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Shari’a: Islamic Law
Etymology And Origins
The etymology of shari’a as a “path” or “way” comes from the Qur’anic verse 45:18: “Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not.
The Arabic word sharīʿa has origins in the concept of ‘religious law;’ the word is commonly used by Arabic-speaking peoples of the Middle East and designates a prophetic religion in its totality. Thus, sharīʿa Mūsā means religious law of Moses (Judaism); sharīʿa al-Masīḥ means religious law of Christianity; sharīʿa al-Madjūs means religious law of Zoroastrianism.
In contemporary Islamic literature, shari’a refers to divine law of Islam as revealed by prophet Muhammad, as well as in his function as model and exemplar of the law. Shari’a in the Islamic world is also known as Qānūn-e Islāmī.
History
In Islam, the origin of shari’a is the Qur’an, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 AD in Mecca). The formative period of fiqh (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.
Shari’a underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) for Sunni Muslims, and Imam Ali for Shia Muslims, during which time many questions were brought to the attention of Muhammad’s closest comrades for consultation. During the reign of Muawiya Abu Sufyan ibn Harb, ca. 662 AD, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.
The Umayyads (dynasty of caliphs based in Damascus that ruled from A.D. 661 to 750) initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi (judge ruling in accordance with Islamic religious law) extended only to Muslims, while non-Muslim populations retained their own legal institutions. Under the Umayyads, Islamic scholars were “sidelined” from administration of justice. Attempts to systematically uphold and develop Islamic law would wait for Abbasid (dynasty of caliphs who ruled in Baghdad from 750 to 1258) rule. Al-Mansur (the first Abbasid caliph) felt a “pressing obligation — to make good on the promise to govern according to the shari’a” and in the year 771 found “a respected member of the ulama” to serve as the head of the Egyptian judiciary, and to swear “to uphold the shari’a alone.” The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence. The Abbasid made the institution of qadi independent from the government, but this separation wasn’t always respected.
Since then, changes in Islamic society have played an ongoing role in developing shari’a, which branches out into fiqh and Qanun (laws promulgated by Muslim sovereigns, in particular the Ottoman Sultans, in contrast to shari’a, the body of law elaborated by Muslim jurists) respectively. Progress in theory was started by 8th and 9th century Islamic scholars. Al-Shafi‘i is credited with deriving the theory of valid norms for shari’a (uṣūl al-fiqh), arguing for a traditionalist, literal interpretation of Qur’an, Hadiths and methodology for law as revealed therein, to formulate shari’a.
A number of 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. These shaped different versions of shari’a in different schools of Islamic jurisprudence, called fiqhs.
Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Qur’an or the sunnah. Imam Shafi’i declared: “a tradition from the Prophet must be accepted as soon as it become known . . . If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favor of the tradition from the Prophet.” Thus, under the Abbasids the main features of shari’a were definitively established and shari’a was recognized as the law of behavior for Muslims.
In modern times, the Muslim community have divided points of view: secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines; traditionalists believe that the law of the state should be based on the traditional legal schools; reformers believe that new Islamic legal theories can produce modernized Islamic law and lead to acceptable opinions in areas such as women’s rights. This division persists until the present day.
There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.
Definitions And Disagreements
Shari’a, in its strictest definition, is a divine law, as expressed in the Qur’an and Muhammad’s example (often called the sunnah). As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the law. Shari’a is not formally a code, nor a well-defined set of rules. The shari’a is characterized as a discussion on the duties of Muslims based on both the opinion of the Muslim community and extensive literature.
From the 9th century onward, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (the ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community. Through succeeding centuries and empires, the balance between the ulema and the rulers shifted and reformed, but the balance of power was never decisively changed. Over the course of many centuries, imperial, political and technological change, including the Industrial Revolution and the French Revolution, ushered in an era of European world hegemony that gradually included the domination of many of the lands which had previously been ruled by Islamic empires.
At the end of the Second World War, the European powers found themselves too weakened to maintain their empires as before. The wide variety of forms of government, systems of law, attitudes toward modernity and interpretations of shari’a are a result of the ensuing drives for independence and modernity in the Muslim world.
Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of shari’a tend to ascribe many undesirable practices to shari’a and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite.
Sources Of Shari’a Law
There are two sources of shari’a (understood as the divine law): the Qur’an and the Sunnah. The Qur’an is viewed as the unalterable word of Allah. It is considered in Islam to be an infallible part of shari’a. The Qur’an covers a host of topics including Allah, personal laws for Muslim men and Muslim women, laws on community life, laws on expected interaction of Muslims with non-Muslims, apostates and ex-Muslims, laws on finance, morals, eschatology, and others.
The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah’s importance as a source of shari’a, is confirmed by several verses of the Qur’an (e.g. [Qur’an 33:21]). The Sunnah is primarily contained in the hadith or reports of Muhammad’s sayings, his actions, his tacit approval of actions and his demeanor. While there is only one Qur’an, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 AD). There are six acclaimed Sunni collections. The collections by al-Bukhari and Muslim, are regarded the most authentic, and contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them. For Shias, the Sunnah include life and sayings of The Twelve Imams.
Qur’an Versus Hadith
Muslims who reject the Hadith as a source of law, sometimes referred to as Qur’anists, suggest that only laws derived exclusively from the Qur’an are valid. They state that the hadiths in modern use are not explicitly mentioned in the Qur’an as a source of Islamic theology and practice, they were not recorded in written form until more than two centuries after the death of the prophet Muhammed. They also state that the authenticity of the hadiths remains a question.
The vast majority of Muslims, however, consider hadiths, which describe the words, conduct and example set by Muhammad during his life, as a source of law and religious authority second only to the Qur’an. Similarly, most Islamic scholars believe both Qur’an and sahih hadiths to be a valid source of shari’a, with Qur’anic verse 33.21, among others, as justification for this belief.
Ye have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the Praise of Allah. It is not fitting for a Believer, man or woman, when amatter has been decided by Allah and His Messenger to have any option about their decision: if any one disobeys Allah and His Messenger, he is indeed on a clearly wrong Path.
Disagreements On Qur’an
For vast majority of Muslims, shari’a has historically been, and continues to be derived from both the Qur’an and the Hadiths.
Shia Muslims, however, do not consider the chain of Sunni hadiths as reliable. Shia rely on their own chain of hadiths.
The Shia version of hadiths contain the words, conduct, and example set by Muhammad and Imams, which they consider as sinless, infallible and an essential source of shari’a for Shi’ite Muslims. However, in substance, the Shi’ite hadiths resemble the Sunni hadiths, with one difference – the Shia hadiths additionally include words and actions of its Imams (al-hadith al-walawi), the biological descendants of Muhammad, and these too, are considered an important source for shari’a by Shi’ites.
Authenticity And Writing Of Qur’an
Some scholars have challenged the authenticity of the Qur’an and whether it was written in the time of Muhammad. In contrast, is refuting evidence such as the inscriptions on the Dome of the Rock. Others have said that medieval era Islamic texts claiming the Qur’an was compiled after the death of the Prophet, were forged to preserve the status-quo. The final version of the Qur’an, believed by some, was compiled while the Prophet was still alive. However, most scholars accept that the Qur’an, as is used for Shari’a, was compiled into the final current form during the caliphate of Uthman (Uthman bin Affan was a companion of Prophet Muhammed and became the 3rd khalif after the death of the Prophet. He was later murdered by unknown assailants and this triggered a troubling set of developments in history).
Abrogation And Textual Inconsistencies
From the founding of Islam, the Muslim community has also debated the authenticity of compiled verses and the consistency within the Qur’an. The inconsistencies in deriving shari’a from the Qur’an, were recognized and formally complicated by verses 2.106 and 16.101 of the Qur’an, which are known as the “verses of abrogation.”
The principle of abrogation has been historically accepted and applied by Islamic jurists on both the Qur’an and the Sunnah. Shari’a is thus determined through a chronological study of the primary sources, where older revelations are considered invalid and overruled by later revelations. While an overwhelming majority of historical and modern Islamic scholars have accepted the principle of abrogation for the Qur’an and the Sunnah, some modern scholars disagree that the principle of abrogation necessarily applies to the Qur’an.
Islamic Jurisprudence (Fiqh)
Fiqh (school of Islamic jurisprudence) represents the process of deducing and applying shari’a principles, as well as the collective body of specific laws deduced from shari’a using the fiqh methodology. While 0Qur’an and Hadith sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh covers all aspects of law, including religious, civil, political, constitutional and procedural law. Fiqh deploys the following to create Islamic laws:
- Injunctions, revealed principles, and interpretations of the Qur’an (Used by all schools and sects of Islam);
- Interpretation of the Sunnah (Muhammad’s practices, opinions and traditions) and principles therein, after establishing the degree of reliability of hadith’s chain of reporters (Used by all schools and sects of Islam);
If the above two sources do not provide guidance for an issue, then different fiqhs deploy the following in a hierarchical way:
- Ijma, collective reasoning and consensus amongst authoritative Muslims of a particular generation, and its interpretation by Islamic scholars. This fiqh principle for shari’a is derived from Qur’anic verse 4:59. Typically, the recorded consensus of Sahabah (Muhammad’s companions) is considered authoritative and most trusted. If this is unavailable, then the recorded individual reasoning (Ijtihad) of Muhammad’s companions is sought. In Islam’s history, some Muslim scholars have argued that Ijtihad allows individual reasoning of both the earliest generations #to of Muslims and later generation Muslims, while others have argued that Ijtihad allows individual reasoning of only the earliest generations of Muslims. (Used by all schools of Islam, Jafari fiqh accepts only Ijtihad of Shia Imams).
- Qiyas, analogy is deployed if Ijma or historic collective reasoning on the issue is not available. Qiyas represents analogical deduction, the support for using it in fiqh is based on Qur’anic verse 2:59, and this methodology was started3 by Abu Hanifa. This principle is considered weak by Hanbali fiqh, and it usually avoids Qiyas for shari’a. (Used by all Sunni schools of Islam, but rejected by Shia Jafari).
- Istihsan, which is the principle of serving the interest of Islam and public as determined by Islamic jurists. This method is deployed if Ijtihad and Qiyas fail to provide guidance. It was started by Hanafi fiqh as a form of Ijtihad (individual reasoning). Maliki fiqh called it Masalih Al-Mursalah, or departure from strict adherence to the texts for public welfare. The Hanbali fiqh called it Istislah and rejected it, as did Shafi’i fiqh. (Used by Hanafi, Maliki, but rejected by Shafii, Hanbali and Shia Jafari fiqhs).
- Istihab and Urf, which mean continuity of pre-Islamic customs and customary law. This is considered as the weakest principle, accepted by just two fiqhs, and even in them recognized only when the custom does not violate or contradict any Qur’an, Hadiths or other fiqh source. (Used by Hanafi, Maliki, but rejected by Shafii, Hanbali and Shia Jafari fiqhs).
Schools Of Law
A Madhhab is a Muslim school of law that follows a fiqh (school of religious jurisprudence). In the first 150 years of Islam, there were many madhhab. Several of the Sahābah, or contemporary “companions” of Muhammad, are credited with founding their own. In the Sunni sect of Islam, the Islamic jurisprudence schools of Medina (Al-Hijaz, now in Saudi Arabia) created the Maliki madhhab, while those in Kufa (now in Iraq) created the Hanafi madhhab. Abu al-Shafi’i, who started as a student of Maliki school of Islamic law, and later was influenced by Hanafi school of Islamic law, disagreed with some of the discretion these schools gave to jurists, and founded the more conservative Shafi’i madhhab, which spread from jurisprudence schools in Baghdad (Iraq) and Cairo (Egypt). Ahmad ibn Hanbal, a student of al-Shafi’i, went further in his criticism of Maliki and Hanafi fiqhs, criticizing the abuse and corruption of shari’a from jurist discretion and consensus of later generation Muslims, and he founded the more strict, traditionalist Hanbali school of Islamic law. Other schools such as the Jariri were established later, which eventually died out.
Sunni sect of Islam has four major surviving schools of shari’a: Hanafi, Maliki, Shafi’i, Hanbali; one minor school is named Ẓāhirī. Shi’i sect of Islam has three: Ja’fari (major), Zaydi and Ismaili. There are other minority fiqhs as well, such as the Ibadi school of Khawarij sect, and those of Sufi and Ahmadi sects. All Sunni and Shia schools of shari’a rely first on the Qur’an and the sayings/practices of Muhammad in the Sunnah. Their differences lie in the procedure each uses to create Islam-compliant laws when those two sources do not provide guidance on a topic. The Salafi movement creates shari’a based on the Qur’an, Sunnah and the actions and sayings of the first three generations of Muslims.
Hanafi-based shari’a spread with the patronage and military expansions led by Turkic Sultans and Ottoman Empire in West Asia, Southeast Europe, Central Asia and South Asia. It is currently the largest madhhab of Sunni Muslims. Maliki-based shari’a is predominantly found in West Africa, North Africa and parts of Arabia. Shafii-based shari’a spread with patronage and military expansions led by maritime Sultans, and is mostly found in coastal regions of East Africa, Arabia, South Asia, Southeast Asia and islands in the Indian ocean. The Hanbali-based shari’a prevails in the smallest Sunni madhhab, predominantly found in the Arabian peninsula. The Shia Jafari-based shari’a is mostly found in Persian region and parts of West Asia and South Asia.
Categories Of Law
Along with interpretation, each fiqh classifies its interpretation of shari’a into one of the following five categories: fard (obligatory), mustahabb (recommended), mubah (neutral), makruh (discouraged), and haraam (forbidden). A Muslim is expected to adhere to that tenet of shari’a accordingly.
Actions in the fard category are those mandatory on all Muslims. They include the five daily prayers, fasting, articles of faith, obligatory giving of zakat (charity, tax) to zakat collectors, and the hajj pilgrimage to Mecca (at least once in a lifetime, if possible).
The mustahabb category includes proper behavior in matters such as marriage, funeral rites and family life. As such, it covers many of the same areas as civil law in the West. Shari’a courts attempt to reconcile parties to disputes in this area using the recommended behavior as their guide. A person whose behavior is not mustahabb can be ruled against by the judge.
Mubah category of behavior is neither discouraged nor recommended, neither forbidden nor required; it is permissible.
Makruh behavior, while it is not sinful of itself, is considered undesirable among Muslims. It may also make a Muslim liable to criminal penalties under certain circumstances.
Haraam behavior is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Qur’an. Certain Muslim dietary and clothing restrictions also fall into this category.
The recommended, neutral and discouraged categories are drawn largely from accounts of the life of Muhammad. To say a behavior is sunnah is to say it is recommended as an example of the life and sayings of Muhammad. These categories form the basis for proper behavior in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.
Prisoners Of War
The areas of Islamic law include:
- Hygiene and purification laws, including the 9manner of cleansing, either wudhu or ghusl.
- Economic laws, including Zakāt, the annual almsgiving; Waqf, the religious endowment; the prohibition on interest or Riba; as well as inheritance laws.
- Dietary laws including Dhabihah, or ritual slaughter.
- Theological obligations, including the Hajj or pilgrimage, with its rituals such as Tawaf, Sa’yee and the Stoning of the Devil; salat, formal worship; Salat al-Janazah, the funeral prayer; and celebrating Eid al-Adha.
- Marital jurisprudence, including Nikah, the marriage contract; and divorce, known as Khula if initiated by a woman.
- Criminal jurisprudence, including Hudud, fixed punishments; Tazir, discretionary punishment; Qisas or retaliation; Diyya or blood money; and apostasy.
- Military jurisprudence, including Jihad, offensive and defensive; Hudna or truce; and rules regarding prisoners of war.
Other Classifications
Shari’ah law has been grouped in different ways, such as: Family relations, Crime and punishment, Inheritance and disposal of property, The economic system, External and other relations.
“Reliance of the Traveller,” an English translation of a fourteenth-century AD reference on the Shafi’i school of fiqh written by Ahmad ibn Naqib al-Misri, organizes shari’a law into the following topics:
Purification, prayer, funeral prayer, taxes, fasting, pilgrimage, trade, inheritance, marriage, divorce and justice.
In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.
Application By Country
Most Muslim-majority countries incorporate shari’a at some level in their legal framework, with many calling it the highest law or the source of law of the land in their constitution. Most use shari’a for personal law (marriage, divorce, domestic violence, child support, family law, inheritance and such matters). Elements of shari’a are present, to varying extents, in the criminal justice system of many Muslim-majority countries. Saudi Arabia, Yemen, Brunei, Qatar, Pakistan, United Arab Emirates, Iraq, Iran, Afghanistan, Sudan and Mauritania apply the code predominantly or entirely while it applies in some parts of Indonesia.
Most Muslim-majority countries with shari’a-prescribed hudud punishments in their legal code, do not prescribe it routinely and use other punishments instead. The harshest shari’a penalties such as stoning, beheading and the death penalty are enforced with varying levels of consistency.
Since 1970s, most Muslim-majority countries have faced vociferous demands from their religious groups and political parties for immediate adoption of shari’a as the sole, or at least primary legal framework. Some moderates and liberal scholars within these Muslim countries have argued for limited expansion of shari’a.
With the growing muslim immigrant communities in Europe, there have been reports in some media of “no-go zones” being established where shari’a law reigns supreme. However, there is no evidence of the existence of “no-go zones,” and these allegations are sourced from anti-immigrant groups falsely equating low-income neighborhoods predominantly inhabited by immigrants as “no-go zones.”
Enforcement
Islamic Religious Police And Hisbah
Shari’a is enforced in Islamic nations in a number of ways, including mutaween and hisbah.
The mutaween are the government-authorized or government-recognized religious police (or clerical police) of Saudi Arabia. Elsewhere, enforcement of Islamic values in accordance with shari’a is the responsibility of Polisi Perda Syariah Islam in Aceh province of Indonesia, Committee for the
Propagation of Virtue and the Prevention of Vice (Gaza Strip) in parts of Palestine, and Basiji Force in Iran.
Hisbah (or hisba) is an historic Islamic doctrine which means “accountability.” Hisbah doctrine holds that it is a religious obligation of every Muslim that he or she report to the ruler (Sultan, government authorities) any wrong behavior of a neighbor or relative that violates shari’a or insults Islam. The doctrine states that it is the divinely sanctioned duty of the ruler to intervene when such charges are made, and coercively “command right and forbid wrong” in order to keep everything in order according to shari’a. Some Salafist (a fundamentalist approach to Islam by Sunni Muslims) suggest that enforcement of shari’a under the Hisbah doctrine is the sacred duty of all Muslims, not just rulers. The doctrine of Hisbah in Islam has traditionally allowed any Muslim to accuse another Muslim, ex-Muslim or non-Muslim for beliefs or behavior that may harm Islamic society. This principle has been used in countries such as Egypt, Pakistan and others to bring blasphemy charges against apostates. For example, in Egypt, shari’a was enforced on the Muslim scholar Nasr Abu Zayd, through the doctrine of Hasbah, when he committed apostasy. Similarly, in Nigeria, after twelve northern Muslim-majority states such as Kano adopted shari’a-based penal code between 1999 and 2000, hisbah became the allowed method of shari’a enforcement, where all Muslim citizens could police compliance of moral order based on shari’a. In Aceh province of Indonesia, Islamic vigilante activists have invoked Hasbah doctrine to enforce shari’a on fellow Muslims as well as demanding non-Muslims to respect shari’a. Hisbah has been used in many Muslim majority countries, from Morocco to Egypt and in West Asia to enforce shari’a restrictions on blasphemy and criticism of Islam over internet and social media.
Legal And Court Proceedings
Syariah Court in Malacca, Malaysia
Shari’a judicial proceedings have significant differences from other legal traditions, including those in both common law and civil law. Shari’a courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges’ verdicts do not set binding precedents, and unlike civil law, shari’a is left to the interpretation in each case and has no formally codified universal statutes.
The rules of evidence in shari’a courts also maintain a distinctive custom of prioritizing oral testimony. Witnesses, in a shari’a court system, must be faithful, that is Muslim. Male Muslim witnesses are deemed more reliable than female Muslim witnesses, and non-Muslim witnesses considered unreliable and receive no priority in a shari’a court. In civil cases, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness. In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of shari’a, such as those found in Hanbali madhhab.
Criminal Cases
A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible, in shari’a courts, for hudud (punishments which under Islamic law are mandated and fixed by Allah) crimes, that is the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft. 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. Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.
Muslim jurists have debated whether and when coerced confession and coerced witnesses are acceptable. The majority opinion of jurists in the Hanafi madhhab, for example, ruled that torture to get evidence is acceptable and such evidence is valid, but a 17th-century text by Hanafi jurist Muhammad Shaykhzade argued that coerced confession should be invalid; Shaykhzade acknowledged that beating to get confession has been authorized in fatwas by many Islamic jurists.
Civil Cases
Qur’an recommends written contracts in the case of debt-related transactions, and oral contracts for commercial and other civil contracts. 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 shari’a court as a form of debt. Written contracts are paramount, in shari’a courts, in the matters of dispute that are debt-related, which includes marriage contracts. Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.
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 triumph over written contracts. Shari’a system has held that written commercial contracts may be forged. 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 nations and communities.
In lieu of written evidence, oaths are accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.
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.” Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Qur’an should the defendant commit perjury; instead oaths are a solemn procedure performed as a final part of the evidence process.
Sentencing
Shari’a courts treat women and men as unequal, with Muslim woman’s life and blood-money compensation sentence (Diyya) as half as that of a Muslim man’s life. Shari’a also treats Muslims and non-Muslims as unequal in the sentencing process. Human Rights Watch and United States’ Religious Freedom Report note that in shari’a courts of Saudi Arabia, “The calculation of accidental death or injury compensation is discriminatory. In the event a court renders a judgment in favor of a plaintiff who is a Jewish or Christian male, the plaintiff is only entitled to receive 50 percent of the compensation a Muslim male would receive; all other non-Muslims [Buddhists, Hindus, Jains, Atheists] are only entitled to receive one-sixteenth of the amount a male Muslim would receive.”
Saudi Arabia follows Hanbali shari’a, whose historic jurisprudence texts considered a Christian or Jew life as half the worth of a Muslim. Jurists of other schools of law in Islam have ruled differently. For example, Shafi’i shari’a considers a Christian or Jew life as a third the worth of a Muslim, and Maliki’s shari’a considers it worth half. The legal schools of Hanafi, Maliki and Shafi’i Sunni Islam as well as those of Twelver Shia Islam have considered the life of polytheists and atheists as one-fifteenth the value of a Muslim during sentencing.
Support And Opposition
Anti-democracy, pro-Shari’a public demonstration in 2014 in Maldives.
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 support for making shari’a the official law of the land is very high in many Muslim-majority countries: Afghanistan (99 percent), Iraq (91 percent), Niger (86 percent), Malaysia (86 percent), Pakistan (84 percent), Morocco (83 percent), Bangladesh (82 percent), Egypt (74 percent), Indonesia (72 percent), Jordan (71 percent), Uganda (66 percent), Ethiopia (65 percent), Mali (63 percent), Ghana (58 percent), and Tunisia (56 percent). In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less than 50 percent; Russia (42 percent), Kyrgyzstan (35 percent), Tajikistan (27 percent), Kosovo (20 percent), Albania (12 percent), Turkey (12 percent), Azerbaijan (8 percent).
In Muslim-majority countries and among Muslims who say shari’a should be the law of the land, a percentage between 74 percent (Egypt) and 19 percent (Kazakhstan) want shari’a law to apply to non-Muslims as well.
A 2008 YouGov poll in the United Kingdom found 40 percent of Muslim students interviewed wanted shari’a in British law.
Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and shari’a not just within their own borders; their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power. Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey’s secular government. These movements can be considered neo-Shari’sm.
Extremism
Fundamentalists, wishing to return to basic Islamic religious values and law, have in some instances imposed harsh shari’a punishments for crimes, curtailed civil rights and violated human rights. Extremists have used the Qur’an and their own particular version of shari’a to justify acts of war and terror against Muslim as well as non-Muslim individuals and governments, using alternate, conflicting interpretations of shari’a and their notions of jihad.
The shari’a basis of arguments of those advocating terrorism, however, remain controversial. Some scholars state that Islamic law prohibits the killing of civilian non-combatants; in contrast, others interpret Islamic law differently, concluding that all means are legitimate to reach their aims, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians, in order to universalize Islam. Islam, in these interpretations, “does not make target differences between militaries and civilians but between Muslims and unbelievers. Therefore it is legitimated (sic) to spill civilians’ blood.” Other scholars of Islam, interpret shari’a differently, stating, “attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment. It’s not courageous to attack innocent children, women and civilians. It is courageous to protect freedom; it is courageous to defend one and not to attack.”
Opposition
In the post-9/11 non-Muslim Western world, Shari’a has been called a source of “hysteria,” “more controversial than ever,” the one aspect of Islam that inspires “particular dread.” On the internet, “dozens of self-styled `counter-jihadis`” emerged to campaign against Shari’a law, describing it in strict interpretations resembling those of Salafi Muslims. Several years after 9/11 fear of Shari’a law and of “the ideology of extremism” among Muslims, reportedly spread to mainstream conservative Republicans in the United States. As of 2014 seven states in the US have “banned Shari’a law,” or passed some kind of ballot measure that “prohibits the states courts from considering foreign, international or religious law.”
Former House Speaker Newt Gingrich, won ovations calling for a federal ban on Shari’a law. In 2015, the governor of Louisiana ( Bobby Jindal) warned of the danger of purported “no-go zones” in European cities allegedly operating under Shari’a Law and where local laws are not applicable. The issue of “liberty versus Shari’a” was called a “momentous civilizational debate” in at least one conservative editorial page. In 2008 in Britain, the future Prime Minister (David Cameron) declared his opposition to “any expansion of Shari’a law in the UK.” In Germany, in 2014, the Interior Minister (Thomas de Maizière) told a newspaper (Bild), “Shari’a law is not tolerated on German soil.”
Criticism: Islamic ethics, Islam and democracy, Shura and Ijma
At least one Imam (Ali Khan, et al) has stated that “constitutional orders founded on the principles of shari’a are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall.” Other scholars say shari’a is not compatible with democracy, particularly where the country’s constitution demands separation of religion and the democratic state.
Courts in non-Muslim majority nations have generally ruled against the implementation of shari’a, both in jurisprudence and within a community context, based on shari’a’s religious background. In Muslim nations, shari’a has wide support with some exceptions. For example, in 1998 the Constitutional Court of Turkey banned and dissolved Turkey’s Refah Party on the grounds that “Democracy is the antithesis of Shari’a,” the latter of which Refah sought to introduce.
On appeal by Refah the European Court of Human Rights determined that “shari’a is incompatible with the fundamental principles of democracy.” Refah’s shari’a-based notion of a “plurality of legal systems, grounded on religion” was ruled to contravene the European Convention for the Protection of Humanly?lL 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.”
Human Rights
Several major, 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. 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. 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.
Most 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.”
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.”
The UDHR states that shari’a 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). In a nutshell, it states that shari’a framework and human rights are incompatible. For its part, the other side states that shari’a is misunderstood from a failure to distinguish shari’a from siyasah (politics).
Freedom Of Speech
Blasphemy in Islam is any form of cursing, questioning or annoying Allah, Muhammad or anything considered sacred in Islam. The shari’a of various Islamic schools of jurisprudence specify different punishment for blasphemy against Islam, by Muslims and non-Muslims, ranging from imprisonment, fines, flogging, amputation, hanging, or beheading. In some cases, shari’a allows non-Muslims to escape death by converting and becoming a devout follower of Islam.
Blasphemy, as interpreted under shari’a, is controversial. Muslim nations have petitioned the United Nations to limit “freedom of speech” because “unrestricted and disrespectful opinion against Islam creates hatred.” Other nations, in contrast, consider blasphemy laws as violation of “freedom of speech,” stating that freedom of expression is essential to empowering both Muslims and non-Muslims, and point to the abuse of blasphemy laws, where hundreds, often members of religious minorities, are being lynched, killed and incarcerated in Muslim nations, on flimsy accusations of insulting Islam.
Freedom Of Thought, Conscience And Religion
According to the United Nations’ Universal Declaration of Human Rights, every human has the right to freedom of thought, conscience and religion; this right includes freedom to change their religion or belief. Shari’a has been criticized for not recognizing this human right. According to Islamic law, the applicable rules for religious conversion under shari’a are as follows:
If a person converts to Islam, or is born and raised as a Muslim, then he or she will have full rights of citizenship in an Islamic state.
Leaving Islam is a sin and a religious crime. Once any man or woman is officially classified as Muslim, because of birth or religious conversion, he or she will be subject to the death penalty if he or she becomes an apostate, that is, abandons his or her faith in Islam in order to become an atheist, agnostic or to convert to another religion. Before executing the death penalty, shari’a demands that the individual be offered one chance to return to Islam.
If a person has never been a Muslim, and is not a kafir (infidel, unbeliever), he or she can live in an Islamic state by accepting to be a dhimmi (a non-Muslim living under the protection of an Islamic state). They are exempt from the duties of Islam like military service and zakat but instead pay an alternative tax to the Islamic state called jizyah, or under a special permission called aman (safety). As a dhimmi or under aman, he or she will suffer certain limitations of rights as a subject of an Islamic state, and will not enjoy complete legal equality with Muslims.
If a person has never been a Muslim, and is a kafir (infidel, unbeliever), shari’a demands that he or she should be offered the choice to convert to Islam and become a Muslim; if he or she rejects the offer, he or she may become a dhimmi. Failure to pay the tax may lead the non-muslim to either be enslaved, killed or ransomed if captured.
According to shari’a theory, conversion of disbelievers and non-Muslims to Islam is encouraged as a religious duty for all Muslims, and leaving Islam (apostasy), expressing contempt for Islam (blasphemy), and religious conversion of Muslims is prohibited. Not all Islamic scholars agree with this interpretation of shari’a theory. In practice, as of 2011, 20 Islamic nations had laws declaring apostasy from Islam as illegal and a criminal offense. Such laws are incompatible with the UDHR’s requirement of freedom of thought, conscience and religion. In another 2013 report based on international survey of religious attitudes, more than 50 percent of Muslim population in six out of 49 Islamic countries supported death penalty for any Muslim who leaves Islam (apostasy). However it is also shown that the majority of Muslims in the 43 nations surveyed did not agree with this interpretation of shari’a. (NOTE: When visiting both, Singapore and Malaysia in 1989, there were large billboard signs everywhere at the Malay border [along the road, in the customs office, etc.], warning foreigners against proselytizing Muslims, or residents against denying Islam; both were under penalty of imprisonment or death).
Some scholars claim shari’a allows religious freedom because a Shari’a verse teaches, “there is no compulsion in religion.” Other scholars claim shari’a recognizes only one proper religion, considers apostasy as sin punishable_— with death, and members of other religions as kafir (infidel); or hold that Shari’a demands that all apostates and kafir must be put to death, enslaved or be ransomed. Yet others suggest that Shari’a has become a product of human interpretation and inevitably leads to disagreements about the “precise contents of the Shari’a.” In the end, then, what is being applied is not shari’a, but what a particular group of clerics and government decide is shari’a. It is these differing interpretations of Shari’a that explain why many Islamic countries have laws that restrict and criminalize apostasy, proselytism and their citizens’ freedom of conscience and religion.
LGBT Rights
Homosexual intercourse is illegal under shari’a law, though the prescribed penalties differ from one ——school of jurisprudence to another. For example, some Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran, Saudi Arabia, and In other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh, same-sex sexual acts are illegal, and LGBT people regularly face violence and discrimination.
Women: Domestic Violence
Some scholars claim Shari’a law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife. Other scholars claim wife beating, for nashizah (a disobedient wife), is not consistent with modern perspectives of the Qur’an.
One of the verses of the Qur’an relating to permissibility of domestic violence is Surah 4:34. In deference to Surah 4:34, many nations with Shari’a law have refused to consider or prosecute cases of domestic abuse. Shari’a has been criticized for ignoring women’s rights in domestic abuse cases. Musawah, ADDAW, KAFA and other organizations have proposed ways to modify Shari’a-inspired laws to improve women’s rights in Islamic nations, including women’s rights in domestic abuse cases.
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 UNIADF report concludes that Shari’a law provisions are discriminatory against women from a human rights perspective. In legal proceedings under Shari’a law, a woman’s testimony is worth half of a man’s before a court.
Except for Iran, Lebanon and Bahrain which allow child marriages, the civil code in Islamic majority countries do not allow child marriage of girls. However, with Shari’a personal status laws, Shari’a courts in all these nations have the power to override the civil code. The religious courts permit girls less than 18 years old to marry. As of 2011, child marriages are common in a few Middle Eastern countries, accounting for one in six of all marriages in Egypt and one in three marriages in Yemen. UNIADF and other studies state that the top five nations in the world with highest observed child marriage rates — Niger (75 percent), Chad (72 percent), Mali (71 percent), Bangladesh (64 percent), Guinea (63 percent) — are Islamic-majority countries where the personal laws for Muslims are shari’a-based.
Rape is considered a crime in all countries, but Shari’a courts in Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia in some cases allow a rapist to escape punishment by marrying his victim, while in other cases the victim who complains is often prosecuted with the crime of Zina (adultery).
Women’s Right To Property And Consent
Shari’a grants women the right to inherit property from other family members, and these rights are detailed in the Qur’an. A woman’s inheritance is unequal and less than a man’s, and dependent on many factors. [Qur’an 4:12] For instance, a daughter’s inheritance is usually half that of her brother’s. [Qur’an 4:11]
Until the 20th century, Islamic law granted Muslim women certain legal rights, such as the right to own property received as Mahr (brideprice) at her marriage, that Western legal systems did not grant to women. However, Islamic law does not grant non-Muslim women the same legal rights as the few it did grant Muslim women. Shari’a 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. Shari’a 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. Under Islamic law, Muslim men could have sexual relations with female captives and slaves without her consent.
Slave women under shari’a did not have a right to own property, to move freely, or to consent. Shari’a, in Islam’s history, provided a religious foundation for enslaving non-Muslim women (and men), but nevertheless encouraged the release of slaves. However, freedom required that the non-Muslim slave first convert to Islam. A non-Muslim slave woman who bore children to her Muslim master became legally free upon her master’s death, and her children were presumed to be Muslims like their father, in Africa and elsewhere.
Starting with the 20th century, Western legal systems evolved to expand women’s rights, but women’s rights under Islamic law have remained tied to the Qur’an, hadiths and their faithful interpretation as shari’a by Islamic jurists.
Parallels With Western Legal Systems
Elements of Islamic law have influenced western legal systems. As example, the influence of Islam on the development of an international law of the sea can be discerned alongside that of the Roman influence.
Islamic law also influenced the legal scholastic system of the West. The study of legal text and degrees have parallels between Islamic studies of shari’a and the Western system of legal studies; for example, the status of faqih (meaning “master of law”), mufti (meaning “professor of legal opinions”) and mudarris (meaning “teacher”) were later translated into Latin as magister, professor and doctor, respectively.
There are differences between Islamic and Western legal systems. For example, shari’a 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. Interest prohibitions imposed secondary costs by discouraging record keeping and delaying the introduction of modern accounting. Such factors have played a significant role in retarding economic development in the Middle East.
Saved By . . .
Islam, Judaism, and Christianity have a number of things in common. For instance, all started in the Middle East; they all have a Savior; they even start with Adam and Eve; believe in Moses.
What I’d like to talk about, though, is the law versus Grace. Islam and Judaism both share the concept of Law; Muslims live by Shari’a, Islamic Law; whereas Jews live by mosaic law or the Law of Moses. But, what about Christianity? Christianity lives by Grace. I’m not a theologian, so it’s best that I should have a theologian explain Grace.
If you will provide me your name, email address, and country you live in, I will send you an AudioBook by Sinclair Ferguson, a Scottish theologian known in Reformed Christian circles for his teaching, writing, and editorial work. He has been the Chancellor’s Professor of Systematic Theology at Reformed Theological Seminary since 2017. He was a close associate R. C. Sproul (deceased). The AudioBook is called “By Grace Alone.” It’s yours FREE, paid for by the Institute for the Study of Islam, parent company of Discernimg-Islam.org.
Shari’a: Islamic Law
311 – 001
Last Update: 03/2021
