Brand also points out, however, that the Knights Templar were primarily concerned with fighting the Muslims rather than learning from them, making it less likely that they had knowledge of Muslim legal institutions. The introduction of the trust, or "use" was primarily motivated by the need to avoid medieval inheritance taxes. By transferring legal title to a third party, there was no need to pay feudal dues on the death of the father. In those times, it was common for an underage child to lose many of his rights to his feudal overlord if he succeeded before he came of age.

The precursor to the English jury trial was the Lafif trial in classical Maliki jurisprudence, which was developed between the 8th and 11th centuries in North Africa and Islamic Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters "which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff." The only characteristic of the English jury which the Islamic Lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to Professor John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus likely that the concept of the Lafif may have been introduced to England by the Normans and then evolved into the modern English jury. However, the hearing of trials before a body of citizens may have existed in courts before the Norman conquest.

The precursor to the English assize of novel disseisin was the Islamic Istihqaq, an action "for the recovery of usurped land", in contrast to the previous Roman law which "emphasized possession in resolving such disputes." The "assize of novel disseisin broke with this tradition and emphasized ownership, as is found in the Islamic law of Istihqaq. Islamic law also introduced the notion of allowing an accused suspect or defendant to have an agent or lawyer, known as a wakil, handle his/her defense. This was in contrast to early English common law, which "used lawyers to prosecute but the accused were left to handle their defense themselves." The English Parliament did not allow those accused of treason the right to retain lawyers until 1695, and for those accused of other felonies until 1836.

Islamic jurists formulated early contract laws which introduced the application of formal rationality, legal rationality, legal logic (see Logic in Islamic philosophy) and legal reasoning in the use of contracts. Islamic jurists also introduced the concepts of recession (Iqalah), frustration of purpose (istihalah al-tanfidh or "impossibility of performance"), Act of God (Afat Samawiyah or "Misfortune from Heaven") and force majeure in the law of contracts. However, recission, frustration and other core concepts in the law of contract are relatively recent introductions into the Law of England, dating back to the Victorian period. Early case law indicates that it was impossible to rescind a contract for frustration even where performance became impossible.

Other possible influences of Islamic law on English common law include the concepts of a passive judge, impartial judge, res judicata, the judge as a blank slate, individual self-definition, justice rather than morality, the law above the state, individualism, freedom of contract, privilege against self-incrimination, fairness over truth, individual autonomy, untrained and transitory decision making, overlap in testimonial and adjudicative tasks, appeal, dissent, day in court, prosecution for perjury, oral testimony, and the judge as a moderator, supervisor, announcer and enforcer rather than an adjudicator.

Law of the United States

Similarities between Islamic law and the common law of the United States have also been noted, particularly in regards to Constitutional law. According to Asifa Quraishi, the methods used in the judicial interpretation of the Constitution are similar to that of the Qur'an, including the methods of "plain meaning literalism, historical understanding “originalism,” and reference to underlying purpose and spirit. Sameer S. Vohra says the United States Constitution is similar to the Qur’an in that the Constitution is "the supreme law of the land and the basis from which the laws of the legislature originate."Vohra further notes that the legislature is similar to the Sunnah in that the "legislature takes the framework of the Constitution and makes directives that involve the specific day-to-day situations of its citizens." He also writes that the judicial decision-making process is similar to the qiyas and ijma methods in that judicial decision-making is "a means by which the law is applied to individual disputes", that "words of the Constitution or of statutes do not specifically address all the possible situations to which they may apply" and that "at times, it requires the judiciary to either use the consensus of previous decisions or reason by analogy to find the correct principle to resolve the dispute.

The earliest known lawsuits may also date back to Islamic law. There was a hadith tradition which reported that the Caliph Uthman Ibn Affan (580-656) attempted to sue a Jewish subject for recovery of a suit of armour, but his case was unsuccessful due to a lack of competent witnesses. The concept of a lawsuit was also described in the Ethics of the Physician by Ishaq bin Ali al-Rahwi (854–931) of al-Raha, Syria, as part of an early medical peer review process, where the notes of a practicing Islamic physician were reviewed by peers and he/she could be sued by a maltreated patient if the reviews were negative.

The earliest known prohibition of illegal drugs occurred under Islamic law, which prohibited the use of Hashish, a preparation of cannabis, as a recreational drug. Classical jurists in medieval Islamic jurisprudence, however, accepted the use of the Hashish drug for medicinal and therapeutic purposes, and agreed that its "medical use, even if it leads to mental derangement, remains exempt" from punishment. In the 14th century, the Islamic jurist Az-Zarkashi spoke of "the permissibility of its use for medical purposes if it is established that it is beneficial. According to Mary Lynn Mathre, with "this legal distinction between the intoxicant and the medical uses of cannabis, medieval Muslim theologians were far ahead of present-day American law.

Other comparisons

Other parallels to common law concepts in property law were found in classical Islamic property law, including the concepts of leasehold (including duty to take and keep in possession and holdover tenancy), joint ownership (including partition, pledge, bailment, lost property, license and trespass), acquisition (including intestate succession), duress (Ikrah), transfer by sale (including contract formation, meeting of the minds, declaration, duress and risk of loss), transfer by gift, rights and restrictions on transfers (including restraint on alienation, appurtenance, fixture, preemption, mortgage and water rights), will (including entitlement to shares, revocation, ademption, lapse, abatement and ambiguity), attacks on ownership (including concepts of theft, robbery, usurpation, nuisance, and defense of necessity), and causation (including remote consequences, intervening human cause, concurrent cause and uncertain cause). Many of these concepts were summarized in Islamic juristic texts, including the Hidayah by the Hanafi jurist al-Marghilani, the Minhaj al-Talibin by the Shafi`i jurist Yahya ibn Sharaf al-Nawawi, the Mukhtasar by the Maliki jurist Khalil ibn Ishaq al-Jundi, the Fatawa-e-Alamgiri by Hanafi jurists, and the Kasani.

While some see the Islamic concept of Istihsan as being equivalent to the concept of equity in English law, others see it as being equivalent to the "reasoned distinction of precedent" in American law, in which case Istihsan may be referred to as the "reasoned distinction of qiyas (reasoning by analogy)". John Makdisi writes:

Other parallels to common law concepts are found in classical Islamic law and jurisprudence, including advocacy, ratio decidendi (illah), arbitrary decision-making, legal opinion, discretion, public policy (Istislah and Maslaha), freedom of religion, equal protection, reasoning by analogy and distinction, and consensus and precedent.

Comparisons with civil law

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

The transfer of debt, which was not permissible under Roman law but is practiced in modern civil law, may also have origins in Islamic law. The concept of an agency was also an "institution unknown to Roman law", where it was not possible for an individual to "conclude a binding contract on behalf of another as his agent." The concept of an agency was introduced by Islamic jurists, and thus the civil law conception of agency may also have origins in Islamic law. The Siete Partidas of Alfonso X, which was regarded as a "monument of legal science" in the civil law tradition, was also influenced by the Islamic legal treatise Villiyet written in Islamic Spain.

Islamic law also introduced "two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith", which was a precursor to the concept of pacta sunt servanda in civil law and international law. Another influence of Islamic law on the civil law tradition was the presumption of innocence, which was introduced to Europe by Louis IX of France soon after he returned from Palestine during the Crusades. Prior to this, European legal procedure consisted of either trial by combat or trial by ordeal. In contrast, Islamic law was based on the presumption of innocence from its beginning, as declared by the Caliph Umar in the 7th century:

The concept of Ombudsmen was derived from the example of the second Muslim Caliph, Umar (634-644) and the concept of Qadi al-Qadat (developed in the Muslim world), which influenced the Swedish King, Charles XII. In 1713, fresh from self-exile in Turkey, Charles XII created the Office of Supreme Ombudsman, which soon became the Chancellor of Justice.

International law

The first treatise on international law (Siyar in Arabic) was the Introduction to the Law of Nations written at the end of the 8th century by Muhammad al-Shaybani (d. 804), an Islamic jurist of the Hanafi school, eight centuries before Hugo Grotius wrote the first European treatise on the subject. Al-Shaybani wrote a second more advanced treatise on the subject, and other jurists soon followed with a number of other multi-volume treatises written on international law during the Islamic Golden Age. They dealt with both public international law as well as private international law.

These early Islamic legal treatises covered the application of Islamic ethics, Islamic economic jurisprudence and Islamic military jurisprudence to international law, and were concerned with a number of modern international law topics, including the law of treaties; the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatant civilians; contracts across the lines of battle; the use of poisonous weapons; and devastation of enemy territory. The Umayyad and Abbasid Caliphs were also in continuous diplomatic negotiations with the Byzantine Empire on matters such as peace treaties, the exchange of prisoners of war, and payment of ransoms and tributes.

After Sultan al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:

The Islamic legal principles of international law were largely based on Qur'an and the Sunnah of Muhammad, who gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's successor and close companion, Abu Bakr, in the form of ten rules for the Muslim army:

Islamic private international law arose as a result of the vast Muslim conquests and maritime explorations, giving rise to various conflicts of laws. A will, for example, was "not enforced even if its provisions accorded with Islamic law if it violated the law of the testator." Islamic jurists also developed elaborate rules for private international law regarding issues such as contracts and property, family relations and child custody, legal procedure and jurisdiction, religious conversion, and the return of aliens to an enemy country from the Islamic world. Democratic religious pluralism also existed in classical Islamic law, as the religious laws and courts of other religions, including Christianity, Judaism and Hinduism, were usually accommodated within the Islamic legal framework, as seen in the early Caliphate, al-Andalus, Indian subcontinent, and the Ottoman Millet system.

Islamic law also introduced "two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith", which was a precursor to the concept of pacta sunt servanda in civil law and international law. Islamic law also "introduced it to international relations, making possible the systematic development of conventional law, which became a partial substitute for custom."

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

There is evidence that early Islamic international law influenced the development of Western international law, through various routes such as the Crusades, Norman conquest of the Emirate of Sicily, and Reconquista of al-Andalus. In particular, the Spanish jurist Francisco de Vitoria, and his successor Grotius, may have been influenced by Islamic international law through earlier Islamic-influenced writings such as the 1263 work Siete Partidas of Alfonso X, which was regarded as a "monument of legal science" in Europe at the time and was influenced by the Islamic legal treatise Villiyet written in Islamic Spain.

Legal education

Madrasahs were the first law schools, and it is likely that the "law schools known as Inns of Court in England" may have been derived from the Madrasahs which taught Islamic law and jurisprudence.

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

Human rights

In the field of human rights, early Islamic jurists introduced a number of advanced legal concepts before the 12th century which anticipated similar modern concepts in the field. These included the notions of the charitable trust and the trusteeship of property; the notion of brotherhood and social solidarity; the notions of human dignity and the dignity of labour; the notion of an ideal law; the condemnation of antisocial behavior; the presumption of innocence; the notion of "bidding unto good" (assistance to those in distress); and the notions of sharing, caring, universalism, fair industrial relations, fair contract, commercial integrity, freedom from usury, women's rights, privacy, abuse of rights, juristic personality, individual freedom, equality before the law, legal representation, non-retroactivity, supremacy of the law, judicial independence, judicial impartiality, limited sovereignity, tolerance, and democratic participation. Many of these concepts were adopted in medieval Europe through contacts with Islamic Spain and the Emirate of Sicily, and through the Crusades and the Latin translations of the 12th century.

The concept of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter." Islamic jurists also anticipated the concept of the rule of law, the equal subjection of all classes to the ordinary law of the land, where no person is above the law and where officials and private citizens are under a duty to obey the same law. A Qadi (Islamic judge) was also not allowed to discriminate on the grounds of religion, race, colour, kinship or prejudice. There were also a number of cases where Caliphs had to appear before judges as they prepared to take their verdict. There is evidence that John Locke's formulation of inalienable rights and conditional rulership, which were present in Islamic law centuries earlier, may have also been influenced by Islamic law, through his attendance of lectures given by Edward Pococke, a professor of Islamic studies.

Early Islamic law recognized two sets of human rights. In addition to the category of civil rights and political rights (covered in the Universal Declaration of Human Rights), Islamic law also recognized an additional category: social, economic and cultural rights. This latter category was not recognized in the Western legal tradition until the International Covenant on Economic, Social and Cultural Rights in 1966. The right of privacy, which was not recognized in Western legal traditions until modern times, was recogonized in Islamic law since the beginning of Islam. In terms of women's rights, women generally had more legal rights under Islamic law than they did under Western legal systems until the 19th and 20th centuries. For example, "French married women, unlike their Muslim sisters, suffered from restrictions on their legal capacity which were removed only in 1965.

The concepts of welfare and pension were introduced in early Islamic law as forms of Zakat (charity), one of the Five Pillars of Islam, since the time of the Abbasid caliph Al-Mansur in the 8th century. The taxes (including Zakat and Jizya) collected in the treasury of an Islamic government was used to provide income for the needy, including the poor, elderly, orphans, widows, and the disabled. According to the Islamic jurist Al-Ghazali (Algazel, 1058-1111), the government was also expected to store up food supplies in every region in case a disaster or famine occurs. The Caliphate was thus one of the earliest welfare states.

In the North Carolina Law Review journal, Professor John Makdisi of the University of North Carolina School of Law writes in "The Islamic Origins of the Common Law" article:

Count Leon Ostorog, a French jurist, wrote the following on classical Islamic law in 1927:

Democratic participation

In the early Islamic Caliphate, the head of state, the Caliph, had a position based on the notion of a successor to Muhammad's political authority, who, according to Sunnis, were ideally elected by the people or their representatives. After the Rashidun Caliphs, later Caliphates during the Islamic Golden Age had a lesser degree of democratic participation, but since "no one was superior to anyone else except on the basis of piety and virtue" in Islam, and following the example of Muhammad, later Islamic rulers often held public consultations with the people in their affairs.

The power of the Caliph (or later, the Sultan) was restricted by the scholarly class, the Ulema, a group regarded as the guardians of the law. Since the law came from the legal scholars, this prevented the Caliph from dictating legal results. Laws were decided based on the Ijma (consensus) of the Ummah (community), which was most often represented by the legal scholars. In order to qualify as a legal scholar, it was required that they obtain a doctorate known as the ijazat attadris wa 'l-ifttd ("license to teach and issue legal opinions") from a Madrasah. In many ways, classical Islamic law functioned like a constitutional law.

Freedom of speech

During the Islamic Golden Age, there was an early emphasis on freedom of speech in the Islamic Caliphate. This was first declared by the Caliph Umar in the 7th century. Later during the Abbasid period, freedom of speech was also declared by al-Hashimi, a cousin of caliph Al-Ma'mun (786–833), in the following letter to a religious opponent:

According to George Makdisi and Hugh Goddard, "the idea of academic freedom" in universities was "modelled on Islamic custom" as practiced in the medieval Madrasah system from the 9th century.

Peace and justice

As in other Abrahamic religions, peace is a basic concept of Islam. The Arabic term "Islam" itself (إسلام) is usually translated as "submission"; submission of desires to the will of God. It comes from the term aslama, which means "to surrender" or "resign oneself". The Arabic word salaam (سلام) ("peace") has the same root as the word Islam. One Islamic interpretation is that individual personal peace is attained by utterly submitting to Allah. The greeting "Salaam alaykum", favoured by Muslims, has the literal meaning "Peace be with you". Muhammad is reported to have said once, "Mankind are the dependents, or family of God, and the most beloved of them to God are those who are the most excellent to His dependents." "Not one of you believes until he loves for his brother what he loves for himself." Great Muslim scholars of prophetic tradition such as Ibn Hajar al-Asqalani and Sharafuddin al Nawawi have said that the words ‘his brother’ mean any person irrespective of faith.

Slavery / Freeing of slaves

The major juristic schools of Islam have traditionally accepted the institution of slavery. However, Islam has prescribed five ways to free slaves, has severely chastised those who enslave free persons and has thus regulated the slave trade. The source of slaves was restricted to war in preference to killing whole tribes en masse, as was the tradition at the time.

Sharia and non-Muslims

Sharia attributes different legal rights to different groups. Sharia distinguishes between men and women, as well as between Muslims, "people of the Book" such as Jews and Christians and other non-Muslims.

Qanun

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

Modern Islamic law

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

  • Secularists believe that the law of the state should be based on secular principles, not on Islamic legal theory.
  • Traditionalists believe that the law of the state should be based on the traditional legal schools. However, traditional legal views are considered unacceptable by some modern Muslims, especially in areas like women's rights or slavery.
  • Reformers believe that new Islamic legal theories can produce modernized Islamic law and lead to acceptable opinions in areas such as women's rights.

Background

According to Noah Feldman, a law professor at Harvard University, the legal scholars and jurists who once upheld the rule of law were replaced by a law governed by the state due to the codification of Sharia by the Ottoman Empire in the early 19th century:

Contemporary practice

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

Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and religious police assert social compliance. Laws derived from sharia are also applied in Afghanistan, Libya and Sudan. Some states in northern Nigeria have reintroduced Sharia courts. In practice the new Sharia courts in Nigeria have most often meant the re-introduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery and apostasy.

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

A bill proposed by lawmakers in the Indonesian province of Aceh would impose Sharia law on all non-Muslims, the armed forces and law enforcement officers, a local police official has announced. The news comes two months after the Deutsche Presse-Agentur warned of "Taliban-style Islamic police terrorizing Indonesia's Aceh".

The interpretation of Islamic jurisprudence varies in different modern nations. In the Anglosphere and in Islamic countries with a history of British rule, for example, Islamic finance has been relatively successful due to the common-law nature of Islamic jurisprudence being compatible with English common law. On the other hand, Islamic finance has been relatively unsuccessful in certain regimes such as Iran, Pakistan and Sudan which have diverged from the common-law nature of Islamic jurisprudence and instead interpret "a common-law variant as if it were a civil law system." For example, modern Iranian law is based on an "Islamic civil code" influenced by the Napoleonic code and German civil code. According to the Archbishop of Canterbury Rowan Williams, "In some of the ways it has been codified and practised across the world, it has been appalling and applied to women in places like Saudi Arabia, it is grim.

A prominent Islamic jurist explains the common-law nature of Islamic jurisprudence:

Another significant difference between the classical and modern systems of Islamic law is that classical Islamic law was "independent of any state mechanism", while modern Islamic law is "controlled by the state because the state often controls the legal scholars." According to Sameer S. Vohra, "This control mechanism results in a lack of the sort of pluralism that once made the Islamic legal system as innovative and fluid as its United States counterpart."

Contemporary issues

Democracy and human rights

Some democrats and several official institutions in democratic countries (as the European Court for Human Rights) argue that Sharia is incompatible with a democratic state. These incompatibilities have been clarified in several legal disputes. In 1998 the Turkish Constitutional Court banned and dissolved Turkey's Refah Party on the grounds that the "rules of sharia", which Refah sought to introduce, "were incompatible with the democratic regime," stating that "Democracy is the antithesis of sharia." On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy 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". It was further ruled that, according to Christian Moe:

On the other side, legal scholar L. Ali Khan concludes "that constitutional orders founded on the principles of Sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall". However, Christian Pippan argues, that this contradicts the political reality in most Islamic states. "While constitutional arrangements to ensure that political authority is exercised within the boundaries of Sharia vary greatly among those nations", most existing models of political Islam have so far grossly failed to accept any meaningful political competition of the kind that Khan himself has identified as essential for even a limited conception of democracy. Khan, writes Pippan, dismisses verdicts as from the European Court of Human Rights or the Turkish Constitutional Court "as an expression of purely national or regional preferences.

Several major, predominantly Muslim countries criticized the Universal Declaration of Human Rights (UDHR) for its perceived failure to take into account the cultural and religious context of non-Western countries. Iran claimed that the UDHR was a "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. Therefore the Organization of the Islamic Conference, a group representing all Muslim majority nations, adopted the Cairo Declaration on Human Rights in Islam, which diverges from the UDHR substantially, affirming Sharia as the sole source of human rights. This Declaration was severely criticized by the International Commission of Jurists for allegedly gravely threatening the inter-cultural consensus, introducing intolerable discrimination against non-Muslims and women, restricting fundamental rights and freedoms, and attacking the integrity and dignity of the human being.

Freedom of speech

Qadi ‘Iyad ibn Musa al-Yahsubi argues that Sharia does not allow freedom of speech on such matters as criticism of Muhammad and that such criticism is considered blasphemy against Muhammad. He writes:

In Egypt, public authorities annulled, without his consent, the marriage of Prof. Nasr Abu Zayd when he got in conflict with an orthodox Islamic cleric from the Al-Azhar University in Cairo. The cleric had condemned Abu Zayd's reading of the Qur'an as being against the orthodox interpretation and labeled him an apostate (seen as a non-believer and consequently not permitted to marry or stay married to a Muslim woman). Abu Zayd fled to the Netherlands, where he is now a professor at the University of Leiden.

Homosexuality

Homosexual activity is illicit under sharia, however the prescribed penalties differ from one school of jurisprudence to another. For example these countries may allow the death penalty for sodomy though not for other homosexual activities: Iran, Mauritania, Nigeria, Saudi Arabia, Somalia, Sudan, United Arab Emirates, and Yemen. Sharia does not recognize a human right of sexual self-determination. Human rights organizations focus on decriminalization, anti-discrimination laws, and incitement to hatred laws. Organizations are particularly concerned about the persecution of gays and lesbians in Iran and have helped some gay and lesbian Iranians gain asylum in Western countries.

Women

In terms of religious obligations, such as certain elements of prayer, payment of zakat, observance of the Ramadan fast and pilgrimage, women are treated no differently from men. There are, however, some exceptions made in the case of prayers and fasting. They are also forbidden to perform salat(prayer) during menstruation.

Islam has no clergy, but women do not traditionally become Imams or lead prayer. In practice, it is much more common for men to be scholars than women. Early Muslim scholars such as Abu-Hanifa and Al-Tabary held that there is nothing wrong with women holding a post as responsible as that of judge. Many interpretations of Islamic law hold that women may not have prominent jobs, and thus are forbidden from working in the government. This has been a mainstream view in many Muslim nations in the last century, despite the example of Muhammad's wife Aisha, who both took part in politics and was a major authority on hadith. Islam does not prohibit women from working, as it says "Treat your women well and be kind to them for they are your partners and committed helpers. Married women may seek employment although it is often thought in patriarchal societies that the woman's role as a wife and mother should have first priority.

Islam unequivocally allows both single and married women to own property in their own right. Islam grants to women the right to inherit property, in contrast with some cultures where women themselves are considered chattels that can be inherited. (See widow inheritance.) However, a woman's inheritance is different from a man's, both in quantity and attached obligations. For instance, a daughter's inheritance is half that of her brothers, Sharia law requires family members females or males to support each others as needed.

In practice Sharia law has often resulted in women living in fear or disadvantage. In instances of rape some interpretations of Sharia law require for an allegation to be validated, victims must have four witnesses to the crime or else the victims risk being charged with fornication or adultery making a rejected allegation a potential death sentence for the victim. In Yemen Sharia law required compensation to be paid to the husband in the case of a 10 year old child bride who requested a divorce after rape and abuse (the age of sexual consent under Sharia law is 9).

Islamic jurists have traditionally held that Muslim women may only enter into marriage with Muslim men, although some contemporary jurists question the basis of this restriction. On the other hand, the Qur'an explicitly allows Muslim men to marry any woman of the People of the Book, a term which includes Jews, Sabians, and Christians. However, fiqh law has held that it is mukrah (reprehensible) for a Muslim man to marry a non-Muslim woman in a non-Muslim country.

Sunni Islamic law allows husbands to divorce their wives by just saying talaq ("I divorce you") three times. In 2003 a Malaysian court ruled that, under Sharia law, a man may divorce his wife via text messaging as long as the message was clear and unequivocal. The divorced wife always keeps her dowry from when she was married, and is given child support until the age of weaning. The mother is usually granted custody of the child. The divorced wife also receives spousal support for three months after the divorce until it can be determined whether she is pregnant.

Topics of Islamic law

Shariah may be divided into five main branches:

  • 'ibadah (ritual worship)
  • mu'amalat (transactions and contracts)
  • adaab (morals and manners)
  • i'tiqadat (beliefs)
  • 'uqubat (punishments)
  • The acts of worship, or al-ibadat includes:
  • Human interaction, or al-mu'amalat includes:
    • Financial transactions
    • Endowments
    • Laws of inheritance
    • Marriage, divorce, and child care
    • Foods and drinks (including ritual slaughtering and hunting)
    • Penal punishments
    • Warfare and peace
    • Judicial matters (including witnesses and forms of evidence)

See mu`amalat laws according to five major schools of jurisprudence and The Majallah

Dietary

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

  • swine, blood, meat of dead animals and animals slaughtered in the name of someone other than Allah.
  • slaughtering an animal in any other way except in the prescribed manner of tazkiyah (cleansing) by taking Allah’s name which involves cutting the throat of the animal and draining the blood. Causing the animal needless pain, slaughtering with a blunt blade or physically ripping out the esophagus is strictly forbidden. Modern humane methods of slaughter like the captive bolt stunning are also prohibited.
  • intoxicants

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

Marriage and divorce

There are two types of marriage mentioned in the Qur'an: nikah and nikah mut'ah. The first is more common; it aims to be permanent, but can be terminated by the husband in the talaq process or by the wife seeking divorce. In nikah the couples inherit from each other. A legal contract is signed when entering the marriage. The husband must pay for the wife's expenses. In Sunni jurisprudence, the contract is void if there is a determined divorce date in the nikah, whereas, in Shia jurisprudence, nikah contracts with determined divorce dates are transformed in nikah mut'ah. For the contract to be valid there must be two witnesses under Sunni jurisprudence. There is no witness requirement for Shia contracts.

Nikah mut'ah is considered haraam (forbidden) by Sunni Muslims. It means "marriage for pleasure". Under Shia jurisprudence a nikah mut'ah is the second form of marriage recognized by the Shia. It is a fixed term marriage, which is a marriage with a preset duration, after which the marriage is automatically dissolved. There is controversy about the Islamic legality of this type of marriage, since Sunnis believe it was abrogated by Prophet Muhammad, while Shias believe it was forbidden by Umar and hence that ban may be ignored since Umar had no authority to do so. The Qur'an itself doesn't mention any cancellation of the institution. Nikah mut'ah sometimes has a preset time period to the marriage, traditionally the couple do not inherit from each other, the man usually is not responsible for the economic welfare of the women, and she usually may leave her home at her own discretion. Nikah mut'ah also does not count towards a maximum of wives (four according to the Qur'an). The woman still is given her mahr, and the woman must still observe the iddah, a period of four months at the end of the marriage where she is not permitted to remarry in the case she may have become pregnant before the divorce took place. This maintains the proper lineage of children.

Requirements for Islamic Marriages:

  • The man who is not currently a fornicator can only marry a woman who is not currently a fornicatress or a chaste woman from the people of the Book.
  • The Muslim woman can only marry a Muslim man.
  • The woman who is not currently a fornicatress can only marry a man who is not currently a fornicator.
  • The fornicator can only marry a fornicatress -- and vice versa.
  • The guardian may choose a suitable partner for a virgin girl, but the girl is free to contest and has the right to say 'no'.
  • The guardian cannot marry the divorced woman or the widow if she didn't ask to be married.
  • It is obligatory for a man to give bride wealth (gifts) to the woman he marries -- "Do not marry unless you give your wife something that is her right."
  • A woman who wishes to be divorced usually needs the consent of her husband. However, most schools allow her to obtain a divorce without her husband's consent if she can show the judge that her husband is impotent. If the husband consents she does not have to pay back the dower.
  • Men have the right of unilateral divorce. A divorce is effective when the man tells his wife that he is divorcing her. At this point the husband must pay the wife the "delayed" component of the dower.
  • A divorced woman of reproductive age must wait four months and ten days before marrying again to ensure that she is not pregnant. Her ex-husband should support her financially during this period.
  • If a man divorces his wife three times, he can no longer marry her again unless she marries another man, and if they got divorced (only in a way that this divorce is not intended for the woman to re-marry her first husband) the woman could re-marry her first husband.
  • These are guidelines; Islamic law on divorce is different depending on the school of thought.

Penalties

In accordance with the Qur'an and several hadith, theft is punished by imprisonment or amputation of hands or feet, depending on the number of times it was committed and depending on the item of theft. However, before the punishment is executed two eyewitnesses under oath must say that they saw the person stealing. If these witnesses cannot be produced then the punishment cannot be executed. Witnesses must be either two men, or, if only one man can be found, one man and two women. Several requirements are in place for the amputation of hands, so the actual instances of this are relatively few; they are:

  • The thief must be adult and sane.
  • There must have been criminal intent to take private (not common) property.
  • The theft must not have been the product of hunger, necessity, or duress.
  • The goods stolen must: be over a minimum value, not haraam, and not owned by the thief's family.
  • Goods must have been taken from custody (i.e. not in a public place).
  • There must be reliable witnesses (mentioned above).
  • The punishment is imposed even if the thief repents. [said by the Prophet]

All of these must be met under the scrutiny of judicial authority.

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

Similarly, under Sharia a woman who is accused of adultery cannot be punished unless there are four male eyewitnesses to prove she did commit adultery. The "four witness" standard comes from the Qur'an itself, a revelation Muhammad announced in response to accusations of adultery leveled at his wife, Aisha: "Why did they not produce four witnesses? Since they produce not witnesses, they verily are liars in the sight of Allah."

The word in the Quran used for "beat" is idreb. It is a conjugate of the word daraba which primarily means "to beat, strike, to hit". The Arabic word idreb is used in two primary ways. 1) to strike up a poem, and 2) to physically "beat", or "strike" someone.

Some consider "hit" to be a misinterpretation, and believe it should be translated as "admonish them, and leave them alone in the sleeping-places and separate from them." Certain modern translations of the Qur'an in the English language accept the commoner translation of "beat". Whatever idribu¯hunna is meant to convey in the Qur'an the verb is directed, not at a single husband, but to the community as a whole.

The word "idrib" is used 12 times in the Quran. Eight times it is used in the physical action of striking, and three times it is used in the context of speaking or applying a proverb. Clearly then, the most frequent use of the word is in physically striking. Here is a Quranic verse in which "idreb" is used:

Several hadith urge strongly against beating one's wife, such as: "How does anyone of you beat his wife as he beats the stallion camel and then embrace (sleep with) her? (Al-Bukhari, English Translation, vol. 8, Hadith 68, pp. 42-43), "I went to the Apostle of Allah (peace be upon him) and asked him: What do you say (command) about our wives? He replied: Give them food what you have for yourself, and clothe them by which you clothe yourself, and do not beat them, and do not revile them. (Sunan Abu-Dawud, Book 11, Marriage (Kitab Al-Nikah), Number 2139)". Others hadiths do indicate that husbands have a right to discipline their wives in a civilized manner to a certain extent:

According to Sheikh Yusuf al-Qaradawi, head of the European Council for Fatwa and Research:

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

In most interpretations of Sharia, conversion by Muslims to other religions, is strictly forbidden and is termed apostasy. Muslim theology equates apostasy to treason, and in most interpretations of sharia, the penalty for apostasy is death.

In many Muslim countries, the accusation of apostasy is even used against non-conventional interpretations of the Quran. The severe persecution of the famous expert in Arabic literature, Prof. Nasr Hamid Abu Zayd, is an example of this. In some countries, Sunni and Shia Muslims often accuse each other of apostasy. The current civil strife in Iraq is explained by many in terms of the extremely harsh religious opposition between Sunnis and Shias in Iraq.

Customs and behaviour

See also Islamic hygienical jurisprudence

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

  • Saying Bismillah (in the name of God) before eating and drinking.
  • Using the right hand for drinking and eating.
  • Saying As-Salamu Alaykum (peace be upon you) when meeting someone and answering with Wa alaykumus-Salam (and peace be upon you).
  • Saying Alhamdulillah (all gratitude is for only God) when sneezing and responding with Yarhamukallah (God have mercy on you).
  • Saying the Adhan (prayer call) in the right ear of a newborn and the Iqama in its left.
  • In the sphere of hygiene, it includes:
    • Clipping the moustache
    • Shaving the pubic hair
    • Removing underarm hair
    • Cutting nails
    • Circumcising the male offspring
    • Cleaning the nostrils, the mouth, and the teeth and
    • Cleaning the body after urination and defecation
  • Abstention from sexual relations during the menstrual cycle and the puerperal discharge, and ceremonial bath after the menstrual cycle, puerperal discharge, and Janabah (seminal/ovular discharge or sexual intercourse).
  • Burial rituals include funeral prayer of bathed and enshrouded body in coffin cloth and burying it in a grave.

Rituals

There are two festivals that are considered Sunnah.

Rituals associated with these festivals are:

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

Dress codes

The Qur'an also places a dress code upon its followers. The rule for men has been ordained before the women: Allah then says in the Qur'an, All those men in whose presence a woman is not obliged to practise the dress code are known as her mahrams. Men have a more relaxed dress code: the body must be covered from knee to waist. However under (strict interpretation of) Sharia Law, women are required to cover all of their bodies except hands and face. The rationale given for these rules is that men and women are not to be viewed as sexual objects. Men are required to keep their guard up and women to protect themselves. In theory, should either one fail, the other prevents the society from falling into fitna (temptation or discord).

There are many different opinions, however, as to whether the veil or headscarf is a real Quranic obligation. Reputable scholars such as Yusuf Al-Qaradawi claim it is, while others, such as Mohammed Arkoun, Soheib Bencheikh, Abdoldjavad Falaturi, Jamal al Banna claim it isn't. However, the first group appears dominant: "Jamal al Banna has been for a number of years one of the few mainstream Muslim scholars to argue that the Muslim headscarf, or hijab, is not an Islamic obligation." (, p. 75).

Turkey, a secular Muslim-majority country, had controversial laws against these dress codes in schools and work places. After the declaration of the Republic in 1923, as part of revolutions brought by Atatürk, a modern dress code was encouraged. The law changed early in 2008, with much debate, to allow a hijab while attending public school in Turkey as well as France, where the recently enacted rule caused huge public controversy.

It is a common concern in the west that Muslim women are oppressed and forced to wear the Hijab or headscarf by their male counterparts. Muslim males contend that the majority of women choose to wear the garment of their own free will. The main principle reason for the hijab is modesty, which is not wishing to receive unnecessary attention from people, such as admiration and flattery, envy, or, most importantly, sexual attraction from those other than her husband. Great care is taken to keep sexual thoughts, feelings and interactions to within the boundaries of the marital relationship.

One of the garments women wear is the hijāb (of which the headscarf is one component). The word hijab is derived from the Arabic word hajaba which means 'to hide from sight or view', 'to conceal'. Hijāb means to cover the head as well as the body.

Non-Muslims

Dhimmi in arabic means both "protected" or "guilty". Christians and Jews are subjected to dhimmittude because they are guilty of rejecting Muhammad as a prophet. The Qur'an contains the following verse. 9:29, Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued. Under Sharia law non-Muslims may be subjected to Sharia Laws however it codifies the treatment of dhimmis in relation to the Muslim state and in cases of over-lapping jurisdiction. The rules include privilege to practice their own religion, except for public demonstration of non-Muslim religious practices and the right to convert Muslims.

The core component of treatment is the jizya, or tax specifically upon non-Muslims. The jizya originates in the Qur'an which says The "Book" refers to the People of the Book, Jews and Christians,but the jizya was extended to all conquered non-Muslims. The jizya is less than the Zakah (money given to the poor and needy) which is payable to non-Muslims in need.

Notes

References

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See also

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