Sharia
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Sharia,[a] Sharī'ah, Shari'a, Shariah or Syariah (Arabic: شريعة, lit. 'path (to water)') is a body of religious law that forms a part of the Islamic tradition[1][2][3] based on scriptures of Islam, particularly the Qur'an and hadith.[1] In Islamic terminology sharīʿah refers to immutable, intangible divine law; contrary to fiqh, which refers to its interpretations by Islamic scholars.[4][5][6]
Sharia, or fiqh as traditionally known, has always been used alongside customary law from the very beginning in Islamic history;[7][8] has been elaborated and developed over the centuries by legal opinions issued by qualified jurists -reflecting the tendencies of different schools- and integrated and with various economic, penal and administrative laws issued by Muslim rulers; and implemented for centuries by judges in the courts[4][6] until recent times, when secularism was widely adopted in Islamic societies.
Traditional theory of Islamic jurisprudence recognizes four sources for Ahkam al-sharia: the Qur'an, sunnah (or authentic ahadith), ijma (lit. consensus) (may be understood as ijma al-ummah (Arabic: إجماع الأمة) – a whole Islamic community consensus, or ijma al-aimmah (Arabic: إجماع الائـمـة) – a consensus by religious authorities[9]), and analogical reasoning.[note 1][12] Four legal schools of Sunni Islam — Hanafi, Maliki, Shafiʽi and Hanbali — developed methodologies for deriving rulings from scriptural sources using a process known as ijtihad (lit. mental effort).[4][5] Traditional jurisprudence distinguishes two principal branches of law, rituals and social dealings; subsections family law, relationships (commercial, political / administrative) and criminal law, in a wide range of topics.[4][6] Its rulings are concerned with ethical standards as much as legal norms,[13][14] assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited.[4][5][6]
Over time with the necessities brought by sociological changes, on the basis of mentioned interpretative studies legal schools have emerged, reflecting the preferences of particular societies and governments, as well as Islamic scholars or imams on theoretical and practical applications of laws and regulations. Although sharia is presented as a form of governance[15] in addition to its other aspects (especially by the contemporary Islamist understanding), some researchers see the early history of Islam, which has been modelled and exalted by most Muslims,[note 2] not as a period when sharia was dominant, but a kind of "secular Arabic expansion".[17][18]
Approaches to sharia in the 21st century vary widely, and the role and mutability of sharia[19] in a changing world has become an increasingly debated topic in Islam.[5] Beyond sectarian differences, fundamentalists advocate the complete and uncompromising implementation of "exact/pure sharia" without modifications,[2][20] while modernists argue that it can/should be brought into line with human rights and other contemporary issues such as democracy, minority rights, freedom of thought, women's rights and banking by new jurisprudences.[21][22][23] In Muslim majority countries, traditional laws have been widely used with[5][24] or changed by European models. Judicial procedures and legal education have been brought in line with European practice likewise.[5] While the constitutions of most Muslim-majority states contain references to sharia, its rules are largely retained only in family law[5] and penalties in some. The Islamic revival of the late 20th century brought calls by Islamic movements for full implementation of sharia, including hudud corporal punishments, such as stoning[5][25] through various propaganda methods ranging from civilian activities to terrorism.
Etymology and usage
[edit]Contemporary usage
[edit]The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality.[26] For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith.[26] Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims.[26] For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to Sharia.[5] Sharia is the first of Four Doors and the lowest level on the path to God in Sufism and in branches of Islam that are influenced by Sufism, such as Ismailism and Alawites. It is necessary to reach from Sharia to Tariqa, from there to Ma'rifa and finally to haqiqa. In each of these gates, there are 10 levels that the dervish must pass through.[27]
Jan Michiel Otto summarizes the evolutionary stages of understanding by distinguishing four meanings conveyed by the term sharia in discourses.[28]
- Divine, abstract sharia: In this sense, sharia is a rather abstract concept which leaves ample room for various concrete interpretations by humans.
- Classical sharia: This is the body of Islamic rules, principles and cases compiled by religious scholars during the first two centuries after Muhammad, including Ijtihād
- Historical sharia(s): This includes the entire body of all principles, rules, cases and interpretations developed and transmitted throughout a history of more than one thousand years across the entire Muslim world, since the closing of the gate of free interpretation up to the present.
- Contemporary sharia(s): This contains the full spectrum of principles, rules, cases and interpretations developed and applied at present. Migration, modernisation and new technologies of information and communication have decreased the dominance of the legal schools of classical sharia.
A related term al-qānūn al-islāmī (القانون الإسلامي, Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.[29]
Etymology
[edit]The primary meanings of the Arabic word šarīʿah, derived from the root š-r-ʕ.[26] The lexicographical studies records two major areas of the word can appear without religious connotation. In texts evoking a pastoral or nomadic environment, šarīʿah and its derivatives refers to watering animals at a permanent water-hole or to the seashore. One another area of use relates to notions of stretched or lengthy.[30] The word is cognate with the Hebrew saraʿ שָׂרַע and is likely to be the origin of the meaning "way" or "path".[30] Some scholars describe it as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah ["The Way to Go"]),[31] or "path to the water hole"[32][33] and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.[33]
Use in religious texts
[edit]In the Quran, šarīʿah and its cognate širʿah occur once each, with the meaning "way" or "path".[26] [34][35] The word šarīʿah was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word Torah in the 10th-century Arabic translation of the Torah by Saʿadya Gaon.[26] A similar use of the term can be found in Christian writers.[26] The Arabic expression Sharīʿat Allāh (شريعة الله 'God's Law') is a common translation for תורת אלוהים ('God's Law' in Hebrew) and νόμος τοῦ θεοῦ ('God's Law' in Greek in the New Testament [Rom. 7: 22]).[36] In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh, which refers to a scholar's interpretation thereof.[37]
In older English-language law-related works in the late 19th/early 20th centuries, the word used for Sharia was sheri.[38] It, along with the French variant chéri, was used during the time of the Ottoman Empire, and is from the Turkish şer'(i).[39]
Historical origins
[edit]According to the traditionalist (Atharī) Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development"[40] and the emergence of Islamic jurisprudence (fiqh) also goes back to the lifetime of Muhammad.[5][6] In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith.[5][6] These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifa, Malik ibn Anas, al-Shafi'i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools (madhāhib) of Sunni jurisprudence.[6]
Modern historians have presented alternative theories of the formation of fiqh[5][6] while they have accepted the general outlines of the traditionalist account at first.[41] In the late 19th century, an influential revisionist hypothesis was advanced by Ignác Goldziher and elaborated by Joseph Schacht in the mid-20th century.[6] Schacht and other scholars[42] argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs, the initial Muslim efforts to formulate legal norms[note 3] regarded the Quran[note 4] and Muhammad's hadiths as just one source of law,[note 5] with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources.[47] According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications.[note 6] After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad's companions.[6] In his view, the real architect of Islamic jurisprudence was al-Shafi'i, who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work al-risala,[6][41] but who was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths.
Some articles that may be considered precursors of sharia law and rituals can be found in the pre-Islamic Arabic Religions; Hajj, salāt and zakāt could be seen in pre-Islamic Safaitic-Arabic inscriptions,[49] and continuity can be observed in many details, especially in todays hajj and umrah rituals.[50] The veiling order, which distinguishes between slaves[51] and free women in Islam, also coincides with similar distinctions seen in pre-Islamic civilizations.[52][53]
Qisas was a practice used as a resolution tool in inter-tribal conflicts in pre-Islamic Arab society. The basis of this resolution was that a member from the tribe to which the murderer belonged was handed over to the victim's family for execution, equivalent to the social status of the murdered person.[54] The "condition of social equivalence" meant the execution of a member of the murderer's tribe who was equivalent to the murdered person. For example, only a slave could be killed for a slave, and a woman for a woman. In other cases, compensatory payment (Diya) could be paid to the family of the murdered. On top of this pre-Islamic understanding added a debate about whether a Muslim can be executed for a non-Muslim during the Islamic period. The main verse for implementation in Islam is Al Baqara 178: "Believers! Retaliation is ordained for you regarding the people who were killed. Free versus free, slave versus slave, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well."
Modern historians generally adopt intermediate positions regarding origins,[41] suggesting that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam.[55][5][56] It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified others, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the community.[57] Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics.[57][58] At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles.[5][58] As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder.[5][58] In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.[5][59]
Traditional jurisprudence (fiqh)
[edit]Fiqh is traditionally divided into the fields of uṣūl al-fiqh (lit. the roots of fiqh), which studies the theoretical principles of jurisprudence, and furūʿ al-fiqh (lit. the branches of fiqh), which is devoted to elaboration of rulings on the basis of these principles.[6][11]
Principles of jurisprudence (uṣūl al-fiqh)
[edit]Classical Islamic jurisprudence refers how to elaborate and interpret religious sources that are considered reliable within the framework of "procedural principles" within its context such as linguistic and "rhetorical tools" to derive judgments for new situations by taking into account certain purposes and mesalih. Textual phrases usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date.[6]
The sources of judgment in classical fiqh are roughly divided into two: Manqūlāt (Quran and hadith) and Aqliyyāt (ijma, qiyas, ijtihad and others).[60] Some of them (Aqliyyāt) are considered to be the product of scholastic theology and Aristotelian logic.[61] It was an important area of debate among traditional fiqh scholars how much space should be given to rational methods in creating provisions such as extracting provisions from religious texts, as well as expanding, restricting, abolishing or postponing these provisions according to new situations, considering the purpose and benefit, together with new sociologies, in the face of changing conditions.[62]
In this context, in the Classical period, the ulema were divided into groups (among other divisions such as political divisions) regarding the place of "'Aql" vis-à-vis naql:[63] those who rely on narration (Atharists, Ahl al-Hadith), those who rely on reason (Ahl al-Kalām, Mu'tazila and Ahl al-Ra'y) and those who tried to find a middle way between the two attitudes such as Abu al-Hasan al-Ash'ari in theology (syncretists).[64] In the classical age of Islam, there were violent conflicts between rationalists (aqliyyun; al-muʿtazila, kalamiyya) and traditionalist (naqliyyun, literalists, Ahl al-Hadith) groups and sects regarding the Quran and hadith or the place of reason in understanding the Quran and hadith,[65] as can be seen in the Mihna example.[66][67] Although the rationalists initially seemed to gain the upper hand in this conflict, with the rise of literalism, the Mutazila sank into history and literalism continued to live by gaining supporters.[65]
In this context, the formulation of the Sunni view can be summarized as follows; Human reason is a gift from God which should be exercised to its fullest capacity.[68] However, use of reason alone is insufficient to distinguish right from wrong, and rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad.[10][68] In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas).[55] It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools.[6] This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question.[6]
The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notion of sunnah to include traditions of the imams.[10][69]
Sources for Ahkam al-Sharia
[edit]Islamic scholar Rashid Rida (1865–1935 CE) lists the four basic sources of Islamic law, agreed upon by all Sunni Muslims: "the [well-known] sources of legislation in Islam are four: the Qur'an, the Sunnah, the consensus of the ummah and ijtihad undertaken by competent jurists"[70] While traditional understanding strongly denies that Quran may have changed (Al Hejr:9), the authenticity of hadiths could only be questioned through the chain of narration, though some western researchers suggests that primary sources may have also been evolved.[note 7]
- Quran: in Islam, the Quran is considered to be the most sacred source of law.[78] Classical jurists held its "textual integrity" to be beyond doubt on account of it having been handed down by many people in each generation, which is known as "recurrence" or "concurrent transmission" (tawātur).[55][78] [79] According to classical mainstream jurists, the verses of the Quran that were "revealed later" in Islamic language may have restricted or abolished the earlier verses.[80] Therefore, deciding which verses of the Quran will be used, in addition to other knowledge and skills, may be the job of lawyers who know these issues in detail. Whether the Sunnah could limit the Quran remained a matter of debate.
Only several verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance, though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means.[5][78] Islamic literature calls the laws that can be associated with the Quran in Sharia "hudud" (meaning the limits set by Allah). How the verse Al-Ma'idah 33, which describes the crime of hirabah, should be understood is a matter of debate even today.[81] The verse talks about the punishment of criminals by killing, hanging, having their hands and feet cut off on opposite sides, and being exiled from the earth, in response to an -abstract- crime such as "fighting against Allah and His Messenger". Today, commentators - in the face of the development of the understanding of law and the increasing reactions to corporal punishment[82]- claim that the verse determines the punishment of "concrete sequential criminal acts" - such as massacre, robbery and rape - in addition to rebellion against the legitimate government, and that the punishment to be given depends on the existence of these preconditions.
- Sunnah / Hadith:Although hadiths have largely replaced the sunnah in orthodoxy legislation today, according to some research, the opposite was true in the early Islamic society. Sunnah originally meant a tradition that did not contain the definition of good and bad.[73][83][84][74][75] Later, "good traditions" began to be referred to as sunnah and the concept of "Muhammad's sunnah" was established.[73] Muhammad's sunnah gave way to the "hadiths of Muhammad" which were transmitted orally,[85] then recorded in corpuses and systematized and purified within following centuries.
The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic.[5][78] Early Islamic scholars developed personal criteria for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains.[78] These studies narrowed down the vast corpus of prophetic traditions to several thousand "sound (seeming to collectors)" hadiths, which were collected in several canonical compilations.[78] The hadiths which enjoyed concurrent transmission were deemed mutawatir; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge.[78][55] The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages.[78] Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings.[5]
In Imam Malik's usage, hadith did not consist only of the words claimed to belong to Muhammad as is the case with Shiite Muslims. While hadith does not appear to be an important source of decision for early fiqh scholars such as Abu Hanifa, for later scholars, hadith is perceived as the words of Muhammad merely and is considered as a strong and separate source of decision alongside the Quran. Today, Quranists do not consider hadiths as a valid source of religious rulings.[86][87][88]
- Ijma: it is the consensus that could in principle elevate a ruling based on probable evidence to absolute certainty.[89][5] This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error.[89] This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community.[89][5][90] However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development.[89][5] A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion.[5] The cases for which there was a consensus account form less than 1 percent of the body of classical jurisprudence.[89]
- Qiyas: it is the Analogical reasoning that is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule.[55] In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the "cause" (ʿilla) shared by these situations, which in this case is identified to be intoxication.[55] Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate.[91] Majority of Sunni Muslims view Qiyas as a central Pillar of Ijtihad.[92] On the other hand; Zahirites, Ahmad ibn Hanbal, Al-Bukhari, early Hanbalites, etc rejected Qiyas amongst the Sunnis.[93][94][95] Twelver Shia jurisprudence also does not recognize the use of qiyas, but relies on reason (ʿ'aql) in its place.[10][11]
Aims of Sharia and public interest
[edit]Maqāṣid (aims or purposes) of Sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times.[96][97][98] Abū Hāmid al-Ghazālī, Izz al-Din ibn 'Abd al-Salam and Abu Ishaq al-Shatibi used maslaha and madasıd as equivalent terms.[99][100] Synonyms for the term maqāṣid aš-šarīʿa are the expressions maqāṣid aš-šāriʿ ("intentions of the legislature"), maqāṣid at-tašrīʿ ("intentions of the legislature "), ruḥ aš -šarīʿa ("Spirit of Sharia"), ḥikmat at-tašrīʿ ("Wisdom of Legislation") and falsafat at-tašrīʿ ("Philosophy of Legislation").[101]
They were first clearly articulated by al-Ghazali (d. 1111), who argued that Maqāṣid and maslaha was God's general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property.[102]
Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law.[96][98] Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning.[96][103] Others regarded them as an "independent" source of law, whose general principles could override specific inferences based on the letter of scripture.[96][104] Taking maqasid and maslaha as an "independent" source of sharia - rather than an auxiliary one - will pave the way for the re-critique and reorganization of ahkam in the context of maqasid and maslaha,[105] thus (including hudud), which is often criticized in terms of today's values and seen as problematic,[106] in terms of the purposes of sharia and social benefits will be replaced by new ones. Abdallah bin Bayyah goes further with an approach that prioritizes purpose and benefit among the sources of sharia and declares it to be the heart of "usul-al fiqh".[105]
While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence.[96][55][97] These scholars expanded the inventory of maqasid to include such aims of Sharia as reform and women's rights (Rashid Rida); justice and freedom (Mohammed al-Ghazali); and human rights and dignity (Yusuf al-Qaradawi).[96]
Ijtihad
[edit]Ijtihad lit. 'physical' or 'mental effort'[108] refers to independent reasoning by an expert in Islamic law,[109] or exertion of a jurist's mentality in finding a solution to a legal question[108] in contrast with taqlid (conformity to precedent ijtihad).[109][110] According to theory, ijtihad requires expertise in the Arabic language, theology, religious texts, and principles of jurisprudence (usul al-fiqh),[109] and is not employed where authentic and trusted texts (Qur'an and hadith) are considered unambiguous with regard to the question, or where there is an existing scholarly consensus (ijma).[108] An Islamic scholar who perform ijtihad is called "mujtahid".[108][111] In the general understanding, beyond the limitation of ijtihad to those situations that do not have a clear ruling in the Quran and hadiths, scholars who have the ability to give general judgments are also ranked with definitions such as "mujtahid mutlaq", "mujtahid in sect", "mujtahid in issue".[112] Rulings based on ijtihad are not decisions that require obligatory implementation for other Muslims.
Throughout the first five Islamic centuries, ijtihad continued to practise amongst Sunni Muslims. The controversy surrounding ijtihad started with the beginning of the twelfth century.[113] By the 14th century, Islamic Fiqh prompted leading Sunni jurists to state that the main legal questions had been addressed and then ijtihad was gradually restricted.[108] In the modern era, this gave rise to a perception amongst Orientalist scholars and sections of the Muslim public that the so-called "gate of ijtihad" was closed at the start of the classical era.[108][114]
Starting from the 18th century, Islamic reformers began calling for abandonment of taqlid and emphasis on ijtihad, which they saw as a return to Islamic origins.[108] The advocacy of ijtihad has been particularly associated with Islamic Modernism and Salafiyya movements. Among contemporary Muslims in the West there have emerged new visions of ijtihad which emphasize substantive moral values over traditional juridical undertandings.[108]
Shia jurists did not use the term ijtihad until the 12th century. With the exception of Zaydis, the early Imami Shia were unanimous in censuring Ijtihad in the field of law (Ahkam) until the Shiite embrace of various doctrines of Mu'tazila and classical Sunnite Fiqh.[108][115] After the victory of the Usulis who based law on principles (usul) over the Akhbaris ("traditionalists") who emphasized on reports or traditions (khabar) by the 19th century, Ijtihad would become a mainstream Shia practice.[116]
The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity).[55]
Considering that, as a rule, there was a hierarchy and power ranking among the sources of Sharia;[117][118] for example, a subcategory or an auxiliary source will not be able to eliminate a provision clearly stated in the main source or prohibit a practice that was not prohibited though it was known and practiced during the prophetic period. If we look at an example such as the abolition of the validity of Mut'a marriage, is touched upon in the Quran 4:24,[119] and not prohibited (Sunnis translate the words used in the relevant verse with terms used to describe the ordinary marriage event) according to Sunnis is banned by Muhammad towards the end of his lifetime,[120] and according to Shiites, by Omar, "according to his own opinion" and reliying on power. The Shiite sect did not accept the jurisprudence of Omar, whose political and religious authority they rejected from the beginning.
Ahkam al-shar'iyya (Decision types; labels)
[edit]Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong.[13][14] Sharia rulings fall into one of five categories known as "the five decisions" (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām).[5][11]
It is a sin or a crime to perform a forbidden action or not to perform a mandatory action.[5] Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court.[5][121] Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgment from God.[5][121] Jurists disagree on whether the term ḥalāl covers the first three or the first four categories.[5] The legal and moral verdict depends on whether the action is committed out of necessity (ḍarūra) and on the underlying intention (niyya), as expressed in the legal maxim "acts are [evaluated according] to intention."[5]
Hanafi fiqh does not consider both terms as synonymous and makes a distinction between "fard" and "wajib"; In Hanafi fiqh, two conditions are required to impose the fard rule. 1. Nass, (only verses of the Qur'an can be accepted as evidence here, not hadiths) 2.The expression of the text referring to the subject must be clear and precise enough not to allow other interpretations. The term wajib is used for situations that do not meet the second of these conditions.[125] However, this understanding may not be sufficient to explain every situation. For example, Hanafis accept 5 daily prayers as fard. However, some religious groups such as Quranists and Shiites, who do not doubt that the Quran existing today is a religious source, infer from the same verses that it is clearly ordered to pray 2 or 3 times,[126][127][128][129] not 5 times. In addition, in religious literature, wajib is widely used for all kinds of religious requirements, without expressing any fiqh definition.
As seen above and in many other examples, classifications and labels have a relative character shaped by the understanding of the people and groups who make them. For example, believing in the existence and miracles of Awliya is presented as a "condition" for orthodox Islam by many prominent Sunni creed writers such as Al-Tahawi and Nasafi[130][131] and is accepted in traditional Sunnis and Shi'ism. However, this understanding, along with expressions of respect and visits to the graves of saints, are seen as unacceptable heresy by puritanical and revivalist Islamic movements such as Salafism, Wahhabism and Islamic Modernism.[132]
About six verses address the way a woman should dress when in public;[133] Muslim scholars have differed as how to understand these verses, with some stating that a Hijab is a command (fard) to be fulfilled[134][note 8] and others say simply not.[139][note 9]
The statement in the Qur'an that determines the status of slaves and concubines in the understanding of Sharia is as follows; ma malakat aymanuhum or milk al-yamin[141] meaning "those whom your right hands possess". It is often stated today that Sharia provides many rights to slaves and aims to eradicate slavery over time. However, the widespread use of slavery in the Islamic world continued until the last century, and jurists had no serious objections to the castration of slaves[note 10] and the unrestricted sexual use of female slaves, with a few exceptions[note 11] in traditional islamic jurisprudence.
A special religious decision, which is "specific to" a person, group, institution, event, situation, belief and practice in different areas of life, and usually includes the approval/disapproval of a judgment, is called fatwa. Tazir penalties, which are outside the Qisas and Hudud laws, have not been codified, and their discretion and implementation are under the initiative and authority of the judge or political authority.[5][146] Mustafa Öztürk points out some another developments in the Islamic creed, leading changes in ahkam such as determining the conditions of takfir according to theologians; First Muslims believed that God lived in the sky as Ahmad Ibn Hanbal says: "Whoever says that Allah is everywhere is a heretic, an infidel, should be invited to repent, but if he does not, be killed." This understanding changes later and gives way to the understanding that "God cannot be assigned a place and He is everywhere."[147]
Judgment that concerns individuals is personal and, for example, in an Islamic Qisas or compensation decisions, jurist must take into account "personal labels" such as the gender, freedom, religious and social status such as mu'min, kafir, musta'min, dhimmi, apostate, etc. Similar distinctions also apply to witnessing practices, which have a fundamental value in the establishment of judicial provisions, such as the identification of the criminals. According to the traditional understanding, four male fair witnesses were required for the accusation of adultery in court,[148] and two male witnesses were required for any other verdict. In addition, the accusers would be punished with slander for accusations that do not meet the specified conditions as a note. For example, the testimony of two women can be equal to the testimony of a man, and a non-Muslim or a sinner cannot serve as an eyewitness against a Muslim. Men's share of the inheritance will be twice that of women.[149] Islamic preachers constantly emphasize the importance of adalah, and in trials, the judge is not expected to observe equality among those on trial, but is expected to act fairly or balanced. Traditional fiqh states that legal and religious responsibility begins with rushd.
Branches and details (furūʿ al-fiqh)
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The domain of furūʿ al-fiqh (lit. branches of fiqh) is traditionally divided into ʿibādāt (rituals or acts of worship) and muʿāmalāt (social relations).[6][56] Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries.[150] Each of these terms figuratively stood for a variety of subjects.[150] For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics.[150] Juristic works were arranged as a sequence of such smaller topics, each called a "book" (kitab).[6][150] The special significance of ritual was marked by always placing its discussion at the start of the work.[6][150]
Some historians distinguish a field of Islamic criminal law, which combines several traditional categories.[5][146][11] Several crimes with scripturally prescribed punishments are known as hudud.[5] Jurists developed various restrictions which in many cases made them virtually impossible to apply.[5] Other crimes involving intentional bodily harm are judged according to a version of lex talionis that prescribes a punishment analogous to the crime (qisas), but the victims or their heirs may accept a monetary compensation (diya) or pardon the perpetrator instead; only diya is imposed for non-intentional harm.[5][146] Other criminal cases belong to the category of taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge's discretion.[5][146] In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to Sharia.[6][146]
The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary).[6] Mukhtasars were short specialized treatises or general overviews that could be used in a classroom or consulted by judges.[6][5][151] A mabsut, which usually provided a commentary on a mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions.[6][151] The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance.[6] At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions.[151] Other juristic genres include the qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar.[5]
Classical jurisprudence has been described as "one of the major intellectual achievements of Islam"[152] and its importance in Islam has been compared to that of theology in Christianity.[note 12]
Schools of law
[edit]
The main Sunni schools of law (madhhabs) are the Hanafi, Maliki, Shafi'i and Hanbali madhhabs.[56] They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab.[155] These four schools recognize each other's validity and they have interacted in legal debate over the centuries.[155][56] Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world.[155][56] For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia.[155][56][5] The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs.[6] The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought.[6][56][155] The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools.[6][5] The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.[56]
The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system.[155] Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system.[155] State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question).[155] Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws.[155] Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence.[155] The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.[155] Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.[155]
Pre-modern Islamic legal system
[edit]Jurists
[edit]Sharia was traditionally interpreted by muftis. During the first few centuries of Islam, muftis were private legal specialists who normally also held other jobs. They issued fatwas (legal opinions), generally free of charge, in response to questions from laypersons or requests for consultation coming from judges, which would be stated in general terms. Fatwas were regularly upheld in courts, and when they were not, it was usually because the fatwa was contradicted by a more authoritative legal opinion.[156] The stature of jurists was determined by their scholarly reputation.[157][158] The majority of classical legal works, written by author-jurists, were based in large part on fatwas of distinguished muftis.[157] These fatwas functioned as a form of legal precedent, unlike court verdicts, which were valid only for the given case.[159] Although independent muftis never disappeared, from the 12th century onward Muslim rulers began to appoint salaried muftis to answer questions from the public.[160] Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, while Shia jurists in Iran progressively asserted an autonomous authority starting from the early modern era.[161]
Islamic law was initially taught in study circles that gathered in mosques and private homes. The teacher, assisted by advanced students, provided commentary on concise treatises of law and examined the students' understanding of the text. This tradition continued to be practiced in madrasas, which spread during the 10th and 11th centuries.[162][163] Madrasas were institutions of higher learning devoted principally to study of law, but also offering other subjects such as theology, medicine, and mathematics. The madrasa complex usually consisted of a mosque, boarding house, and a library. It was maintained by a waqf (charitable endowment), which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. At the end of a course, the professor granted a license (ijaza) certifying a student's competence in its subject matter.[163] Students specializing in law would complete a curriculum consisting of preparatory studies, the doctrines of a particular madhhab, and training in legal disputation, and finally write a dissertation, which earned them a license to teach and issue fatwas.[160][162]
Courts
[edit]
A judge (qadi) was in charge of the qadi's court (mahkama), also called the Sharia court. Qadis were trained in Islamic law, though not necessarily to a level required to issue fatwas.[5][164] Court personnel also included a number of assistants performing various roles.[165] Judges were theoretically independent in their decisions, though they were appointed by the ruler and often experienced pressure from members of the ruling elite where their interests were at play.[160] The role of qadis was to evaluate the evidence, establish the facts of the case, and issue a verdict based on the applicable rulings of Islamic jurisprudence.[5] The qadi was supposed to solicit a fatwa from a mufti if it was unclear how the law should be applied to the case.[5][166] Since Islamic legal theory does not recognize the distinction between private and public law, court procedures were identical for civil and criminal cases, and required a private plaintiff to produce evidence against the defendant. The main type of evidence was oral witness testimony. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases.[5] Most historians believe that because of these stringent procedural norms, qadi's courts at an early date lost their jurisdiction over criminal cases, which were instead handled in other types of courts.[167]
If an accusation did not result in a verdict in a qadi's court, the plaintiff could often pursue it in another type of court called the mazalim court, administered by the ruler's council.[5] The rationale for mazalim (lit. wrongs, grievances) courts was to address the wrongs that Sharia courts were unable to address, including complaints against government officials. Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler.[5][160] Mazalim verdicts were supposed to conform to the spirit of Sharia, but they were not bound by the letter of the law or the procedural restrictions of qadi's courts.[5][166]
The police (shurta), which took initiative in preventing and investigating crime, operated its own courts.[160] Like the mazalim courts, police courts were not bound by the rules of Sharia and had the powers to inflict discretionary punishments.[167] Another office for maintaining public order was the muhtasib (market inspector), who was charged with preventing fraud in economic transactions and infractions against public morality.[160] The muhtasib took an active role in pursuing these types of offenses and meted out punishments based on local custom.[167]
Socio-political context
[edit]The social fabric of pre-modern Islamic societies was largely defined by close-knit communities organized around kinship groups and local neighborhoods. Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community. Court litigation was seen as a last resort for cases where informal mediation had failed. This attitude was reflected in the legal maxim "amicable settlement is the best verdict" (al-sulh sayyid al-ahkam). In court disputes, qadis were generally less concerned with legal theory than with achieving an outcome that enabled the disputants to resume their previous social relationships. This could be accomplished by avoiding a total loss for the losing side or simply giving them a chance to articulate their position in public and obtain a measure of psychological vindication.[168][169] Islamic law required judges to be familiar with local customs, and they exercised a number of other public functions in the community, including mediation and arbitration, supervision of public works, auditing waqf finances, and looking after the interests of orphans.[164][167]
Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers. The law derived its authority not from political control, but rather from the collective doctrinal positions of the legal schools (madhhabs) in their capacity as interpreters of the scriptures. The ulema (religious scholars) were involved in management of communal affairs and acted as representatives of the Muslim population vis-à-vis the ruling dynasties, who before the modern era had limited capacity for direct governance.[170] Military elites relied on the ulema for religious legitimation, with financial support for religious institutions being one of the principal means through which these elites established their legitimacy.[171][170] In turn, the ulema depended on the support of the ruling elites for the continuing operation of religious institutions. Although the relationship between secular rulers and religious scholars underwent a number of shifts and transformations in different times and places, this mutual dependence characterized Islamic history until the start of the modern era.[172][170] Additionally, since Sharia contained few provisions in several areas of public law, Muslim rulers were able to legislate various collections of economic, criminal and administrative laws outside the jurisdiction of Islamic jurists, the most famous of which is the qanun promulgated by Ottoman sultans beginning from the 15th century.[173] The Mughal emperor Aurangzeb (r. 1658–1707) issued a hybrid body of law known as Fatawa-e-Alamgiri, based on Hanafi fatwas as well as decisions of Islamic courts, and made it applicable to all religious communities on the Indian subcontinent. This early attempt to turn Islamic law into semi-codified state legislation sparked rebellions against Mughal rule.[174]
Women, non-Muslims, slaves
[edit]In both the rules of civil disputes and application of penal law, classical Sharia distinguishes between men and women, between Muslims and non-Muslims, and between free persons and slaves.[5]
Traditional Islamic law assumes a patriarchal society with a man at the head of the household.[149] Different legal schools formulated a variety of legal norms which could be manipulated to the advantage of men or women,[175] but women were generally at a disadvantage with respect to the rules of inheritance and witness testimony, where in some cases a woman's witness testimony is effectively treated as half of that of a man.[149] Various financial obligations imposed on the husband acted as a deterrent against unilateral divorce and commonly gave the wife financial leverage in divorce proceedings.[175] Women were active in Sharia courts as both plaintiffs and defendants in a wide variety of cases, though some opted to be represented by a male relative.[176][5]
Sharia was intended to regulate affairs of the Muslim community.[5] Non-Muslims residing under Islamic rule had the legal status of dhimmi, which entailed a number of protections, restrictions, freedoms and legal inequalities, including payment of the jizya tax.[177] Dhimmi communities had legal autonomy to adjudicate their internal affairs. Cases involving litigants from two different religious groups fell under jurisdiction of Sharia courts,[5] where (unlike in secular courts)[178] testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases[179] or at all.[180] This legal framework was implemented with varying degree of rigor. In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation.[5] The Mughal emperor Aurangzeb imposed Islamic law on all his subjects, including provisions traditionally applicable only to Muslims, while some of his predecessors and successors are said to have abolished jizya.[174][181] According to Ottoman records, non-Muslim women took their cases to a Sharia court when they expected a more favorable outcome on marital, divorce and property questions than in Christian and Jewish courts.[182] Over time, non Muslims in the Ottoman Empire could be more or less likely to use Islamic courts. For example, in 1729 at the Islamic court in Galata only two percent of cases involved non-Muslims whereas in 1789 non-Muslims were a part of thirty percent of cases.[183] Ottoman court records also reflect the use of Islamic courts by formerly non-Muslim women.[184] As it was illegal for non-Muslims to own Muslims and for non-Muslim men to marry Muslim women in the Ottoman empire, conversion to Islam would have been an option for non-Muslim women to free themselves of a spouse or master they did not want to subject to.[184] However, this would likely lead to them being shunned by their former community.[184]
Classical fiqh acknowledges and regulates slavery as a legitimate institution.[149] It granted slaves certain rights and protections, improving their status relative to Greek and Roman law, and restricted the scenarios under which people could be enslaved.[185][186] However, slaves could not inherit or enter into a contract, and were subject to their master's will in a number of ways.[185][186] The labor and property of slaves were owned by the master, who was also entitled to sexual submission of his unmarried slaves.[186][187]
Formal legal disabilities for some groups coexisted with a legal culture that viewed Sharia as a reflection of universal principles of justice, which involved protection of the weak against injustices committed by the strong. This conception was reinforced by the historical practice of Sharia courts, where peasants "almost always" won cases against oppressive landowners, and non-Muslims often prevailed in disputes against Muslims, including such powerful figures as the governor of their province.[188][189] In family matters the Sharia court was seen as a place where the rights of women could be asserted against their husband's transgressions.[5]
Modern legal reforms
[edit]Under colonial rule
[edit]Starting from the 17th century, European powers began to extend political influence over lands ruled by Muslim dynasties, and by the end of the 19th century, much of the Muslim world came under colonial domination. The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations.[190] Islamic commercial laws were also replaced by European (mostly French) laws in Muslim states which retained formal independence, because these states increasingly came to rely on Western capital and could not afford to lose the business of foreign merchants who refused to submit to Islamic regulations.[5]
The first significant changes to the legal system of British India were initiated in the late 18th century by the governor of Bengal Warren Hastings. Hastings' plan of legal reform envisioned a multi-tiered court system for the Muslim population, with a middle tier of British judges advised by local Islamic jurists, and a lower tier of courts operated by qadis. Hastings also commissioned a translation of the classic manual of Hanafi fiqh, Al-Hidayah, from Arabic into Persian and then English, later complemented by other texts.[191][192] These translations enabled British judges to pass verdicts in the name of Islamic law based on a combination of Sharia rules and common law doctrines, and eliminated the need to rely on consultation by local ulema, whom they mistrusted. In the traditional Islamic context, a concise text like Al-Hidayah would be used as a basis for classroom commentary by a professor, and the doctrines thus learned would be mediated in court by judicial discretion, consideration of local customs and availability of different legal opinions that could fit the facts of the case. The British use of Al-Hidayah, which amounted to an inadvertent codification of Sharia, and its interpretation by judges trained in Western legal traditions anticipated later legal reforms in the Muslim world.[191][193]
British administrators felt that Sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed".[191] In the course of the 19th century, criminal laws and other aspects of the Islamic legal system in India were supplanted by British law, with the exception of Sharia rules retained in family laws and some property transactions.[191][192] Among other changes, these reforms brought about abolition of slavery, prohibition of child marriage, and a much more frequent use of capital punishment.[194][192] The resulting legal system, known as Anglo-Muhammadan law, was treated by the British as a model for legal reforms in their other colonies. Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice. This, together with their conception of Islamic law as a collection of inflexible rules, led to an emphasis on traditionalist forms of Sharia that were not rigorously applied in the pre-colonial period and served as a formative influence on the modern identity politics of the Muslim world.[192]
Ottoman Empire
[edit]
During the colonial era, Muslim rulers concluded that they could not resist European pressure unless they modernized their armies and built centrally administered states along the lines of Western models. In the Ottoman Empire, the first such changes in the legal sphere involved placing the formerly independent waqfs under state control. This reform, passed in 1826, enriched the public treasury at the expense of the waqfs, thereby depleting the financial support for traditional Islamic legal education. Over the second half of the 19th century, a new hierarchical system of secular courts was established to supplement and eventually replace most religious courts. Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects.[195] The Tanzimat reforms of the 19th century saw reorganization of both Islamic civil law and sultanic criminal law after the model of the Napoleonic Code.[56] In the 1870s, a codification of civil law and procedure (excepting marriage and divorce), called the Mecelle, was produced for use in both Sharia and secular courts. It adopted the Turkish language for the benefit of the new legal class who no longer possessed competence in the Arabic idiom of traditional jurisprudence. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". The Mecelle was promulgated as a qanun (sultanic code), which represented an unprecedented assertion of the state's authority over Islamic civil law, traditionally the preserve of the ulema.[195] The 1917 Ottoman Law of Family Rights adopted an innovative approach of drawing rules from minority and majority opinions of all Sunni madhhabs with a modernizing intent.[25] The Republic of Turkey, which emerged after the dissolution of the Ottoman Empire, abolished its Sharia courts and replaced Ottoman civil laws with the Swiss Civil Code,[56] but Ottoman civil laws remained in force for several decades in Jordan, Lebanon, Palestine, Syria, and Iraq.[25][56]
Nation states
[edit]
Westernization of legal institutions and expansion of state control in all areas of law, which began during the colonial era, continued in nation-states of the Muslim world.[196] Sharia courts at first continued to exist alongside state courts as in earlier times, but the doctrine that sultanic courts should implement the ideals of Sharia was gradually replaced by legal norms imported from Europe. Court procedures were also brought in line with European practice. Though the Islamic terms qadi and mahkama (qadi's/Sharia court) were preserved, they generally came to mean judge and court in the Western sense. While in the traditional Sharia court all parties represented themselves, in modern courts they are represented by professional lawyers educated in Western-style law schools, and the verdicts are subject to review in an appeals court. In the 20th century, most countries abolished a parallel system of Sharia courts and brought all cases under a national civil court system.[5]
In most Muslim-majority countries, traditional rules of classical fiqh have been largely preserved only in family law. In some countries religious minorities such as Christians or Shia Muslims have been subject to separate systems of family laws.[5] Many Muslims today believe that contemporary Sharia-based laws are an authentic representation of the pre-modern legal tradition. In reality, they generally represent the result of extensive legal reforms made in the modern era.[196] As traditional Islamic jurists lost their role as authoritative interpreters of the laws applied in courts, these laws were codified by legislators and administered by state systems which employed a number of devices to effect changes,[5] including:
- Selection of alternative opinions from traditional legal literature (takhayyur), potentially among multiple madhhabs or denominations, and combining parts of different rulings (talfiq).[196][197]
- Appeal to the classical doctrines of necessity (darura), public interest (maslaha), and the objectives (maqasid) of Sharia, which played a limited role in classical fiqh, but were now given wider utilitarian applications.[196][197][193]
- Changes in administrative law that grant the courts discretionary powers to restrict certain practices which are not forbidden by substantive law (e.g., polygamy), in some cases imposing penal sanctions as additional deterrence.[196][197]
- Modernist interpretation of Islamic scriptures without adherence to the rules or methodologies of traditional jurisprudence, known as neo-ijtihad.[196][197]
The most powerful influence on liberal reformist thought came from the work of the Egyptian Islamic scholar Muhammad ʿAbduh (1849–1905). Abduh viewed only Sharia rules pertaining to religious rituals as inflexible, and argued that the other Islamic laws should be adapted based on changing circumstances in consideration of social well-being. Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence.[25] He championed a creative approach to ijtihad that involved direct interpretation of scriptures as well as the methods of takhayyur and talfiq.[6][25]
One of the most influential figures in modern legal reforms was the Egyptian legal scholar Abd El-Razzak El-Sanhuri (1895–1971), who possessed expertise in both Islamic and Western law. Sanhuri argued that reviving Islamic legal heritage in a way that served the needs of contemporary society required its analysis in light of the modern science of comparative law. He drafted the civil codes of Egypt (1949) and Iraq (1951) based on a variety of sources, including classical fiqh, European laws, existing Arab and Turkish codes, and the history of local court decisions.[25][174] Sanhuri's Egyptian code incorporated few classical Sharia rules, but he drew on traditional jurisprudence more frequently for the Iraqi code.[174] Sanhuri's codes were subsequently adopted in some form by most Arab countries.[25]
Aside from the radical reforms of Islamic family law carried out in Tunisia (1956) and Iran (1967), governments often preferred to make changes that made a clear break from traditional Sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage. Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of Quranic shares.[25][174] Some reforms have faced strong conservative opposition. For example, the 1979 reform of Egyptian family law, promulgated by Anwar Sadat through presidential decree, provoked an outcry and was annulled in 1985 by the supreme court on procedural grounds, to be later replaced by a compromise version.[25] The 2003 reform of Moroccan family law, which sought to reconcile universal human rights norms and the country's Islamic heritage, was drafted by a commission that included parliamentarians, religious scholars and feminist activists, and the result has been praised by international rights groups as an example of progressive legislation achieved within an Islamic framework.[198][25]
Islamization
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The Islamic revival of the late 20th century brought the topic of Sharia to international attention in the form of numerous political campaigns in the Muslim world calling for full implementation of Sharia.[5][199] A number of factors have contributed to the rise of these movements, classified under the rubric of Islamism or political Islam, including the failure of authoritarian secular regimes to meet the expectations of their citizens, and a desire of Muslim populations to return to more culturally authentic forms of socio-political organization in the face of a perceived cultural invasion from the West.[199][200] Shiite leaders such as Ayatollah Khomeini drew on leftist anticolonialist rhetoric by framing their call for Sharia as a resistance struggle. They accused secular leaders of corruption and predatory behavior, and claimed that a return to Sharia would replace despotic rulers with pious leaders striving for social and economic justice. In the Arab world these positions are often encapsulated in the slogan "Islam is the solution" (al-Islam huwa al-hall).[199]
Full implementation of Sharia theoretically refers to expanding its scope to all fields of law and all areas of public life.[5] In practice, Islamization campaigns have focused on a few highly visible issues associated with the conservative Muslim identity, particularly women's hijab and the hudud criminal punishments (whipping, stoning and amputation) prescribed for certain crimes.[199] For many Islamists, hudud punishments are at the core of the divine Sharia because they are specified by the letter of scripture rather than by human interpreters. Modern Islamists have often rejected, at least in theory, the stringent procedural constraints developed by classical jurists to restrict their application.[5] To the broader Muslim public, the calls for Sharia often represent, even more than any specific demands, a vague vision of their current economic and political situation being replaced by a "just utopia".[200]
A number of legal reforms have been made under the influence of these movements, starting from the 1970s when Egypt and Syria amended their constitutions to specify Sharia as the basis of legislation.[199] The Iranian Revolution of 1979 represented a watershed for Shiism advocates, demonstrating that it was possible to replace a secular regime with a theocracy.[199] Several countries, including Iran, Pakistan, Sudan, and some Nigerian states have incorporated hudud rules into their criminal justice systems, which, however, retained fundamental influences of earlier Westernizing reforms.[5][25] In practice, these changes were largely symbolic, and aside from some cases brought to trial to demonstrate that the new rules were being enforced, hudud punishments tended to fall into disuse, sometimes to be revived depending on the local political climate.[5][201] The supreme courts of Sudan and Iran have rarely approved verdicts of stoning or amputation, and the supreme courts of Pakistan and Nigeria have never done so.[201] Nonetheless, Islamization campaigns have also had repercussions in several other areas of law, leading to curtailment of rights of women and religious minorities, and in the case of Sudan contributing to the breakout of a civil war.[25]
Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern Sharia-based "Islamic state" should take. This is particularly the case for the theorists of Islamic economics and Islamic finance, who have advocated both free-market and socialist economic models.[25] The notion of "Sharia-compliant" finance has become an active area of doctrinal innovation and its development has had a major impact on business operations around the world.[199]
Contemporary applications
[edit]According to human rights groups, some of the classical sharia practices involve serious violations of basic human rights, gender equality and freedom of expression, and the practices of countries governed by sharia are criticized.[106] The European Court of Human Rights in Strasbourg (ECtHR) ruled in several cases that sharia is "incompatible with the fundamental principles of democracy".[202][203] "Human rights concept" have been categorically excluded by the governments of countries such as Iran and Saudi Arabia under sharia, claiming that it belongs to secular and western values,[106] while the Cairo conference by the Organisation of Islamic Cooperation declared that human rights can only be respected if they are compatible with Islam.[204]
Muslim-majority countries
[edit]The legal systems of most Muslim-majority countries can be classified as either secular or mixed. Sharia plays no role in secular legal systems. In mixed legal systems, Sharia rules are allowed to influence some national laws, which are codified and may be based on European or Indian models, and the central legislative role is played by politicians and modern jurists rather than the ulema (traditional Islamic scholars).
Saudi Arabia and some other Persian Gulf states possess what may be called classical Sharia systems, where national law is largely uncodified and formally equated with Sharia, with ulema playing a decisive role in its interpretation. Iran has adopted some features of classical Sharia systems, while also maintaining characteristics of mixed systems, like codified laws and a parliament.[205]
Constitutional law
[edit]Constitutions of many Muslim-majority countries refer to Sharia as a source or the main source of law, though these references are not in themselves indicative of how much the legal system is influenced by Sharia, and whether the influence has a traditionalist or modernist character.[5][6] The same constitutions usually also refer to universal principles such as democracy and human rights, leaving it up to legislators and the judiciary to work out how these norms are to be reconciled in practice.[206] Conversely, some countries (e.g., Algeria), whose constitution does not mention Sharia, possess Sharia-based family laws.[6] Nisrine Abiad identifies Bahrain, Iran, Pakistan, and Saudi Arabia as states with "strong constitutional consequences of Sharia "on the organization and functioning of power".[207]
Family law
[edit]Except for secular systems, Muslim-majority countries possess Sharia-based laws dealing with family matters (marriage, inheritance, etc.). These laws generally reflect influence of various modern-era reforms and tend to be characterized by ambiguity, with traditional and modernist interpretations often manifesting themselves in the same country, both in legislation and court decisions.[24] In some countries (e.g., parts of Nigeria), people can choose whether to pursue a case in a Sharia or secular court.[24][208]
Criminal law
[edit]
Countries in the Muslim world generally have criminal codes influenced by civil law or common law, and in some cases a combination of Western legal traditions. Saudi Arabia has never adopted a criminal code and Saudi judges still follow traditional Hanbali jurisprudence. In the course of Islamization campaigns, several countries (Libya, Pakistan, Iran, Sudan, Mauritania, and Yemen) inserted Islamic criminal laws into their penal codes, which were otherwise based on Western models. In some countries only hudud penalties were added, while others also enacted provisions for qisas (law of retaliation) and diya (monetary compensation). Iran subsequently issued a new "Islamic Penal Code". The criminal codes of Afghanistan and United Arab Emirates contain a general provision that certain crimes are to be punished according to Islamic law, without specifying the penalties. Some Nigerian states have also enacted Islamic criminal laws. Laws in the Indonesian province of Aceh provide for application of discretionary (ta'zir) punishments for violation of Islamic norms, but explicitly exclude hudud and qisas.[209] Brunei has been implementing a "Sharia Penal Code", which includes provisions for stoning and amputation, in stages since 2014.[210][211] The countries where hudud penalties are legal do not use stoning and amputation routinely, and generally apply other punishments instead.[5][201][212]
Property law
[edit]Sharia recognizes the concept of haqq.[213] Haqq refers to personal rights of the individual and the right to generate and accumulate wealth. The various ways in which property can be acquired under Sharia are purchase, inheritance, bequest, physical or mental effort, diya and donations.[214] Certain concepts relating to property under Sharia are Mulk, Waqf, Mawat and Motasarruf.[214]
Court procedures
[edit] | This section possibly contains original research. (March 2019) |
Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. In Saudi Arabia and Qatar, which have preserved traditional procedure in Sharia courts, trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents[215] under the principle of stare decisis,[216] and unlike civil law, Sharia is left to the interpretation in each case and has no formally codified universal statutes.[217]
The rules of evidence in Sharia courts traditionally prioritize oral testimony, and witnesses must be Muslim.[218][219][220][221][222] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of Sharia, such as those found in Hanbali jurisprudence, which forms the basis of law in Saudi Arabia.[218]
Evidences / testimonies
[edit]In Criminal cases: A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible in traditional sharia courts for hudud crimes, i.e., the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft.[223][224][225][226]
According to classical jurisprudence, testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male.[227]
Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence may likewise rejected in hudud cases in favor of eyewitnesses in some modern interpretations. In the case of regulations that were part of local Malaysian legislation that did not go into effect, this could cause severe difficulties for women plaintiffs in rape cases.[228][229] In Pakistan, DNA evidence is rejected in paternity cases on the basis of legislation that favors the presumption of children's legitimacy, while in sexual assault cases DNA evidence is regarded as equivalent to expert opinion and evaluated on a case-by-case basis.[230]
In civil cases;Quran 2:282 recommends written financial contracts with reliable witnesses, although there is dispute about equality of female testimony.[222]
Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice (Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a Sharia court as a form of debt. Written contracts were traditionally considered paramount in Sharia courts in the matters of dispute that are debt-related, which includes marriage contracts.[231] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.[232]
In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses historically triumphed over written contracts. Islamic jurists traditionally held that written commercial contracts may be forged.[232][233] Timur Kuran states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim-majority nations and communities.[233][234]
In lieu of written evidence, oaths are traditionally accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.[235] 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."[236] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury.[236]
Diya
[edit]In classical jurisprudence monetary compensation for bodily harm (diya or blood money) is assessed differently for different classes of victims. For example, for Muslim women the amount was half that assessed for a Muslim man.[237][238] Diya for the death of a free Muslim man is twice as high as for Jewish and Christian victims according to the Maliki and Hanbali madhhabs and three times as high according to Shafi'i rules.[239] Several legal schools assessed diya for Magians (majus) at one-fifteenth the value of a free Muslim male.[239]
Modern countries which incorporate classical diya rules into their legal system treat them in different ways. The Pakistan Penal Code modernized the Hanafi doctrine by eliminating distinctions between Muslims and non-Muslims.[240] In Iran, diya for non-Muslim victims professing one of the faiths protected under the constitution (Jews, Christians, and Zoroastrians) was made equal to diya for Muslims in 2004,[241] though according to a 2006 US State Department report, the penal code still discriminates against other religious minorities and women.[242] According to Human Rights Watch and the US State Department, in Saudi Arabia Jewish or Christian male plaintiffs are entitled to half the amount a Muslim male would receive, while for all other non-Muslim males the proportion is one-sixteenth.[243][244][245]
Role of fatwas
[edit]
The spread of codified state laws and Western-style legal education in the modern Muslim world has displaced traditional muftis from their historical role of clarifying and elaborating the laws applied in courts.[246][247] Instead, fatwas have increasingly served to advise the general public on other aspects of Sharia, particularly questions regarding religious rituals and everyday life.[246][248] Modern fatwas deal with topics as diverse as insurance, sex-change operations, moon exploration and beer drinking.[248] Most Muslim-majority states have established national organizations devoted to issuing fatwas, and these organizations to a considerable extent replaced independent muftis as religious guides for the general population.[249] State-employed muftis generally promote a vision of Islam that is compatible with state law of their country.[161]
Modern public and political fatwas have addressed and sometimes sparked controversies in the Muslim world and beyond.[161] Ayatollah Khomeini's proclamation condemning Salman Rushdie to death for his novel The Satanic Verses is credited with bringing the notion of fatwa to world's attention,[161][248] although some scholars have argued that it did not qualify as one.[note 13] Together with later militant fatwas, it has contributed to the popular misconception of the fatwa as a religious death warrant.[251]
Modern fatwas have been marked by an increased reliance on the process of ijtihad, i.e. deriving legal rulings based on an independent analysis rather than conformity with the opinions of earlier legal authorities (taqlid),[251] and some of them are issued by individuals who do not possess the qualifications traditionally required of a mufti.[161] The most notorious examples are the fatwas of militant extremists.[251] When Osama bin Laden and his associates issued a fatwa in 1998 proclaiming "jihad against Jews and Crusaders", many Islamic jurists, in addition to denouncing its content, stressed that bin Laden was not qualified to either issue a fatwa or proclaim a jihad.[161] New forms of ijtihad have also given rise to fatwas that support such notions as gender equality and banking interest, which are at variance with classical jurisprudence.[251]
In the internet age, a large number of websites provide fatwas in response to queries from around the world, in addition to radio shows and satellite television programs offering call-in fatwas.[161] Erroneous and sometimes bizarre fatwas issued by unqualified or eccentric individuals in recent times have sometimes given rise to complaints about a "chaos" in the modern practice of issuing fatwas.[248] There exists no international Islamic authority to settle differences in interpretation of Islamic law. An International Islamic Fiqh Academy was created by the Organisation of Islamic Cooperation, but its legal opinions are not binding.[247] The vast amount of fatwas produced in the modern world attests to the importance of Islamic authenticity to many Muslims. However, there is little research available to indicate to what extent Muslims acknowledge the authority of different muftis or heed their rulings in real life.[251]
Role of hisba
[edit]The classical doctrine of hisba, associated with the Quranic injunction of enjoining good and forbidding wrong, refers to the duty of Muslims to promote moral rectitude and intervene when another Muslim is acting wrongly.[252][253] Historically, its legal implementation was entrusted to a public official called muhtasib (market inspector), who was charged with preventing fraud, disturbance of public order and infractions against public morality. This office disappeared in the modern era everywhere in the Muslim world, but it was revived in Arabia by the first Saudi state, and later instituted as a government committee responsible for supervising markets and public order. It has been aided by volunteers enforcing attendance of daily prayers, gender segregation in public places, and a conservative notion of hijab.[252] Committee officers were authorized to detain violators before a 2016 reform.[254] With the rising international influence of Wahhabism, the conception of hisba as an individual obligation to police religious observance has become more widespread, which led to the appearance of activists around the world who urge fellow Muslims to observe Islamic rituals, dress code, and other aspects of Sharia.[252]
In Iran, hisba was enshrined in the constitution after the 1979 Revolution as a "universal and reciprocal duty", incumbent upon both the government and the people. Its implementation has been carried out by official committees as well as volunteer forces (basij).[252][257] Elsewhere, policing of various interpretations of Sharia-based public morality has been carried out by the Kano State Hisbah Corps in the Nigerian state of Kano,[258] by Wilayatul Hisbah in the Aceh province of Indonesia,[259] by the Committee for the Propagation of Virtue and the Prevention of Vice in the Gaza Strip, and by the Taliban during their 1996–2001 and 2021– rule of Afghanistan.[252] Religious police organizations tend to have support from conservative currents of public opinion, but their activities are often disliked by other segments of the population, especially liberals, urban women, and younger people.[260]
In Egypt, a law based on the doctrine of hisba had for a time allowed a Muslim to sue another Muslim over beliefs that may harm society, though because of abuses it has been amended so that only the state prosecutor may bring suit based on private requests.[261] Before the amendment was passed, a hisba suit brought by a group of Islamists against the liberal theologian Nasr Abu Zayd on charges of apostasy led to the annulment of his marriage.[262][263] The law was also invoked in an unsuccessful blasphemy suit against the feminist author Nawal El Saadawi.[261] Hisba has also been invoked in several Muslim-majority countries as rationale for blocking pornographic content on the internet and for other forms of faith-based censorship.[264]
Muslim-minority countries
[edit]Sharia also plays a role beyond religious rituals and personal ethics in some countries with Muslim minorities. For example, in Israel Sharia-based family laws are administered for the Muslim population by the Ministry of Justice through the Sharia Courts.[265] In India, the Muslim Personal Law (Shariat) Application Act provides for the use of Islamic law for Muslims in several areas, mainly related to family law.[266] In England, the Muslim Arbitration Tribunal makes use of Sharia family law to settle disputes, though this limited adoption of Sharia is controversial.[267][268][269]
Support and opposition
[edit]Support
[edit]A 2013 survey based on interviews of 38,000 Muslims, randomly selected from urban and rural parts in 39 countries using area probability designs, by the Pew Forum on Religion and Public Life found that a majority—in some cases "overwhelming" majority—of Muslims in a number of countries support making "Sharia" or "Islamic law" the law of the land, including Afghanistan (99%), Iraq (91%), Niger (86%), Malaysia (86%), Pakistan (84%), Morocco (83%), Bangladesh (82%), Egypt (74%), Indonesia (72%), Jordan (71%), Uganda (66%), Ethiopia (65%), Mali (63%), Ghana (58%), and Tunisia (56%).[270] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less than 50%: Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Kosovo (20%), Albania (12%), Turkey (12%), Kazakhstan (10%), Azerbaijan (8%). Regional averages of support were 84% in South Asia, 77% in Southeast Asia, 74% in the Middle-East/North Africa, 64%, in Sub-Saharan Africa, 18% in Southern-Eastern Europe, and 12% in Central Asia .[270]
However, while most of those who support implementation of Sharia favor using it in family and property disputes, fewer supported application of severe punishments such as whippings and cutting off hands, and interpretations of some aspects differed widely.[270] According to the Pew poll, among Muslims who support making Sharia the law of the land, most do not believe that it should be applied to non-Muslims. In the Muslim-majority countries surveyed this proportion varied between 74% (of 74% in Egypt) and 19% (of 10% in Kazakhstan), as percentage of those who favored making Sharia the law of the land.[271]
In all of the countries surveyed, respondents were more likely to define Sharia as "the revealed word of God" rather than as "a body of law developed by men based on the word of God".[272] In analyzing the poll, Amaney Jamal has argued that there is no single, shared understanding of the notions "Sharia" and "Islamic law" among the respondents. In particular, in countries where Muslim citizens have little experience with rigid application of Sharia-based state laws, these notions tend to be more associated with Islamic ideals like equality and social justice than with prohibitions.[273] Other polls have indicated that for Egyptians, the word "Sharia" is associated with notions of political, social and gender justice.[274]
In 2008, Rowan Williams, the Archbishop of Canterbury, has suggested that Islamic and Orthodox Jewish courts should be integrated into the British legal system alongside ecclesiastical courts to handle marriage and divorce, subject to agreement of all parties and strict requirements for protection of equal rights for women.[275] His reference to the sharia sparked a controversy.[275] Later that year, Nicholas Phillips, then Lord Chief Justice of England and Wales, stated that there was "no reason why sharia principles [...] should not be the basis for mediation or other forms of alternative dispute resolution."[276] A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed supported the introduction of sharia into British law for Muslims.[277] Michael Broyde, professor of law at Emory University specializing in alternative dispute resolution and Jewish law,[278] has argued that sharia courts can be integrated into the American religious arbitration system, provided that they adopt appropriate institutional requirements as American rabbinical courts have done.[279]
Opposition
[edit]
In the Western world, Sharia has been called a source of "hysteria",[280] "more controversial than ever", the one aspect of Islam that inspires "particular dread".[281] On the Internet, "dozens of self-styled counter-jihadis" emerged to campaign against Sharia law, describing it in strict interpretations resembling those of Salafi Muslims.[281] Also, fear of Sharia law and of the ideology of extremism among Muslims as well as certain congregations donating money to terrorist organizations within the Muslim community reportedly spread to mainstream conservative Republicans in the United States.[282] Former House Speaker Newt Gingrich won ovations calling for a federal ban on Sharia law.[282] The issue of "liberty versus Sharia" was called a "momentous civilisational debate" by right-wing pundit Diana West.[283] In 2008 in Britain, the future Prime Minister (David Cameron) declared his opposition to "any expansion of Sharia law in the UK."[284] In Germany, in 2014, the Interior Minister (Thomas de Maizière) told a newspaper (Bild), "Sharia law is not tolerated on German soil."[285]
Some countries and jurisdictions have explicit bans on sharia law. In Canada, for example, sharia law has been explicitly banned in Quebec by a 2005 unanimous vote of the National Assembly,[286] while the province of Ontario allows family law disputes to be arbitrated only under Ontario law.[287] In the U.S., opponents of Sharia have sought to ban it from being considered in courts, where it has been routinely used alongside traditional Jewish and Catholic laws to decide legal, business, and family disputes subject to contracts drafted with reference to such laws, as long as they do not violate secular law or the U.S. constitution.[288] After failing to gather support for a federal law making observing Sharia a felony punishable by up to 20 years in prison, anti-Sharia activists have focused on state legislatures.[288] By 2014, bills aimed against use of Sharia have been introduced in 34 states and passed in 11.[288] A notable example of this would be 2010 Oklahoma State Question 755, which sought to permanently ban the use of Sharia law in courts. While approved by voters, the Tenth Circuit Court of Appeals placed an injunction on the law. Citing the unconstitutionality of the law's impartial focus on a specific religion, the law was struck down and never took effect.[289] These bills have generally referred to banning foreign or religious law in order to thwart legal challenges.[288]
According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "[a]nthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of Sharia tend to ascribe many undesirable practices to Sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite."[290]
Contemporary debates and controversies
[edit]Compatibility with democracy
[edit]It has been argued that the extent to which Sharia is compatible with democracy depends on how it is culturally interpreted,[291] with a cultural position that Sharia represents the human attempt to interpret God's message associated with a greater preference for democracy than an Islamist interpretation that Sharia law is the literal word of God.[291]
General Muslim views
[edit]Scholars John L. Esposito and DeLong-Bas distinguish four attitudes toward Sharia and democracy prominent among contemporary Muslims:[292]
- Advocacy of democratic ideas, often accompanied by a belief that they are compatible with Islam, which can play a public role within a democratic system, as exemplified by many protestors who took part in the Arab Spring uprisings;
- Support for democratic procedures such as elections, combined with religious or moral objections toward some aspects of Western democracy seen as incompatible with sharia, as exemplified by Islamic scholars like Yusuf al-Qaradawi;
- Rejection of democracy as a Western import and advocacy of traditional Islamic institutions, such as shura (consultation) and ijma (consensus), as exemplified by supporters of absolute monarchy and radical Islamist movements;
- Belief that democracy requires restricting religion to private life, held by a minority in the Muslim world.
According to Polls conducted by Gallup and PEW in Muslim-majority countries; most Muslims see no contradiction between democratic values and religious principles, desiring neither a theocracy, nor a secular democracy, but rather a political model where democratic institutions and values can coexist with the values and principles of Sharia.[293][294][295]
Islamic political theories
[edit]
Muslih and Browers identify three major perspectives on democracy among prominent Muslims thinkers who have sought to develop modern, distinctly Islamic theories of socio-political organization conforming to Islamic values and law:[298]
- The rejectionist Islamic view, elaborated by Sayyid Qutb and Abul A'la Maududi, condemns imitation of foreign ideas, drawing a distinction between Western democracy and the Islamic doctrine of shura (consultation between ruler and ruled). This perspective, which stresses comprehensive implementation of Sharia, was widespread in the 1970s and 1980s among various movements seeking to establish an Islamic state, but its popularity has diminished in recent years.
- The moderate Islamic view stresses the concepts of maslaha (public interest), ʿadl (justice), and shura. Islamic leaders are considered to uphold justice if they promote public interest, as defined through shura. In this view, shura provides the basis for representative government institutions that are similar to Western democracy, but reflect Islamic rather than Western liberal values. Hasan al-Turabi, Rashid al-Ghannushi, and Yusuf al-Qaradawi have advocated different forms of this view.
- The liberal Islamic view is influenced by Muhammad Abduh's emphasis on the role of reason in understanding religion. It stresses democratic principles based on pluralism and freedom of thought. Authors like Fahmi Huwaidi and Tariq al-Bishri have constructed Islamic justifications for full citizenship of non-Muslims in an Islamic state by drawing on early Islamic texts. Others, like Mohammed Arkoun and Nasr Hamid Abu Zayd, have justified pluralism and freedom through non-literalist approaches to textual interpretation. Abdolkarim Soroush has argued for a "religious democracy" based on religious thought that is democratic, tolerant, and just. Islamic liberals argue for the necessity of constant reexamination of religious understanding, which can only be done in a democratic context.
European Court of Human Rights
[edit]In 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party over its announced intention to introduce Sharia-based laws, ruling that it would change Turkey's secular order and undermine democracy.[299] On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".[300][301][302] 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".[303] In an analysis, Maurits S. Berger found the ruling to be "nebulous" and surprising from a legal point of view, since the Court neglected to define what it meant by "Sharia" and would not, for example, be expected to regard Sharia rules for Islamic rituals as contravening European human rights values.[304] Kevin Boyle also criticized the decision for not distinguishing between extremist and mainstream interpretations of Islam and implying that peaceful advocacy of Islamic doctrines ("an attitude which fails to respect [the principle of secularism]") is not protected by the European Convention provisions for freedom of religion.[305]
Compatibility with human rights
[edit]Governments of several predominantly Muslim countries have criticized the Universal Declaration of Human Rights (UDHR) for its perceived failure to take into account the cultural and religious context of non-Western countries. Iran declared in the UN assembly that UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.[306] 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.[307][308] 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.[309][310]
Ann Elizabeth Mayer points to notable absences from the Cairo Declaration: provisions for democratic principles, protection for religious freedom, freedom of association and freedom of the press, as well as equality in rights and equal protection under the law. Article 24 of the Cairo declaration states that "all the rights and freedoms stipulated in this Declaration are subject to the Islamic shari'a".[311]
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."[312]
H. Patrick Glenn states that Sharia is structured around the concept of mutual obligations of a collective, and it considers individual human rights as potentially disruptive and unnecessary to its revealed code of mutual obligations. In giving priority to this religious collective rather than individual liberty, the Islamic law justifies the formal inequality of individuals (women, non-Islamic people).[313] Bassam Tibi states that Sharia framework and human rights are incompatible.[314] Abdel al-Hakeem Carney, in contrast, states that Sharia is misunderstood from a failure to distinguish Sharia from siyasah (politics).[315]
Blasphemy
[edit]
In classical fiqh, blasphemy refers to any form of cursing, questioning or annoying God, Muhammad or anything considered sacred in Islam,[316][317][318][319] including denying one of the Islamic prophets or scriptures, insulting an angel or refusing to accept a religious commandment.[320] Jurists of different schools prescribed different punishment for blasphemy against Islam, by Muslims and non-Muslims, ranging from imprisonment or fines to the death penalty.[316][321][322][323] In some cases, sharia allows non-Muslims to escape death by converting and becoming a devout follower of Islam.[324] In the modern Muslim world, the laws pertaining to blasphemy vary by country, and some countries prescribe punishments consisting of fines, imprisonment, flogging, hanging, or beheading.[325]
Blasphemy laws were rarely enforced in pre-modern Islamic societies, but in the modern era some states and radical groups have used charges of blasphemy in an effort to burnish their religious credentials and gain popular support at the expense of liberal Muslim intellectuals and religious minorities.[326]
Blasphemy, as interpreted under Sharia, is controversial.[327] Representatives of the Organisation of Islamic Cooperation have petitioned the United Nations to condemn "defamation of religions" because "Unrestricted and disrespectful freedom of opinion creates hatred and is contrary to the spirit of peaceful dialogue".[328] The Cairo Declaration on Human Rights in Islam subjects free speech to unspecified Sharia restrictions: Article 22(a) of the Declaration states that "Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariah."[329] Others, in contrast, consider blasphemy laws to violate freedom of speech,[330] stating that freedom of expression is essential to empowering both Muslims and non-Muslims, and point to the abuse of blasphemy laws in prosecuting members of religious minorities, political opponents, and settling personal scores.[331][332][333] In Pakistan, blasphemy laws have been used to convict more than a thousand people, about half of them Ahmadis and Christians.[334][333] While none have been legally executed,[334] two Pakistani politicians, Shahbaz Bhatti and Salmaan Taseer, have been assassinated over their criticism of the blasphemy laws. The Pakistani blasphemy laws are based upon colonial-era legislation which made it a "crime to disturb a religious assembly, trespass on burial grounds, insult religious beliefs or intentionally destroy or defile a place or an object of worship", with these laws being modified between 1980 and 1986 by the military government of General Zia-ul Haq to make them more severe. A number of clauses were added by the government in order to "Islamicise" the laws and deny the Muslim character of the Ahmadi minority.[333]
Apostasy
[edit]
According to Islam, apostasy from Islam is a sin[336][337] while Al-Baqara 256 says "there is no compulsion in religion".[338] Typically there is a waiting period to allow the apostate time to repent and to return to Islam.[336][339][340][341] Wael Hallaq writes that "[in] a culture whose lynchpin is religion, religious principles and religious morality, apostasy is in some way equivalent to high treason in the modern nation-state".[342] Early Islamic jurists set the standard for apostasy from Islam so high that practically no apostasy verdict could be passed before the 11th century,[343] but later jurists lowered the bar for applying the death penalty, allowing judges to interpret the apostasy law in different ways,[343] which they did sometimes leniently and sometimes strictly.[344] In the late 19th century, the use of criminal penalties for apostasy fell into disuse, although civil penalties were still applied.[336]
Some Islamic jurists continue to regard apostasy as a crime deserving the death penalty.[339] A number of liberal and progressive Islamic scholars have argued that apostasy should not be viewed as a crime.[345] [346][336][347] Others argue that the death penalty is an inappropriate punishment,[348][349] inconsistent with the Qur'anic verses such as Al-Baqara 256 containing "no compulsion in religion";[345] or that it was a man-made rule enacted in the early Islamic community to prevent and punish the equivalent of desertion or treason,[350] and should be enforced only if apostasy becomes a mechanism of public disobedience and disorder (fitna).[351] According to Khaled Abou El Fadl, moderate Muslims do not believe that apostasy requires punishment.[352] The death penalty[353][354] or other punishment for apostasy in Islam is a violation of universal human rights, and an issue of freedom of faith and conscience.[348][355]
Twenty-three Muslim-majority countries, as of 2013[update], penalized apostasy from Islam through their criminal laws.[356] As of 2014[update], apostasy from Islam was a capital offense in Afghanistan, Brunei, Mauritania, Qatar, Saudi Arabia, Sudan, the United Arab Emirates, and Yemen.[357][358] In other countries, Sharia courts could use family laws to void the Muslim apostate's marriage and to deny child-custody rights as well as inheritance rights.[359] In the years 1985–2006, four individuals were legally executed for apostasy from Islam: "one in Sudan in 1985; two in Iran, in 1989 and 1998; and one in Saudi Arabia in 1992."[345] While modern states have rarely prosecuted apostasy, the issue has a "deep cultural resonance" in some Muslim societies and Islamists have tended to exploit it for political gain.[345] In a 2008–2012 Pew Research Center poll, public support for capital punishment for apostasy among Muslims ranged from 78% in Afghanistan to less than 1% in Kazakhstan, reaching over 50% in 6 of the 20 countries surveyed.
LGBT rights
[edit]
Homosexual intercourse is illegal in classical Sharia, with different penalties, including capital punishment, stipulated depending on the situation and legal school. In pre-modern Islam, the penalties prescribed for homosexual acts were "to a large extent theoretical" according to the Encyclopaedia of Islam, owing in part to stringent procedural requirements for their harsher (hudud) forms and in part to prevailing social tolerance toward same-sex relationships.[360] Historical instances of prosecution for homosexual acts are rare, and those which followed Sharia rules are even rarer.[361] Public attitudes toward homosexuality in the Muslim world turned more negative starting from the 19th century through the gradual spread of Islamic fundamentalist movements such as Salafism and Wahhabism,[362][363][364] and under the influence of sexual notions prevalent in Europe at that time.[365][366] A number of Muslim-majority[367] countries have retained criminal penalties for homosexual acts enacted under colonial rule.[368][369] In recent decades, prejudice against LGBT individuals in the Muslim world has been exacerbated by increasingly conservative attitudes and the rise of Islamist movements, resulting in Sharia-based penalties enacted in several countries.[369] The death penalty for homosexual acts is currently a legal punishment in Brunei, Iran, Mauritania, some northern states in Nigeria, Pakistan, Qatar, Saudi Arabia, parts of Somalia, and Yemen, all of which have Sharia-based criminal laws. It is unclear whether the laws of Afghanistan and United Arab Emirates provide for the death penalty for gay sex, as they have never been carried out.[needs update][370][371] Criminalization of consensual homosexual acts and especially making them liable to capital punishment has been condemned by international rights groups. According to polls, the level of social acceptance for homosexuality ranges from 52% among Muslims in the U.S. to less than 10% in a number of Muslim-majority nations.
Women
[edit]
Personal status and child marriage
[edit]Shari'a is the basis for personal status laws in most Islamic-majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report mentions that Sharia law provisions are different for women in financial matters than from general human rights provisions. In many countries, in legal proceedings relating to Sharia-based personal status law, in financial cases a woman's testimony is worth half of a man's before a court.[221]
The 1917 codification of Islamic family law in the Ottoman empire distinguished between the age of competence for marriage, which was set at 18 for boys and 17 for girls, and the minimum age for marriage, which followed the traditional Hanafi limits of 12 for boys and 9 for girls. Marriage below the age of competence was permissible only if proof of sexual maturity was accepted in court, while marriage under the minimum age was forbidden. During the 20th century, most countries in the Middle East followed the Ottoman precedent in defining the age of competence, while raising the minimum age to 15 or 16 for boys and 13–16 for girls. Marriage below the age of competence is subject to approval by a judge and the legal guardian of the adolescent. Egypt diverged from this pattern by setting the age limits of 18 for boys and 16 for girls, without a distinction between competence for marriage and minimum age.[372]
Property rights
[edit]Islamic law granted Muslim women certain legal rights, such as property rights which women in the West did not possess until "comparatively recent times".[373][374][375] Starting with the 20th century, Western legal systems evolved to expand women's rights, but women's rights in the Muslim world have to varying degree remained tied to the Quran, hadiths and their traditional interpretations by Islamic jurists.[376][377] Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran.[378] A woman's inheritance can be unequal is she inherits from her father as a daughter's inheritance is usually half of that of her brother's.[Quran 4:11][379]
Domestic violence
[edit]Jonathan A.C. Brown says:
The vast majority of the ulama across the Sunni schools of law inherited the Prophet's unease over domestic violence and placed further restrictions on the evident meaning of the 'Wife Beating Verse'. A leading Meccan scholar from the second generation of Muslims, Ata' bin Abi Rabah, counseled a husband not to beat his wife even if she ignored him but rather to express his anger in some other way. Darimi, a teacher of both Tirmidhi and Muslim bin Hajjaj as well as a leading early scholar in Iran, collected all the Hadiths showing Muhammad's disapproval of beating in a chapter entitled 'The Prohibition on Striking Women'. A thirteenth-century scholar from Granada, Ibn Faras, notes that one camp of ulama had staked out a stance forbidding striking a wife altogether, declaring it contrary to the Prophet's example and denying the authenticity of any Hadiths that seemed to permit beating. Even Ibn Hajar, the pillar of late medieval Sunni Hadith scholarship, concludes that, contrary to what seems to be an explicit command in the Qur'an, the Hadiths of the Prophet leave no doubt that striking one's wife to discipline her actually falls under the Shariah ruling of 'strongly disliked' or 'disliked verging on prohibited'.[380]
The Surah 4:34, in the Quran, has been debated for domestic violence and also has been the subject to varied interpretations.[381][382] According to some interpretations, Sharia condones certain forms of domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife only after admonishing and staying away from the bed does not work.[383] These interpretations have been criticized as inconsistent with women's rights in domestic abuse cases.[384][385][386][387] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify Sharia-inspired laws to improve women's rights in Muslim-majority nations, including women's rights in domestic abuse cases.[388][389][390][391]
Others believe that wife-beating is not consistent with a more modernist perspective of the Quran.[392] Many Imams and scholars who learned Shariah in traditional Islamic seminaries object to the misuse of this verse to justify domestic violence. Muslims for White Ribbon Campaign was launched in 2010 with Imams and Muslim leaders committing to join with others to work to end violence against women.[393] Khutbah campaigns were held in many parts of the world to speak out against domestic violence and encourage Muslim congregants to eradicate domestic abuse.[394][395][396]
Rape
[edit]Rape is considered a serious crime in the Sharia law since the Islamic prophet Muhammad ordered rapists to be punished by stoning.[397] The terms ghasaba and ightasaba have been used by traditional jurists when discussing sexual assault and its punishment. Imam Al-Shāfi'ī defined rape as: "Forcing a woman to commit zinā against her will". To the Ḥanafis, illegal intercourse is considered rape when there is no consent and no deliberate action from the victim. In Mālik's view, rape refers to any kind of unlawful sexual intercourse by usurpation and without consent. This includes instances when the condition of the victims prevents them from expressing their resistance, such as insanity, sleep or being under age. The Hanbalites, similar to the Mālikites, consider the use of any kind of force as a denial of consent from the victim. The threat of starvation or suffering the cold of winter are also regarded as against one's will.[398]
Slavery
[edit]Sharia authorized the institution of slavery, using the words abd (slave) and the phrase ma malakat aymanukum ("that which your right hand owns") to refer to women slaves, seized as captives of war.[399][400] Under Islamic law, Muslim men could have sexual relations with female captives and slaves.[401][376][402][403] Sharia, in Islam's history, provided a religious foundation for enslaving non-Muslim women and men, but allowed for the manumission of slaves.[404][405] A slave woman who bore a child to her Muslim master (umm al-walad) could not be sold, becoming legally free upon her master's death, and the child was considered free and a legitimate heir of the father.[406][407]
Terrorism
[edit]
Some extremists have used their interpretation of Islamic scriptures and Sharia, in particular the doctrine of jihad, to justify acts of war and terror against Muslim as well as non-Muslim individuals and governments.[408][409][410] The expert on terrorism Rachel Ehrenfeld wrote that the "Sharia's finance (Islamic banking) is a new weapon in the arsenal of what might be termed fifth-generation warfare (5GW)".[411] However, sharia-compliant financing actually requires a person to stay away from weapons manufacturing.[412][413][414]
In classical fiqh, the term jihad refers to armed struggle against oppressors.[415][416] Classical jurists developed an elaborate set of rules pertaining to jihad, including prohibitions on harming those who are not engaged in combat.[417][418] According to Bernard Lewis, "[a]t no time did the classical jurists offer any approval or legitimacy to what we nowadays call terrorism"[419] and the terrorist practice of suicide bombing "has no justification in terms of Islamic theology, law or tradition".[420] In the modern era the notion of jihad has lost its jurisprudential relevance and instead gave rise to an ideological and political discourse.[421] While modernist Islamic scholars have emphasized defensive and non-military aspects of jihad, some radicals have advanced aggressive interpretations that go beyond the classical theory.[421] For al-Qaeda ideologues, in jihad all means are legitimate, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians.[408]
Some modern ulema, such as Yusuf al-Qaradawi and Sulaiman Al-Alwan, have supported attacks against Israeli army reservists and hence should be considered as soldiers, while Hamid bin Abdallah al-Ali declared that suicide attacks in Chechnya were justified as a "sacrifice".[408][422] Many prominent Islamic scholars, including al-Qaradawi himself, have issued condemnations of terrorism in general terms.[423] For example, Abdul-Aziz ibn Abdullah Al ash-Sheikh, the Grand Mufti of Saudi Arabia has stated that "terrorizing innocent people [...] constitute[s] a form of injustice that cannot be tolerated by Islam", while Muhammad Sayyid Tantawy, Grand Imam of al-Azhar and former Grand Mufti of Egypt has stated that "attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment".[408][424]
Comparison with other legal systems
[edit]Jewish law
[edit]Islamic legal tradition has a number of parallels with Judaism. In both religions, revealed law holds a central place, in contrast to Christianity which does not possess a body of revealed law, and where theology rather than law is considered to be the principal field of religious study. [3][425] Both Islamic and Jewish law (Halakha) are derived from formal textual revelations (Quran and Pentateuch) as well as less formal, orally transmitted prophetic traditions (hadith and mishna). According to some scholars, the words sharia and halakha both mean literally "the path to follow". The fiqh literature parallels rabbinical law developed in the Talmud, with fatwas being analogous to rabbinic responsa.[426][249]
However, the emphasis on qiyas in classical Sunni legal theory is both more explicitly permissive than Talmudic law with respect to authorizing individual reason as a source of law, and more implicitly restrictive, in excluding other, unauthorized forms of reasoning.[426]
Western legal systems
[edit]Early Islamic law developed a number of legal concepts that anticipated similar such concepts that later appeared in English common law.[427][428] Similarities exist between the royal English contract protected by the action of debt and the Islamic Aqd, between the English assize of novel disseisin and the Islamic Istihqaq, and between the English jury and the Islamic Lafif in classical Maliki jurisprudence.[427][429] The law schools known as Inns of Court also parallel Madrasahs.[427] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems,[430] as are the English trust and agency institutions to the Islamic Waqf and Hawala institutions, respectively.[431][432][428]
Elements of Islamic law also have other parallels in Western legal systems. For example, the influence of Islam on the development of an international law of the sea can be discerned alongside that of the Roman influence.[433] George Makdisi has argued that the madrasa system of attestation paralleled the legal scholastic system in the West, which gave rise to the modern university system. The triple status of faqih ("master of law"), mufti ("professor of legal opinions") and mudarris ("teacher"), conferred by the classical Islamic legal degree, had its equivalents in the medieval Latin terms magister, professor and doctor, respectively, although they all came to be used synonymously in both East and West.[434]
Makdisi suggested that the medieval European doctorate, licentia docendi was modeled on the Islamic degree ijazat al-tadris wa-l-ifta, of which it is a word-for-word translation, with the term ifta' (issuing of fatwas) omitted.[434][435] He also argued that these systems shared fundamental freedoms: the freedom of a professor to profess his personal opinion and the freedom of a student to pass judgement on what he is learning.[434]
There are differences between Islamic and Western legal systems. For example, Sharia classically recognizes only natural persons, and never developed the concept of a legal person, or corporation, i.e., a legal entity that limits the liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives.[436] Interest prohibitions imposed secondary costs by discouraging record keeping and delaying the introduction of modern accounting.[437] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.[438] However, the rise of monopoly wealth and corporations have proven to also be detrimental to the economic equality of a society. Ziauddin Sardar also suggests that the promotion of equitable wealth distribution and suppression of monopoly capital are a part of Islam's message that emphasises genuine equity and justice.[439]
See also
[edit]- Criticism of Islam
- Criticism of Islamism
- Dīn
- Glossary of Islam
- Guardianship of the Islamic Jurists
- Imam Nawawi's Forty Hadith – a brief collection of forty hadith by the founder of the Shāfiʿī school – each used to illustrate a fundamental of shariah
- Islamic advice literature
- Islamic republic
- Islamic Sharia Council – a court in the United Kingdom with no legal authority
- Ma'ruf
- Principle of legality in French criminal law
- Sources of Islamic law
- Halakha
- Theonomy
Notes
[edit]- ^ Twelver Shia jurisprudence does not recognize the use of qiyas, but relies on reason (ʿaql) in their place. [10] [11]
- ^ For example, Shiite Muslims, unlike the Sunnis, have adopted an approach that the first three caliphs are "illegitimate" in terms of their management styles, exemplary personalities and religious jurisprudence, as well as their election method.[16]
- ^ "...the essential features of old Muhammadan jurisprudence, such as the idea of the 'living tradition' of the ancient schools of law [local practices of early Muslim communities]; a body of common doctrine expressing the earliest effort to systematize; legal maxims which often reflect a slightly later stage, and an important nucleus of legal traditions... it is safe to say that [this] Muhammadan legal science started in the later part of the Umaiyad period, taking the legal practice of the time as its raw material and endorsing, modifying, or rejecting it"[43]
- ^ Islamic "law did not derive directly from the Koran but developed... out of popular and administrative practices under the Umayyads, and this practice often diverged from the intentions and even the explicit wording of the Koran... Norms derived from the Koran were introduced into Muhammadan law almost invariably at a secondary stage"[44]
- ^ "In the time of Shafi'i, traditions from the Prophet were already recognized as one of the material bases of Muhammadan law. Their position in the ancient schools of law was, as we have seen, much less certain."[45] Another example is that an early major works of fiqh—Muwatta Imam Malik (edited by Shaibani)—contains 429 ahadith by Muhammad but 750 by the Companions, Successors and others,[46] in contrast to later works by al-Bukhari, Muslim, etc. that contain only ahadith by Muhammad.
- ^ "...a great many traditions in the classical and other collections were put into circulation only after Shafi'i's time; the first considerable body of legal traditions from the Prophet originated towards the middle of the second century..."[48]
- ^ Gerd R. Puin, Lawrence Conrad, Patricia Crone, and Joseph Schacht reached these conclusions by examining early Quranic manuscriptss,[71] sirah books written in the early period of Islam,[72] changes in sunnah and hadith terminologies[73][74][75][76] and the chains of narration of hadith[77] respectively.
- ^ By 1980, veiling was required in government and educational settings in Iran, with the 1983 penal code imposing 74 lashes for not adhering to the hijab, though the exact requirements were unclear.[135][133][136] This led to public tensions and vigilante actions regarding proper hijab.[135][133] Subsequent regulations in 1984 and 1988 clarified dress-code standards, and the current penal code prescribes fines or prison terms for failing to observe hijab, without detailing its specific form.[135][137][138]
- ^ Beyza Bilgin states that the expression 'let them put their outer coverings over themselves' in the 59th verse of Al-Ahzab was revealed because they harassed women under the conditions of that day, considering them to be concubines, and commented as follows:[140]
She said the following about covering herself in prayer :"In other words, veiling is a security issue that arose according to the needs of that period. These are not taken into consideration at all and are reflected as God's command. Women have been called God's command for a thousand years. Women said the same thing to their daughters and daughters-in-law."
"They tell me; 'Do you cover yourself while praying?' Of course, I cover up when I'm in congregation. I am obliged not to disturb the peace. But I also pray with my head uncovered in my own home. Because the Quran's requirement for prayer is not covering up, but ablution and turning towards the qibla. This is a thousand year old issue. It's so ingrained in us. But this should definitely not be underestimated. Because people do it thinking it is God's command. But on the other hand, we should not declare a person who does not cover up as a bad woman."[140]
- ^ "The Caliphate in Baghdad at the beginning of the 10th Century had 7,000 black eunuchs and 4,000 white eunuchs in his palace."[142] The Arab slave trade typically dealt in the sale of castrated male slaves. Black boys at the age of eight to twelve had their penises and scrota completely amputated. Reportedly, about two out of three boys died, but those who survived drew high prices.[143]
- ^ In Shiite jurisprudence, it is unlawful for a master of a female slave to grant a third party the use of her for sexual relations. The Shiite scholar Shaykh al-Tusi stated: ولا يجوز إعارتها للاستمتاع بها لأن البضع لا يستباح بالإعارة "It is not permissible to loan (the slave girl) for enjoyment purpose, because sexual intercourse cannot be legitimate through loaning"[144] and the Shiite scholars al-Muhaqiq al-Kurki, Allamah Al-Hilli and Ali Asghar Merwarid made the following ruling: ولا تجوز استعارة الجواري للاستمتاع "It is not permissible to loan the slave girl for the purpose of sexual intercourse"[145]
- ^ "What theology is for the Christian, law is for the Muslim."[153] referenced in [154]
- ^ Khomeini himself did not call this proclamation a fatwa, and in Islamic legal theory only a court can decide whether an accused is guilty. However, after the proclamation was presented as a fatwa in Western press, this characterization was widely accepted by both its critics and its supporters.[246][250]
- ^ /ʃəˈriːə/; Arabic: شَرِيعَة, romanized: sharīʿah, IPA: [ʃaˈriːʕa]
Citations
[edit]- ^ a b Bassiouni, M. Cherif (2014) [2013]. "The Sharīa, Sunni Islamic Law (Fiqh), and Legal Methods (Ilm Uṣūl al-Fiqh)". In Bassiouni, M. Cherif (ed.). The Shari'a and Islamic Criminal Justice in Time of War and Peace. Cambridge: Cambridge University Press. pp. 18–87. doi:10.1017/CBO9781139629249.003. ISBN 9781139629249. LCCN 2013019592. Archived from the original on 17 October 2021. Retrieved 17 October 2021.
- ^ a b "British & World English: sharia". Oxford: Oxford University Press. Archived from the original on 8 December 2015. Retrieved 4 December 2015.
- ^ a b Dahlén 2003, chpt. 2a.
- ^ a b c d e John L. Esposito, ed. (2014). "Islamic Law". The Oxford Dictionary of Islam. Oxford: Oxford University Press. Archived from the original on 31 March 2019. Retrieved 29 January 2017.
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af ag ah ai aj ak al am an ao ap aq ar as at au av aw ax ay az ba bb bc bd be bf bg bh bi bj bk Vikør 2014.
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac Calder 2009.
- ^ "Customary law has also been an important part of Islamic law. It was used to resolve disputes that were not covered by sharia, and it also helped to adapt sharia to the needs of men in different societies and cultures." Islamic Law: An Introduction by John Esposito (2019) Esposito, John. Islamic Law: An Introduction. Oxford University Press, 2019. Page 31
- ^ "Another key principle that the early Islamic jurists developed was the concept of urf, or customary law. Urf is the customary practices of a particular community. The early jurists recognized that urf could be used to supplement or complement Islamic law. For example, if there was no clear ruling on a particular issue in the Quran or hadith, the jurists could look to urf for guidance." The Oxford Handbook of Islamic Law; Emon, Anver M., and Rumee Ahmed, editors. The Oxford Handbook of Islamic Law. Oxford University Press, 2018. p. 25.
- ^ Corinna Standke (30 August 2008). Sharia - The Islamic Law. GRIN Verlag. pp. 4–5. ISBN 978-3-640-14967-4. Retrieved 9 June 2012.
- ^ a b c d Dahlén 2003, chpt. 4c.
- ^ a b c d e Schneider 2014.
- ^ John L. Esposito, Natana J. DeLong-Bas (2001), Women in Muslim family law Archived 19 October 2017 at the Wayback Machine, p. 2. Syracuse University Press, ISBN 978-0815629085. Quote: "... by the ninth century, the classical theory of law fixed the sources of Islamic law at four: the Quran, the Sunnah of the Prophet, qiyas (analogical reasoning), and ijma (consensus)."
- ^ a b Coulson & El Shamsy 2019.
- ^ a b Hallaq 2010, p. 145.
- ^ "The System of Rule in Islam". 20 June 2010. Archived from the original on 8 November 2023. Retrieved 8 November 2023.
- ^ Sowerwine 2010, p. 5.
- ^ Robert G. Hoyland: In God's Path. The Arab Conquests and the Creation of an Islamic Empire (2015)
- ^ Patricia Crone / Martin Hinds: God's Caliph: Religious Authority in the First Centuries of Islam (1986)
- ^ https://dergipark.org.tr/tr/download/article-file/1699430 [bare URL]
- ^ Amanat 2009: "Muslim fundamentalists [...] claim that Shari'a and its sources [...] constitute a divine law that regulates all aspects of Muslim life, as well as Muslim societies and Muslim states [...]. Muslim modernists, [...] on the other hand, criticize the old approaches to Shari'a by traditional Muslim jurists as obsolete and instead advocate innovative approaches to Shari'a that accommodate more pluralist and relativist views within a democratic framework."
- ^ An-Na'im, Abdullahi A (1996). "Islamic Foundations of Religious Human Rights". In Witte, John; van der Vyver, Johan D. (eds.). Religious Human Rights in Global Perspective: Religious Perspectives. BRILL. pp. 337–59. ISBN 978-9041101792.
- ^ Hajjar, Lisa (2004). "Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis". Law & Social Inquiry. 29 (1): 1–38. doi:10.1111/j.1747-4469.2004.tb00329.x. ISSN 0897-6546. JSTOR 4092696. S2CID 145681085.
- ^ Al-Suwaidi, J. (1995). Arab and western conceptions of democracy; in Democracy, war, and peace in the Middle East (Editors: David Garnham, Mark A. Tessler), Indiana University Press, see Chapters 5 and 6; ISBN 978-0253209399[page needed]
- ^ a b c Otto 2008, p. 19.
- ^ a b c d e f g h i j k l m Mayer 2009.
- ^ a b c d e f g Calder & Hooker 2007, p. 321.
- ^ Sevim, Erdem (1 October 2016). "Path to the Universal Self in Haji Baktash Walî: Four Doors - Forty Stations" (PDF). Spiritual Psychology and Counseling. 1 (2). Association for Spiritual Psychology and Counseling. doi:10.12738/spc.2016.2.0014. ISSN 2458-9675. Archived (PDF) from the original on 4 March 2024. Retrieved 26 February 2024.
- ^ Otto 2008, pp. 9–10.
- ^ Calder & Hooker 2007, p. 323.
- ^ a b Calder & Hooker 2007, p. 326.
- ^ Abdal-Haqq, Irshad (2006). Understanding Islamic Law – From Classical to Contemporary (edited by Aminah Beverly McCloud). Chapter 1 Islamic Law – An Overview of its Origin and Elements. AltaMira Press. p. 4.
- ^ Hashim Kamali, Mohammad (2008). Shari'ah Law: An Introduction. Oneworld Publications. pp. 2, 14. ISBN 978-1851685653.
- ^ a b Weiss, Bernard G. (1998). The Spirit of Islamic Law. Athens, Georgia: University of Georgia Press. p. 17. ISBN 978-0820319773.
- ^ 45:18
- ^ 5:48
- ^ Ullmann, M. (2002). Wörterbuch der griechisch-arabischen Übersetzungen des neunten Jahrhunderts. Wiesbaden. p. 437.
Rom. 7: 22: 'συνήδομαι γὰρ τῷ νόμῳ τοῦ θεοῦ' is translated as 'أني أفرح بشريعة الله'
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Calder & Hooker 2007, p. 322.
- ^ "Corps de Droit Ottoman". Law Quarterly Review. 21. Stevens and Sons: 443–44. October 1905., Number LXXXIV "The religious law of the Sheri, of which the ultimate source is the Koran,[...]" – A review of Corps de Droit Ottoman
- ^ Strauss, Johann (2010). "A Constitution for a Multilingual Empire: Translations of the Kanun-ı Esasi and Other Official Texts into Minority Languages". In Herzog, Christoph; Malek Sharif (eds.). The First Ottoman Experiment in Democracy. Würzburg. pp. 21–51. Archived from the original on 11 October 2019. Retrieved 15 September 2019.
{{cite book}}: CS1 maint: location missing publisher (link) (info page on book Archived 20 September 2019 at the Wayback Machine at Martin Luther University) // Cited: (PDF p. 41/338) // ""Chéri" may sound ambiguous in French but the term, used in our context for Islamic law (Turkish: şer'(i), is widely used in the legal literature at that time." - ^ Forte, David F. (1978). "Islamic Law; the impact of Joseph Schacht" (PDF). Loyola Los Angeles International and Comparative Law Review. 1: 8. Archived (PDF) from the original on 20 April 2018. Retrieved 19 April 2018.
- ^ a b c Jokisch 2015.
- ^ Brown, Daniel W. (1996). Rethinking tradition in modern Islamic thought. Cambridge University Press. pp. 18–24. ISBN 978-0521570770. Archived from the original on 21 March 2019. Retrieved 10 May 2018.
- ^ Schacht, Joseph (1959) [1950]. The Origins of Muhammadan Jurisprudence. Oxford University Press. p. 190.
- ^ Schacht, Origins, p. 224
- ^ Schacht, Joseph (1959) [1950]. The Origins of Muhammadan Jurisprudence. Oxford University Press. p. 40.
- ^ Schacht, Joseph (1959) [1950]. The Origins of Muhammadan Jurisprudence. Oxford University Press. p. 22.
- ^ Jokisch, Benjamin (2018). "Origins of and influences on Islamic Law". In Anver M. Emon; Rumee Ahmed (eds.). The Oxford Handbook of Islamic Law. Oxford University Press. p. 393. ISBN 9780191668265. Archived from the original on 27 December 2020. Retrieved 11 November 2019.
- ^ Schacht, Joseph (1959) [1950]. The Origins of Muhammadan Jurisprudence. Oxford University Press. p. 4.
- ^ Al-Jallad 2022, p. 41–44, 68.
- ^ Dost 2023.
- ^ Khaled Abou El Fadl (1 October 2014). Speaking in God's Name: Islamic Law, Authority and Women. Oneworld Publications. pp. 525–526. ISBN 9781780744681.
- ^ Ahmed, Leila (1992). Women and Gender in Islam. New Haven: Yale University Press. p. 15.
- ^ El Guindi, Fadwa; Sherifa Zahur (2009). Hijab. The Oxford Encyclopedia of the Islamic World. doi:10.1093/acref/9780195305135.001.0001. ISBN 9780195305135.
- ^ KIRAZLI, SADIK (2011). "Conflict and Conflict Resolution in the pre-Islamic Arab Society". Islamic Studies. 50 (1): 25–53. ISSN 0578-8072. JSTOR 41932575.
- ^ a b c d e f g h Ziadeh 2009.
- ^ a b c d e f g h i j k Rabb 2009b.
- ^ a b Lapidus 2014, p. 125.
- ^ a b c Hallaq 2009, pp. 31–35.
- ^ Lapidus 2014, p. 130.
- ^ https://nou.edu.ng/coursewarecontent/ISL431%20Principles%20of%20Islamic%20Jurisprudence%20100713.pdf Archived 12 March 2024 at the Wayback Machine [bare URL PDF]
- ^ Some are derived from the science of Aristotelian logic which the philosopher-theologian writers mutakallimun had become accustomed to discussing in the introductions to their works. ........... Some are derived from Ilm al Kalam Scholastic Theology, and include discussions of such questions as the nature of the Sovereign Hakim, in the sense of whether it is the Shari'ah itself or reason which decides what is right and what is wrong;.... https://www.iefpedia.com/english/wp-content/uploads/2009/11/USUL-FIQH.pdf Archived 12 March 2024 at the Wayback Machine
- ^ Legal acts are valid when they fulfill all the essential requirements (arkān), causes, conditions and hindrances. They are void when any of these is lacking or deficient. https://nou.edu.ng/coursewarecontent/ISL431%20Principles%20of%20Islamic%20Jurisprudence%20100713.pdf Archived 12 March 2024 at the Wayback Machine
- ^ So, it was in this way that the Ummah, those who had not become involved with either the Shi'ah or the Khawarij, was divided into two groups, Ahl al Hadith and Ahl al Ra'i; and the conflict between them intensified.https://www.iefpedia.com/english/wp-content/uploads/2009/11/USUL-FIQH.pdf
- ^ Blankinship (2008, p. 53)
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- ^ "The Mihna. Deconstruction and reconsideration of the Mu'tazilite role in the "Inquisition". Archived from the original on 12 March 2024. Retrieved 12 March 2024.
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- ^ a b Hallaq 2009, p. 15.
- ^ Kamali 1999, pp. 121–22.
- ^ Rashīd Riḍā, Muhammad (1996). The Muhammadan Revelation. Alexandria, VA: Al-Saadawi Publications. p. 127. ISBN 1-881963-55-1.
- ^ Lester, Toby (January 1999). "What Is the Koran?". Atlantic. Archived from the original on 22 June 2015. Retrieved 24 September 2019.
- ^ "well into the second century A.H. [Islamic] scholarly opinion on the birth date of the Prophet displayed a range of variance of 85 years. On the assumption that chronology is crucial to the stabilization of any tradition of historical narrative, whether transmitted orally or in writing, one can see in this state of affairs a clear indication that sīra studies in the second century were still in a state of flux" Conrad (June 1987). "Abraha and Muhammad: Some Observations Apropos of Chronology and Literary topoi in the Early Arabic Historical Tradition". Bulletin of the School of Oriental and African Studies. 50 (2): 239. doi:10.1017/S0041977X00049016
- ^ a b c Juynboll, G. H. A. (1997). "Sunna". In Bearman, P.; Bianquis, Th.; Bosworth, C. E.; van Donzel, E.; Heinrichs, W. P. (eds.). Encyclopaedia of Islam. Vol. 9 (2nd ed.). Brill. pp. 878–879.
- ^ a b "Sunnah". Oxford Islamic Studies Online. Archived from the original on 16 June 2013. Retrieved 15 June 2020.
- ^ a b Schacht, Joseph (1959) [1950]. The Origins of Muhammadan Jurisprudence. Oxford University Press. p. 58.
- ^ "short reports (sometimes just a line or two) recording what an early figure, such as a companion of the prophet or Muhammad himself, said or did on a particular occasion, preceded by a chain of transmitters". However, she adds that "nowadays, hadith almost always means hadith from Muhammad himself." Crone, Patricia (10 June 2008). "What do we actually know about Muhammad?". Open Democracy. Retrieved 16 April 2018.
- ^ Reza Aslan quotes Schacht's maxim: `the more perfect the isnad, the later the tradition`, which he (Aslan) calls "whimsical but accurate" Future of Islam by Reza Aslan, (Random House, 2005) p.16
- ^ a b c d e f g h Hallaq 2009, pp. 16–18.
- ^ Dahlén 2003, chpt. 4b.
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Further reading
[edit]- Ahmad ibn Naqib al-Misri, Nuh Ha Mim Keller (1368). "Reliance of the Traveller" (PDF). Amana Publications. Retrieved 5 August 2022.
- Brockopp, Jonathan E. (2001). "Concubines". In Jane Dammen McAuliffe (ed.). Encyclopaedia of the Quran. Vol. 1. pp. 396–397.
- Coulson, Noel J. (1964). A History of Islamic Law. Edinburgh: Edinburgh U.P.
- Potz, Richard (2011), Islamic Law and the Transfer of European Law, EGO – European History Online, Mainz: Institute of European History, retrieved: 25 March 2021 (pdf).
- Schacht, Joseph (1964). An Introduction to Islamic Law. Oxford: Clarendon
External links
[edit]
- "Islamic law" – in The Oxford Dictionary of Islam, via Oxford Islamic Studies Online
- Sharia Law – information and misconceptions about sharia law
- "Sharia" by Knut S. Vikør – In The Oxford Encyclopedia of Islam and Politics, via Bridging Cultures, National Endowment for the Humanities & George Mason University
- "Law" by Norman Calder et al. – In The Oxford Encyclopedia of the Islamic World, via Oxford Islamic Studies
- Brunei implements sharia law – UNAA (United Nations)
- Sharia Law in the International Legal Sphere – Yale University
- "Private Arrangements: 'Recognizing Sharia' in Britain" – anthropologist John R. Bowen explains the working of Britain's sharia courts in a Boston Review article
- Division of Inheritance According to Qur'an (Archived 20 February 2015 at the Wayback Machine)
- Explanation of "The Reward of the Omnipotent" – manuscript in Arabic, from the late 19th or early 20th century about Sharia.
