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Sharia (Arabic: 'شريعة Šarīʿa; [ʃɑˈriːɑ], "way" or "path") refers to the "way" Muslims should live or the "path" they must follow. Sharia is derived from the sacred text of Islam (the Qur'an), and Traditions (Hadith) gathered from the life of the Islamic Prophet, Muhammad. There are different interpretations in some areas of Sharia, depending on the school of thought (Madh'hab), and the particular scholars (Ulema) involved. Traditionally, Islamic jurisprudence (Fiqh) interprets and refines Sharia by extending its principles to address new questions. Islamic judges (Qadi) apply the law, however modern application varies from country to country. Sharia deals with many aspects of life, including crime, politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.

Islamic law is now the most widely used religious law, and one of the three most common legal systems of the world alongside common law and civil law (Roman law).[1] During the Islamic Golden Age, classical Islamic law may have influenced the development of common law,[2] and also influenced the development of several civil law institutions.[3]

EtymologyEdit

The term Sharia itself derives from the verb "shara'a" (Arabic: شرع‎), which according to Abdul Mannan Omar's "Dictionary of the Holy Qur'an" connects to the idea of "system of divine law; way of belief and practice".[Qur'an 45:18] The phrase ‘Šarīʿat Allāh’ ('God’s Law" or "Law of God") is also used by Arabic Christians[4] and Jews to describe their own religious law, sometimes translating expressions such as Torat Elōhīm [תורת אלוהים] or ‘ho nómos toû theoû' (ὁ νόμος τοῦ θεοῦ) '’.

The word Sharia can be traced from the verbal Arabic noun “Shari’a” that appears in the Qur’an only once at 45:18. Moreover, its derivative form appears three times at 42:13, 42:21, and 5:51 verses. According to the modern definition, Sharia is the comprehensive body of Islamic laws that should regulate the public and private aspects of the lives of the Muslims. Sharia is not a single code of laws; rather, it consists of four sources that legal experts refer to. The first two sources are the Qur’an and the Sunnah, and the other two complementary sources are consensus (ijma) and analogy (qiyas). Moreover, some schools of thought accept additional sources as secondary sources where the first four primary sources allow.[5]

Definitions and descriptionsEdit

Sharia has been defined as

  • "Muslim or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and moral. The custom-based body of law based on the Quran and the religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are law, the latter distinguished by Islam and Muslims in their application, as Sharia or Sharia law."[6]
  • "a discussion on the duties of Muslims," —Hamilton Alexander Rosskeen Gibb[7]
  • "a long, diverse, complicated intellectual tradition," rather than a "well-defined set of specific rules and regulations that can be easily applied to life situations," —Hunt Janin and Andre Kahlmeyer[8]
  • "a shared opinion of the [Islamic] community, based on a literature that is extensive, but not necessarily coherent or authorized by any single body," —Knut S. Vikor[9]

The primary sources of Islamic law are the Qur'an and Sunnah. Certain Sharia laws are regarded as divinely ordained, concrete, and timeless for all relevant situations. It also has laws derived from principles established over time by Islamic lawyers.

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

The Sunni perspectiveEdit

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

The Shi'a perspectiveEdit

Shi'a Muslims strongly reject analogy (qiyas) as an easy way to innovations (bid'ah), and also reject consensus (ijma) as having any particular value in its own. During the period that the Sunni scholars developed those two tools, the Shi'a Imams were alive, and Shi'a view them as an extension of the Sunnah, so they view themselves as deriving their laws (fiqh) only from the Qur'an and Sunnah. A recurring theme in Shi'a jurisprudence is logic (mantiq),[10] something most Shi'a believe they mention, employ and value to a higher degree than most Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Qur'an and Sunnah.

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

Other perspectives Edit

Legal scholar L. Ali Khan claims that "the concept of Sharia has been thoroughly confused in legal and common literature. For some Muslims, Sharia consists of the Qur'an and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define Sharia as law based upon the Qur'an, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of Sharia lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Qur'an and the Sunnah. The Qur'an and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to dissipate confusion around the term Sharia."[11]

Classic Islamic lawEdit

The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[12] Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767-820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.[13]

A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.[2][3][14][15]

OriginsEdit

According to Muslims, Sharia Law is founded on the teachings of Allah and the acts and sayings of Muhammad as found in the Qur'an and the Sunnah.[16] However, Sharia was not fully developed at the time of Muhammad's death, but rather it evolved around the Muslim community or Ummah through which it would serve.

When Sharia began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born,[17] a sense of community did not exist. Life in the desert was nomadic and tribal, thus the only factor that tied people together into various tribes was through common ancestry.[16] However, the nature of Islam challenged that ideology and brought all those who professed their submission to Islam into the Ummah. Additionally, Islam was not just a religion but a way of life. Laws had to be instilled so the doctrines of Sharia took root. All who are Muslim are judged by Sharia[18] – regardless of the location or the culture.

Sharia was guided through its development by lifestyles of the tribes, which were initially absorbed into Islam. Thus, through the understandings of the tribe, Islamic law would be a law of the community – for the community by the community – even if initially proposed by an individual "for they could not form part of the tribal law unless and until they were generally accepted as such."[16] Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that "to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations."[16] So, while "each and every law must be rooted in either the Qur'an or the Sunnah,"[19] without contradiction, tribal life brought about a sense of participation. Such participation is further reinforced by Muhammad who stated, "My community will never agree in error".[19]

After the death of Muhammad, Sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) in which many decision making matters were brought to the attention of Muhammad's closest comrades for consultation.[17] In AD 662, during the reign of Muawiya b. Abu Sufyan ibn Harb, life ceased to be nomadic, and undertook an urban transformation that created matters not originally covered by Islamic law.[17] Every change of Islamic society has played an active role in developing Sharia, which branches out into Fiqh and Qanun respectively.

Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. The legal schools followed by most Sunni Muslims were Hanafi, Hanbali, Maliki or Shafi`i. Most Shia Muslims followed the Ja'fari school of thought.[20]

Comparisons with common lawEdit

The methodology of legal precedent and reasoning by analogy (qiyas) used in Islamic law was similar to that of the common law legal system.[14] According to Justice Gamal Moursi Badr, Islamic law is like common law in that it "is not a written law" and the "provisions of Islamic law are to be sought first and foremost in the teachings of the authoritative jurists" (ulema), hence Islamic law may "be called a lawyer's law if common law is a judge's law."[3]

English common lawEdit

Since the publication of legal scholar John Makdisi's The Islamic Origins of the Common Law in the North Carolina Law Review in 1999,[2] there has been controversy over whether English common law was inspired by Islamic law.[21][22] It has been suggested by several scholars such as Professor John Makdisi, Jamila Hussain and Lawrence Rosen[23] that several fundamental English common law institutions may have been derived or adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily (see Arab-Norman culture), and "through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England",[23] as well as by Crusaders during the Crusades. The connection with Norman law in Normandy may be real, but it should be remembered that common law owes a great deal to Anglo-Saxon traditions and forms, and in its current form represents an interplay between the two systems.

According John A. Makdisi, many concepts of English common law, including juries at least partly, derive from Islamic law. In the same period as William the Conquerer conquered England, Norman adventurers led by Robert Guiscard had taken Sicily, previously under the Arab Fatimid Caliphate. Thus, according to Makdisi, English law became influenced by the Islamic law used in Sicily under the Fatimids, including the use of the twelve man jury. Makdisi points to Henry II's laws as having been influenced through people such as Thomas Brown, a member of Henry's government who had previously served in the Sicilian government.[24]

According to Makdisi, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif" in classical Maliki jurisprudence.[2] The Islamic Hawala institution also influenced the development of the agency institution in English common law.[3] Other English legal institutions such as "the scholastic method, the license to teach," the "law schools known as Inns of Court in England and Madrasas in Islam" may have also originated from Islamic law. These influences have led Makdisi to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[2]

The Waqf in Islamic law, which developed during the 7th-9th centuries, bears a notable resemblance to the trusts in the English trust law.[25] For example, every Waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries.[26] Under both a Waqf and a trust, "property is reserved, and its usufruct appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus becomes inalienable; estates for life in favor of successive beneficiaries cannot be created" and "without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees or mutawillis."[27] The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East.[28][29] Dr. Paul Brand also notes parallels between the Waqf and the trusts used to establish Merton College by Walter de Merton, who had connections with the Knights Templar. Brand also points out, however, that the Knights Templar were primarily concerned with fighting the Muslims rather than learning from them, making it less likely that they had knowledge of Muslim legal institutions.[21] The introduction of the trust, or "use" was primarily motivated by the need to avoid medieval inheritance taxes. By transferring legal title to a third party, there was no need to pay feudal dues on the death of the father. In those times, it was common for an underage child to lose many of his rights to his feudal overlord if he succeeded before he came of age.

The precursor to the English jury trial was the Lafif trial in classical Maliki jurisprudence, which was developed between the 8th and 11th centuries in North Africa and Islamic Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters that "...they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff." The only characteristic of the English jury that the Islamic Lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to Professor John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus likely that the concept of the Lafif may have been introduced to England by the Normans and then evolved into the modern English jury.[2] However, the hearing of trials before a body of citizens may have existed in courts before the Norman conquest.

The precursor to the English assize of novel disseisin was the Islamic Istihqaq, an action "for the recovery of usurped land", in contrast to the previous Roman law, which "emphasized possession in resolving such disputes." The "assize of novel disseisin broke with this tradition and emphasized ownership, as is found in the Islamic law of Istihqaq."[30] Islamic law also introduced the notion of allowing an accused suspect or defendant to have an agent or lawyer, known as a wakil, handle his/her defense. This was in contrast to early English common law, which "used lawyers to prosecute but the accused were left to handle their defense themselves." The English Parliament did not allow those accused of treason the right to retain lawyers until 1695, and for those accused of other felonies until 1836.[31]

Islamic jurists formulated early contract laws that introduced formal rationality, legal rationality, legal logic (see Logic in Islamic philosophy) and legal reasoning in the use of contracts.[32] Islamic jurists also introduced the concepts of recission (Iqalah), frustration of purpose (istihalah al-tanfidh or "impossibility of performance"), Act of God (Afat Samawiyah or "Misfortune from Heaven") and force majeure in the law of contracts.[33] However, recission, frustration and other core concepts in the law of contract are relatively recent introductions into the Law of England, dating back to the Victorian period. Early case law indicates that it was impossible to rescind a contract for frustration even where performance became impossible.

Other possible influences of Islamic law on English common law include the concepts of a passive judge, impartial judge, res iudicata, the judge as a blank slate, individual self-definition, justice rather than morality, the law above the state, individualism, freedom of contract, privilege against self-incrimination, fairness over truth, individual autonomy, untrained and transitory decision making, overlap in testimonial and adjudicative tasks, appeal, dissent, day in court, prosecution for perjury, oral testimony, and the judge as a moderator, supervisor, announcer and enforcer rather than an adjudicator.[34]

Law of the United StatesEdit

While there are differences between the legal sources, the Islamic Qur'an and the United States Constitution, similarities between Islamic law and the common law of the United States have been noted, particularly in regards to interpretation of Constitutional law. According to Asifa Quraishi, the methods used in the judicial interpretation of the Constitution are similar to that of the Qur'an, including the methods of "plain meaning literalism, historical understanding "originalism," and reference to underlying purpose and spirit."[35] Sameer S. Vohra says the United States Constitution is similar to the Qur'an in that the Constitution is "the supreme law of the land and the basis from which the laws of the legislature originate."[36] Vohra further notes that the legislature is similar to the Sunnah in that the "legislature takes the framework of the Constitution and makes directives that involve the specific day-to-day situations of its citizens."[36] He also writes that the judicial decision-making process is similar to the qiyas and ijma methods, in that judicial decision-making is "a means by which the law is applied to individual disputes," that "words of the Constitution or of statutes do not specifically address all the possible situations to which they may apply," and that, "at times, it requires the judiciary to either use the consensus of previous decisions or reason by analogy to find the correct principle to resolve the dispute."[37]

Azizah Y. al-Hibri argues that American constitutional law may have possibly borrowed certain concepts from Islamic constitutional law.[38] Al-Hibri compares the American constitution to the Qur'an, Sunnah and Constitution of Medina, such as the establishment of a federal government, the declaration of freedom of religion, the abolishment of guilt by association, the right to privacy, and matters such as common defense and peacemaking.[39] Al-Hibri notes that while it is uncertain whether or not the American Founding Fathers had access to the Constitution of Medina, it is certain that they had access to the Qur'an (which protects some of the rights mentioned in the Fourth Amendment to the United States Constitution),[40] that Thomas Jefferson was familiar with Orientalist writings on Islam (including those of Volney) in addition to owning a copy of the Qur'an, that Jefferson spoke of avoiding the mistakes of previous civilizations, and that there were African American Muslim slaves from an Islamic legal background.[41] However, Thomas Jefferson was not involved at all in the Constitutional drafting, as he was the United States Minister to France from 1785 to 1789.

The earliest known lawsuits may also date back to Islamic law. A hadith tradition reports that the Caliph Uthman ibn Affan (580-656) attempted to sue a Jewish subject for recovery of a suit of armour, but his case was unsuccessful due to a lack of competent witnesses.[42] The concept of a lawsuit was also described in the Ethics of the Physician by Ishaq bin Ali al-Rahwi (854–931) of al-Raha, Syria, as part of an early medical peer review process, where the notes of a practicing Islamic physician were reviewed by peers and he/she could be sued by a maltreated patient if the reviews were negative.[43]

The earliest known prohibition of illegal drugs occurred under Islamic law, which prohibited the use of Hashish, a preparation of cannabis, as a recreational drug. Classical jurists in medieval Islamic jurisprudence, however, accepted the use of the Hashish drug for medicinal and therapeutic purposes, and agreed that its "medical use, even if it leads to mental derangement, remains exempt" from punishment. In the 14th century, the Islamic jurist Az-Zarkashi spoke of "the permissibility of its use for medical purposes if it is established that it is beneficial."[44] According to Mary Lynn Mathre, with "this legal distinction between the intoxicant and the medical uses of cannabis, medieval Muslim theologians were far ahead of present-day American law."[45]

Other comparisonsEdit

Other parallels to common law concepts in property law were found in classical Islamic property law, including the concepts of leasehold (including duty to take and keep in possession and holdover tenancy), joint ownership (including partition, pledge, bailment, lost property, license and trespass), acquisition (including intestate succession), duress (Ikrah), transfer by sale (including contract formation, meeting of the minds, declaration, and risk of loss), transfer by gift, rights and restrictions on transfers (including restraint on alienation, appurtenance, fixture, preemption, mortgage and water rights), will (including entitlement to shares, revocation, ademption, lapse, abatement and ambiguity), attacks on ownership (including concepts of theft, robbery, usurpation, nuisance, and defense of necessity), and causation (including remote consequences, intervening human cause, concurrent cause and uncertain cause). Many of these concepts were summarized in Islamic juristic texts, including the Hidayah by the Hanafi jurist Qazi Halb Burhan-ud-din, the Minhaj al-Talibin by the Shafi`i jurist Yahya ibn Sharaf al-Nawawi, the Mukhtasar by the Maliki jurist Khalil ibn Ishaq al-Jundi, the Fatawa-e-Alamgiri by Hanafi jurists, and the Kasani.[15]

While some see the Islamic concept of Istihsan as being equivalent to the concept of equity in English law, others see it as being equivalent to the "reasoned distinction of precedent" in American law, in which case Istihsan may be referred to as the "reasoned distinction of qiyas (reasoning by analogy)".[46]

Other parallels to common law concepts are found in classical Islamic law and jurisprudence, including advocacy,[47] ratio decidendi (illah),[48] arbitrary decision-making, legal opinion, discretion,[49] public policy (Istislah and Maslaha),[15][49] freedom of religion, equal protection, reasoning by analogy and distinction, and consensus and precedent.[15]

Comparisons with civil lawEdit

One of the institutions developed by classical Islamic jurists that influenced civil law was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the Aval in French civil law and the Avallo in Italian law.[3] The "European commenda" limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.[2]

The transfer of debt, which was not permissible under Roman law but is practiced in modern civil law, may also have origins in Islamic law.[50] The concept of an agency was also an "institution unknown to Roman law", where it was not possible for an individual to "conclude a binding contract on behalf of another as his agent." The concept of an agency was introduced by Islamic jurists, and thus the civil law conception of agency may also have origins in Islamic law.[51]

International lawEdit

See also: Islamic Jurisprudence: An International Perspective, Islamic economics in the world, Islamic military jurisprudence, and Prisoners of war in Islam

The first treatise on international law (Siyar in Arabic) was the Introduction to the Law of Nations written at the end of the 8th century by Muhammad al-Shaybani[52] (d. 804), an Islamic jurist of the Hanafi school,[53] eight centuries before Hugo Grotius wrote the first European treatise on the subject. Al-Shaybani wrote a second more advanced treatise on the subject, and other jurists soon followed with a number of other multi-volume treatises written on international law during the Islamic Golden Age.[52] They dealt with both public international law as well as private international law.[54]

These early Islamic legal treatises covered the application of Islamic ethics, Islamic economic jurisprudence and Islamic military jurisprudence to international law,[53] and were concerned with a number of modern international law topics, including the law of treaties; the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatant civilians; contracts across the lines of battle; the use of poisonous weapons; and devastation of enemy territory.[52] The Umayyad and Abbasid Caliphs were also in continuous diplomatic negotiations with the Byzantine Empire on matters such as peace treaties, the exchange of prisoners of war, and payment of ransoms and tributes.[55]

After Sultan al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:[52]

"Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power."[56]

The Islamic legal principles of international law were largely based on Qur'an and the Sunnah of Muhammad, who gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's successor and close companion, Abu Bakr, in the form of ten rules for the Muslim army:[57]

Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those that are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.[57]

Islamic private international law arose as a result of the vast Muslim conquests and maritime explorations, giving rise to various conflicts of laws. A will, for example, was "not enforced even if its provisions accorded with Islamic law if it violated the law of the testator." Islamic jurists also developed elaborate rules for private international law regarding issues such as contracts and property, family relations and child custody, legal procedure and jurisdiction, religious conversion, and the return of aliens to an enemy country from the Islamic world. Democratic religious pluralism also existed in classical Islamic law. The religious laws and courts of other religions, including Christianity, Judaism and Hinduism, were usually accommodated within the Islamic legal framework, as seen in the early Caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system.[55][58] In medieval Islamic societies, the qadi (Islamic judges) usually could not interfere in the matters of non-Muslims unless the parties voluntarily choose to be judged according to Islamic law. The dhimmi communities living in Islamic states usually had their own laws independent from the Sharia law, such as the Jews who had their own Halakha courts.[59] Non-Muslims were also allowed to engage in religious practices that was usually forbidden by Islamic law, such as the consumption of alcohol and pork, and in the case of Zoroastrians, they were allowed to engage in incestuous "self-marriage" where a man could marry his mother, sister or daughter. According to Ibn Qayyim (1292-1350), non-Muslims had the right to engage in such religious practices even if it was repugnant to Muslims, under the conditions that such cases not be presented to Islamic Sharia courts and that these religious minorities believed that the practice in question was permissable according to their religion.[60]

Islamic law also introduced "two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith", which was a precursor to the concept of pacta sunt servanda in civil law and international law. Islamic law also "introduced it to international relations, making possible the systematic development of conventional law, which became a partial substitute for custom."[61]

Islamic law also made "major contributions" to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways.[62][63] These included Muslim sailors being "paid a fixed wage "in advance" with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions" in which contracts should specify "a known fee for a known duration", in contrast to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea venture's profit, with shares allotted by rank, only after a voyage's successful conclusion." Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the "high seas", and they also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo." Islamic law also "departed from Justinian's Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was also a precursor to the European commenda limited partnership. The "Islamic influence on the development of an international law of the sea" can thus be discerned alongside that of the Roman influence.[62]

There is evidence that early Islamic international law influenced the development of Western international law, through various routes such as the Crusades, Norman conquest of the Emirate of Sicily, and Reconquista of al-Andalus.[61] In particular, the Spanish jurist Francisco de Vitoria, and his successor Hugo Grotius, may have been influenced by Islamic international law through earlier Islamic-influenced writings such as the 1263 work Siete Partidas of Alfonso X, which was regarded as a "monument of legal science" in Europe at the time and was influenced by the Islamic legal treatise Villiyet written in Islamic Spain.[54][61]

Legal educationEdit

Main articles: Madrasah and Ijazah

Madrasahs were the first law schools, and it is likely that the "law schools known as Inns of Court in England" may have been derived from the Madrasahs, which taught Islamic law and jurisprudence.[2][64]

The origins of the Ijazah dates back to the ijazat attadris wa 'l-ifttd ("license to teach and issue legal opinions") in the medieval Islamic legal education system, which was equivalent to the Doctor of Laws qualification and was developed during the 9th century after the formation of the Madh'hab legal schools. To obtain a doctorate, a student "had to study in a guild school of law, usually four years for the basic undergraduate course" and ten or more years for a post-graduate course. The "doctorate was obtained after an oral examination to determine the originality of the candidate's theses," and to test the student's "ability to defend them against all objections, in disputations set up for the purpose," which were scholarly exercises practiced throughout the student's "career as a graduate student of law." After students completed their post-graduate education, they were awarded doctorates giving them the status of faqih (meaning "master of law"), mufti (meaning "professor of legal opinions") and mudarris (meaning "teacher"), which were later translated into Latin as magister, professor and doctor respectively.[64]

Democratic participationEdit

Main article: Islam and democracy

In the early Islamic caliphate, the head of state, the caliph, had a position based on the notion of a successor to Muhammad's political authority, who, according to Sunnis, were ideally elected by the people or their representatives.[65] After the Rashidun Caliphs, later Caliphates during the Islamic Golden Age had a lesser degree of democratic participation, but since "no one was superior to anyone else except on the basis of piety and virtue" in Islam, and following the example of Muhammad, later Islamic rulers often held public consultations with the people in their affairs.[58][66]

The power of the Caliph (or later, the Sultan) was restricted by the scholarly class, the ulema, a group regarded as the guardians of the law. Since the law came from the legal scholars, this prevented the Caliph from dictating legal results. Laws were decided based on the ijma (consensus) of the Ummah (community), which was most often represented by the legal scholars.[67] To qualify as a legal scholar required a doctorate known as the ijazat attadris wa 'l-ifttd ("license to teach and issue legal opinions") from a Madrasah.[64] In many ways, classical Islamic law functioned like a constitutional law.[67]

Human rightsEdit

Main article: Islamic ethics
See also: Early social changes under Islam, Islamic Jurisprudence: An International Perspective, and Women in Islam

In the field of human rights, early Islamic jurists introduced a number of advanced legal concepts before the 12th century that anticipated similar modern concepts in the field.[68] These included the notions of the charitable trust and the trusteeship of property; the notion of brotherhood and social solidarity; the notions of human dignity and the dignity of labour; the notion of an ideal law; the condemnation of antisocial behavior; the presumption of innocence; the notion of "bidding unto good" (assistance to those in distress); and the notions of sharing, caring, universalism, fair industrial relations, fair contract, commercial integrity, freedom from usury, women's rights, privacy, abuse of rights, juristic personality, individual freedom, equality before the law, legal representation, non-retroactivity, supremacy of the law, judicial independence, judicial impartiality, limited sovereignty, tolerance, and democratic participation. Many of these concepts were adopted in medieval Europe through contacts with Islamic Spain and the Emirate of Sicily, and through the Crusades and the Latin translations of the 12th century.[68]

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

"[T]he manner in which an act was qualified as morally good or bad in the spiritual domain of Islamic religion was quite different from the manner in which that same act was qualified as legally valid or invalid in the temporal domain of Islamic law. Islamic law was secular, not canonical... Thus, it was a system focused on ensuring that an individual received justice, not that one be a good person."[69]

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

"Those Eastern thinkers of the ninth century laid down, on the basis of their theology, the principle of the Rights of Man, in those very terms, comprehending the rights of individual liberty, and of inviolability of person and property; described the supreme power in Islam, or Califate, as based on a contract, implying conditions of capacity and performance, and subject to cancellation if the conditions under the contract were not fulfilled; elaborated a Law of War of which the humane, chivalrous prescriptions would have put to the blush certain belligerents in the Great War; expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted."[70]

The principle of equality before the law was introduced by Sharia law. This principle of equality before the law was later adopted by Western laws from the Islamic Sharia law.[71]

Inalienable rightsEdit

The concept of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights inherant in their persons as human beings.[66]" Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source no ruler can question or alter.[66]" Islamic jurists also anticipated the concept of the rule of law, the equal subjection of all classes to the ordinary law of the land, where no person is above the law and where officials and private citizens are under a duty to obey the same law. A qadi (Islamic judge) was also not allowed to discriminate on the grounds of religion, race, colour, kinship or prejudice. There were also a number of cases where caliphs had to appear before judges as they prepared to take their verdict.[72] There is evidence that John Locke's formulation of inalienable rights and conditional rulership, which were present in Islamic law centuries earlier, may have also been influenced by Islamic law, through his attendance of lectures given by Edward Pococke, a professor of Islamic studies.[73]

In addition, early Islamic jurists, from the 8th century to the 16th century, made a distinction between the huquq Allah ("rights of God") and huquq al-ibad ("rights of individuals"). The former were based on the rights established in the Qur'an and Sunnah, while the latter conceptually resembled natural rights. This arose from the Istislah method, developed to deal with new issues that find no clear answer in the sacred religious texts. Many early Islamic jurists thus resorted to "background values concerning inherent qualities of the individual" in order to deal with these issues, incorporating "naturalistic reasoning in their juridical analyses." They applied the "rights of God" and "rights of individuals" as "an interpretive mechanism to frame their naturalistic assumptions and apply them in legal analysis to create and distribute rights, duties, and public commitments."[74]

Economic and social rightsEdit

Early Islamic law recognized two sets of human rights. In addition to the category of civil rights and political rights (covered in the Universal Declaration of Human Rights), Islamic law also recognized an additional category: social, economic and cultural rights. This latter category was not recognized in the Western legal tradition until the International Covenant on Economic, Social and Cultural Rights in 1966.[75] The right of privacy, which was not recognized in Western legal traditions until modern times, was recognized in Islamic law since the beginning of Islam.[56]

Female rightsEdit

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

Until the 19th century, Islamic law granted women some legal rights that they did not have under Western legal systems until the 19th and 20th centuries.[76] For example, French married women, unlike their Muslim sisters, suffered from restrictions on their legal capacity that were removed only in 1965.[77] Noah Feldman, a Harvard University law professor, notes:

As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.[67]

Women also had the right to challenge or oppose any laws proposed by a Caliph. In the 7th century, when the Caliph Umar proposed a change in Islamic marital jurisprudence at a mosque, he was challenged by an old unknown woman who stated: "You shall not deprive us [women] of what God gave us." The woman cited a passage from the Qur'an as support and thus Umar had no choice but to declare: "The woman is right and the Khalifah is wrong."[78] At the time of the Prophet Muhammad, he often sought advice from women in regards to political matters, and a delegation of Arab women once "extended the bay'ah to him," thus establishing "the right of Muslim women to participate in the political process."[79]

Status of women under Islamic law since the 19th century

Of course, since this point in history the aforementioned exploration of freedom is no longer true — that is to say that whilst it is arguable that women had more extensive legal rights under Islamic law than they did under Western legal systems in the past, it is no longer true today.[80]

Welfare and pensionEdit

Main article: Bayt al-mal

The concepts of welfare and pension were introduced in early Islamic law as forms of Zakat (charity), one of the Five Pillars of Islam, since the time of the Abbasid caliph Al-Mansur in the 8th century. The taxes (including Zakat and Jizya) collected in the treasury of an Islamic government was used to provide income for the needy, including the poor, elderly, orphans, widows, and the disabled. According to the Islamic jurist Al-Ghazali (Algazel, 1058–1111), the government was also expected to store up food supplies in every region in case a disaster or famine occurs. The caliphate was thus one of the earliest welfare states.[81][82]

Freedom of speechEdit

Main article: Islamic ethics

During the Islamic Golden Age, there was an early emphasis on freedom of speech in the Islamic caliphate. This was first declared by the Caliph Umar in the 7th century.[61] Later during the Abbasid period, freedom of speech was also declared by al-Hashimi, a cousin of caliph Al-Ma'mun (786–833), in the following letter to a religious opponent:[83]

"Bring forward all the arguments you wish and say whatever you please and speak your mind freely. Now that you are safe and free to say whatever you please appoint some arbitrator who will impartially judge between us and lean only towards the truth and be free from the empery of passion, and that arbitrator shall be Reason, whereby God makes us responsible for our own rewards and punishments. Herein I have dealt justly with you and have given you full security and am ready to accept whatever decision Reason may give for me or against me. For "There is no compulsion in religion" (Qur'an 2:256) and I have only invited you to accept our faith willingly and of your own accord and have pointed out the hideousness of your present belief. Peace be with you and the blessings of God!"[83]

According to George Makdisi and Hugh Goddard, "the idea of academic freedom" in universities was "modelled on Islamic custom" as practiced in the medieval Madrasah system from the 9th century.[84]

Peace and justiceEdit

As in other Abrahamic religions, peace is a basic concept of Islam. The Arabic term "Islam" itself (إسلام) is usually translated as "submission"; submission of desires to the will of God. It comes from the term aslama, which means "to surrender" or "resign oneself".[85] The Arabic word salaam (سلام) ("peace") has the same root as the word Islam[86]. One Islamic interpretation is that individual personal peace is attained by utterly submitting to Allah. The greeting "As-Salamu Alaykum", favoured by Muslims, has the literal meaning "Peace be with you"[87]. Muhammad is reported to have said once, "Mankind are the dependents, or family of God, and the most beloved of them to God are those who are the most excellent to His dependents." "Not one of you believes until he loves for his brother what he loves for himself." Great Muslim scholars of prophetic tradition such as Ibn Hajar al-Asqalani and Yahya ibn Sharaf al-Nawawi have said[88] that the words 'his brother' mean any person irrespective of faith.

Religious freedomEdit

Democratic religious pluralism and freedom of religion existed in classical Islamic Sharia law, as the religious laws and courts of other religions, including Christianity, Judaism and Hinduism, were usually accommodated within the Islamic legal framework, as seen in the early Caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system.[55][58] In medieval Islamic societies, the qadi (Islamic judges) usually could not interfere in the matters of non-Muslims unless the parties voluntarily choose to be judged according to Islamic law, thus the dhimmi communities living in Islamic states usually had their own laws independent from the Sharia law, such as the Jews who would have their own Halakha courts.[89]

Dhimmis were allowed to operate their own courts following their own legal systems in cases that did not involve other religious groups, or capital offences or threats to public order. However, in the Ottoman Empire of the 18th and 19th centuries dhimmis frequently attended the Muslim courts. This was not only when their appearance was compulsory (for example in cases brought against them by Muslims) but also in order to record property and business transactions within their own communities. Cases were taken out against Muslims, against other dhimmis and even against members of the dhimmi’s own family. Dhimmis often took cases relating to marriages, divorces and inheritance cases to the Muslim courts so that these cases would be decided under shari’a law. Oaths sworn by dhimmis in the Muslim courts were sometimes the same as the oaths taken by Muslims, sometimes tailored to the dhimmis’ beliefs.[90]

The famous Maliki jurist Shihab al-Din al-Qarafi (1228–1285) wrote the following on the rights of non-Muslims: [1]

The covenant of protection imposes upon us certain obligations toward the ahl al-dhimmah. They are our neighbours, under our shelter and protection upon the guarantee of Allah, His Messenger (Allah bless him and give him peace), and the religion of Islam. Whoever violates these obligations against any one of them by so much as an abusive word, by slandering his reputation, or by doing him some injury or assisting in it, has breached the guarantee of Allah, His Messenger (Allah bless him and give him peace), and the religion of Islam.

Religious minorities were also free to do whatever they wished in their own homes, provided they did not publically engage in illicit sexual activity in ways that could threaten public morals.[91]

Influence in Europe
See also: Islamic contributions to Medieval Europe and Islamic Civilization during the European Renaissance

The concept of religious tolerance in Sharia law had a significant influence on the development of religious tolerance in Europe during the early modern period, when European reformists frequently referred to the Ottoman Empire as an ideal model of religious tolerance for Europe to follow. For example, Patriarch Michael III of Anchialos stated in the 12th century:[71]

Let the Muslim be my master in outward things rather than the Latin dominate me in matters of the spirit. For if I am subject to the Muslim, at least he will not force me to share his faith. But if I have to be under Frankish rule and united with the Roman Church, I may have to separate myself from my God.

Non-Muslims were also allowed to openly preach their religions. For example, Catholic authorities in 1548 requested the Ottoman sultan’s representative in Tolna (Hungary) to execute or expel the Hungarian pastor Imre Szigedi for his Protestant preaching. In response, the chief intendant of the Pasha of Buda denied their request but instead issued an edict of toleration:[71]

Preachers of the faith invented by Luther should be allowed to preach the Gospel everywhere to everybody, whoever wants to hear, freely and without fear, and that all Hungarians and Slavs (who indeed wish to do so) should be able to listen to and recieve the word of God without any danger. Because this is the true Christian faith and religion.

This edict from the Pasha of Buda had a significant influence in Europe. For example, it inspired the Edict of Torda in 1568. Emmerich Zigerius of Tolna, a Protestant preacher in the Balkans, wrote about the Pasha’s edict to his friend Matthias Flacius in Germany. Flacius published the letter in 1550 to confront the German rulers with the contrast between Catholic oppression of Protestants and the generosity of the Turks towards ‘the true religion’. Philipp Melanchthon, Martin Luther’s right hand man, cited the tolerance of the Turks to rebuke Cardinal Sadoleto for his intolerance towards Protestants. Martin Luther himself stated:[71]

our tyrants capture us, force us, drive us out, haunt us, burn us and drown us, as the Pope is much worse in this regard, than the Turk.

In Britain, the example of the Ottoman Empire to promote religious tolerance was employed by authors such as Walter Raleigh, Henry Burton, [[Roger Williams]], Charles Blackwood, Edward Bagshaw, Quakers like George Fox, and John Locke, who was to become an influence on the American constitution.[71]

Slavery and emancipationEdit

Main article: Islam and slavery

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

Sharia and non-MuslimsEdit

Main article: Dhimmi

Sharia attributes different legal rights to different groups. Sharia distinguishes between men and women, as well as between Muslims, "people of the Book" - Jews and Christians. Some scholars have included the religions of Zoroastrianism and Hinduism.

Under Sharia law non-Muslims must pay tax called Jizya if they want to live safely in Muslim states, otherwise the state refuses to protect them, even though it protects the Muslim citizens.

Under Sharia a non-Muslim is worth half that of a Muslim (see Diyya) under certain circumstances; however, the dominant school of thought—the Hanafi school—is of the opinion that a non-Muslim is equal to a Muslim in worth in terms of Diyya.

QanunEdit

After the fall of the Abbasids in 1258, a practice known to the Turks and Mongols transformed itself into Qanun, which gave power to caliphs, governors, and sultans alike to "make their own regulations for activities not addressed by the sharia."[19] The Qanun began to unfold as early as Umar I (586-644 CE).[19] Many of the regulations covered by Qanun were based on financial matters or tax systems adapted through the law and regulations of those territories Islam conquered.[19] Qanun in Arabic means law or rules.

Modern Islamic lawEdit

File:Madhhab Map2.png

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

  • Secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines.
  • Traditionalists believe that the law of the state should be based on the traditional legal schools. However, traditional legal views are considered unacceptable by some modern Muslims, especially in areas like women's rights or slavery.[92]
  • Reformers believe that new Islamic legal theories can produce modernized Islamic law[93] and lead to acceptable opinions in areas such as women's rights.[94] However, traditionalists believe that any departure from the legal teachings of the Qur'an as explained by the Prophet Muhammad and put into practice by him is an alien concept that cannot properly be attributed to "Islam".

BackgroundEdit

According to Noah Feldman, a law professor at Harvard University, the legal scholars and jurists who once upheld the rule of law were replaced by a law governed by the state due to the codification of Sharia by the Ottoman Empire in the early 19th century:[67]

How the scholars lost their exalted status as keepers of the law is a complex story, but it can be summed up in the adage that partial reforms are sometimes worse than none at all. In the early 19th century, the Ottoman empire responded to military setbacks with an internal reform movement. The most important reform was the attempt to codify Shariah. This Westernizing process, foreign to the Islamic legal tradition, sought to transform Shariah from a body of doctrines and principles to be discovered by the human efforts of the scholars into a set of rules that could be looked up in a book.
Once the law existed in codified form, however, the law itself was able to replace the scholars as the source of authority. Codification took from the scholars their all-important claim to have the final say over the content of the law and transferred that power to the state.

Contemporary practiceEdit

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

In September 2008, certain newspapers in the United Kingdom sensationally alleged that the government had "quietly sanctioned" the recognition of Sharia courts. However, this is not really a submission to Sharia law but applies to situations where both sides in a legal dispute freely choose a Sharia court as a binding arbitrator rather than taking a matter before the official courts. The decision does not break new ground: the decisions of similar Jewish beth din court arbitrations have been recognized in England for over 100 years.[95] Neither party can be forced into arbitration by a Sharia or a Jewish court.

Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and the Mutaween (religious police) assert social compliance. Laws derived from Sharia are also applied in Afghanistan, Libya and Sudan. Sharia law is officially recognised by the justice system in Israel in matters of personal status of Muslims (e.g. marriage, divorce, guardianship.) Judges' salaries are paid by the state.[96] Some states in northern Nigeria have reintroduced Sharia courts.[97] In practice the new Sharia courts in Nigeria have most often meant the re-introduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery.[98]

Many, including the European Court of Human Rights, consider the punishments prescribed by Sharia in some countries to be barbaric and cruel. Islamic scholars argue that, if implemented properly, the punishments serve as a deterrent to crime.[99] In international media, practices by countries applying Islamic law have fallen under considerable criticism at times. This is particularly the case when the sentence carried out is seen to greatly tilt away from established standards of international human rights. This is true for the application of the death penalty for the crimes of adultery, blasphemy, apostasy and homosexuality, amputations for the crime of theft, and flogging for fornication or public intoxication.[100]

A bill proposed by lawmakers in the Indonesian province of Aceh would implement Sharia law for all non-Muslims, the armed forces and law enforcement officers, a local police official has announced. The news comes two months after the Deutsche Presse-Agentur warned of "Taliban-style Islamic police terrorizing Indonesia's Aceh".[101][102][103]

The interpretation of Islamic jurisprudence varies in different modern nations. In the English-speaking world and in Islamic countries with a history of British rule, for example, Islamic finance has been relatively successful due to the common-law nature of Islamic jurisprudence being compatible with English common law. On the other hand, Islamic finance has been relatively unsuccessful in certain regimes such as Iran, Pakistan, and Sudan, which, according to Lawrence Rosen and Mahmoud A. El-Gamal, have diverged from the common-law nature of Islamic jurisprudence and instead interpret "a common-law variant as if it were a civil law system."[14] For example, modern Iranian law is based on an "Islamic civil code" influenced by the Napoleonic code and German civil code.[104] According to the Archbishop of Canterbury Rowan Williams, "In some of the ways it has been codified and practised across the world, it has been appalling and applied to women in places like Saudi Arabia, it is grim."[105]

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

"It must be understood that when we claim that Islam has a satisfactory solution for every problem in any situation in all times to come, we do not mean that the Holy Quran and Sunna of the Holy Prophet or the rulings of Islamic scholars provide a specific answer to each and every minute detail of our socioeconomic life. What we mean is that the Holy Quran and the Holy Sunna of the Prophet have laid down the broad principles in the light of which the scholars of every time have deduced specific answers to the new situations arising in their age. Therefore, to reach a definite answer about a new situation the scholars of Sharia must play an important role. They must analyze every question in light of the principles laid down by the Holy Quran and Sunna as well as in the light of the standards set by earlier jurists enumerated in the books of Islamic jurisprudence. This exercise is called Istinbat or Ijtihad. ... [T]he ongoing process of Istinbat keeps injecting new ideas, concepts and rulings into the heritage of Islamic jurisprudence."[106]

Another significant difference between the classical and modern systems of Islamic law is that classical Islamic law was "independent of any state mechanism", while modern Islamic law is "controlled by the state because the state often controls the legal scholars." According to Sameer S. Vohra, "This control mechanism results in a lack of the sort of pluralism that once made the Islamic legal system as innovative and fluid as its United States counterpart."[36]

Contemporary issuesEdit

Democracy and human rightsEdit

Several official institutions in democratic countries, such as the European Court of Human Rights, argue that Sharia is incompatible with a democratic state. These incompatibilities have been clarified in several legal disputes.

In 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party on the grounds that the "rules of sharia", which Refah sought to introduce, "were incompatible with the democratic regime," stating that "Democracy is the antithesis of sharia." On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".[107][108][109] Refah's Sharia based notion of a "plurality of legal systems, grounded on religion" was ruled to contravene the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was determined that it would "do away with the State's role as the guarantor of individual rights and freedoms" and "infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy". It was further ruled that, according to Christian Moe:

"[T]he Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. [...] It is difficult to declare one's respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts."[110]

On the other side, legal scholar L. Ali Khan concludes "that constitutional orders founded on the principles of Sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall".[111][112] However, Christian Pippan argues, that this contradicts the political reality in most Islamic states. "While constitutional arrangements to ensure that political authority is exercised within the boundaries of Sharia vary greatly among those nations",[113] most existing models of political Islam have so far grossly failed to accept any meaningful political competition of the kind that Khan himself has identified as essential for even a limited conception of democracy. Khan, writes Pippan, dismisses verdicts as from the European Court of Human Rights or the Turkish Constitutional Court "as an expression of purely national or regional preferences."[114]

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

Freedom of speechEdit

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

Sharia allows freedom of speech in a broad sense, granting people the right to talk. However, Sharia does not allow freedom of speech that results in the harm of others unless there is a legal dispute, a public benefit, or a proven right to complaint.

Qadi 'Iyad ibn Musa al-Yahsubi argues that Sharia does not allow freedom of speech in such matters as criticism of Muhammad. Such criticism is blasphemy and punishable by death. He writes:

"The Qur'an says that Allah curses the one who harms the Prophet in this world and He connected harm of Himself to harm of the Prophet. There is no dispute that anyone who curses Allah is killed and that his curse demands that he be categorized as an unbeliever. The Judgment of the unbeliever is that he is killed. [...] There is a difference between ... harming Allah and His Messenger and harming the believers. Injuring the believers, short of murder, incurs beating and exemplary punishment. The judgment against those who harm Allah and His Prophet is more severe – the death penalty."[115]

HomosexualityEdit

Homosexual activity is illicit under Sharia; however, the prescribed penalties differ from one school of jurisprudence to another. For example, these countries may allow the death penalty for sodomy and homosexual activities: Iran[116], Mauritania[117], Nigeria[118], Saudi Arabia[119], Somalia[120], Sudan, United Arab Emirates, and Yemen. In contrast in Indonesia (outside of Aceh province[121]) homosexuality and sodomy are legal.[122]

WomenEdit

Main article: Women in Islam

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

Islam has no clergy, but women do not traditionally become Imams or lead prayer. In practice, it is much more common for men to be scholars than women. Early Muslim scholars such as Abū Ḥanīfa and Muhammad ibn Jarir al-Tabari held that there is nothing wrong with women holding a post as responsible as that of judge. Islam does not prohibit women from working, as it says "Treat your women well and be kind to them for they are your partners and committed helpers."[123] Married women may seek employment although it is often thought in patriarchal societies that the woman's role as a wife and mother should have first priority.

Islam unequivocally allows both single and married women to own property in their own right. Islam grants to women the right to inherit property. (See widow inheritance.) However, a woman's inheritance is different from a man's, both in quantity and attached obligations. For instance, a daughter's inheritance is half that of her brothers, Sharia law requires family members females or males to support each other as needed; compare female inheritance in Salic law.


Islamic jurists have traditionally held that Muslim women may enter into marriage with only Muslim men,[124] although some contemporary jurists question the basis of this restriction.[124][125][126] On the other hand, the Qur'an allows Muslim men to marry any woman of the People of the Book, a term that includes Jews, Sabians, and Christians, but the catch is that they have to be chaste.[124][127] Furthermore since children have to be brought up in Islamic lifestyles, women have no choice but to convert. However, fiqh law has held that it is mukrah (reprehensible) for a Muslim man to marry a non-Muslim woman in a non-Muslim country.[124]

In 2003 a Malaysian court ruled that, under Sharia law, a man may divorce his wife via text messaging as long as the message was clear and unequivocal.[128] The divorced wife always keeps her dowry from when she was married, and is given child support until the age of weaning. The mother is usually granted custody of the child.[129] The divorced wife also receives spousal support for three months after the divorce until it can be determined whether she is pregnant.

See also: Ma malakat aymanukum

Topics of Islamic lawEdit

Shariah may be divided into five main branches:

  • ibadah (ritual worship)
  • mu'amalat (transactions and contracts)
  • adab (morals and manners)
  • i'tiqadat (beliefs)
  • 'uqubat (punishments)[130]
  • Human interaction, or al-mu'amalat includes:
    • Financial transactions as applied to Sharia-compliant Islamic finance
    • Endowments
    • Laws of inheritance
    • Marriage, divorce, and child care
    • Foods and drinks (including ritual slaughtering and hunting)
    • Penal punishments
    • Warfare and peace
    • Judicial matters (including witnesses and forms of evidence)

[131]

DietaryEdit

Main articles: Halal and Dhabiha

Islamic law does not present a comprehensive list of pure foods and drinks. However, it prohibits:[132]

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

The prohibition of dead meat is not applicable to fish and locusts.[133][134][135] Also hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,[136] Jallalah (animals whose meat carries a stink in it because they feed on filth),[137] tamed donkeys,[138] and any piece cut from a living animal.[132][139]

SportsEdit

Modern-day sports are permitted and encouraged in Islam providing that it doesn't become the main focus of a Muslim's life.

The encouragement and participation of sports among both men and women have been recorded in Hadith. The term 'sport' denotes activities Muhammad encouraged, such as archery, swimming, horse-riding, wrestling, etc.

ArcheryEdit

Muhammad strongly encouraged the learning and practice of archery. Uqbah Bin Amir also narrates that he heard Muhammad say: "Whoever gives up archery after having learnt it, is not of us."

On another occasion, Muhammad once passed by a group of his companions who were competing in archery. He encouraged them saying, "Shoot and I am with you."

Muhammad is reported to have also said: "There is blessing in the forelocks of horses."[140]

SwimmingEdit

`Abd Allah ibn `Umar narrates that Muhammad once said "Teach your sons swimming and archery and riding the horse." This relates to the Talmudic requirement that sons be taught how to swim and may best be understood as a requirement to teach one's children those skills necessary to survive and thrive.

RacingEdit

Muhammad himself used to race his wife. Aisha said: "I raced with the Prophet and beat him in the race. Later when I had put on some weight, we raced again and he won. Then the Prophet said, 'This cancels that', referring to the previous occasion."

Games of chance/card playing Edit

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

Abd-Allah ibn Amr reported that Muhammad prohibited all games of chance and card playing that caused financial gain or loss.[141]

Marriage and divorceEdit

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

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

Requirements for Islamic Marriages:

  • These are guidelines; Islamic law on divorce is different depending on the school of thought.[142]
  • The man who is not currently a fornicator may marry only a woman who is not currently a fornicatress or a chaste woman from the people of the Book.
  • The woman who is not currently a fornicatress may marry only a man who is not currently a fornicator.
  • The fornicator may marry only a fornicatress – and vice versa.
  • The Muslim woman may marry only a Muslim man.
  • The guardian may choose a suitable partner for a virgin girl, but the girl is free to contest and refuse.
  • The guardian may not marry the divorced woman or the widow if she did not ask to be married.
  • It is obligatory for a man to give bride wealth (gifts) to the woman he marries – "Do not marry unless you give your wife something that is her right."[142]
  • A woman who wishes to be divorced usually needs the consent of her husband. However, most schools allow her to obtain a divorce without her husband's consent if she can show the judge that her husband is impotent. If the husband consents she does not have to pay back the dower.
  • Men have the right of unilateral divorce. A divorce is effective when the man tells his wife that he is divorcing her. At this point the husband must pay the wife the "delayed" component of the dower.
  • A divorced woman of reproductive age must wait four months and ten days before marrying again to ensure that she is not pregnant. Her ex-husband should support her financially during this period.
  • If a man divorces his wife three times, he can no longer marry her again unless she marries another man and they got divorced (only in a way that this divorce is not intended for the woman to re-marry her first husband) the woman could re-marry her first husband.

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

Fear Allah concerning women! Verily you have taken them on the security of Allah, and intercourse with them has been made lawful unto you by words of Allah. You too have right over them, and that they should not allow anyone to sit on your bed whom you do not like. But if they do that, you can chastise them but not severely. Their rights upon you are that you should provide them with food and clothing in a fitting manner. (Narrated in Sahih Muslim, on the authority of Jabir ibn Abd-Allah.)

[143]

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

If the husband senses that feelings of disobedience and rebelliousness are rising against him in his wife, he should try his best to rectify her attitude by kind words, gentle persuasion and reasoning with her. If this is not helpful, he should sleep apart from her, trying to awaken her agreeable feminine nature so that serenity may be restored, and she may respond to him in a harmonious fashion. If this approach fails, it is permissible for him to smack her lightly with his hands, avoiding her face and other sensitive parts. In no case should he resort to using a stick or any other instrument that might cause pain and injury.

PenaltiesEdit

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

In accordance with the Qur'an and several hadith, theft is punished by imprisonment or amputation of hands or feet,[144] depending on the number of times it was committed and depending on the item of theft. However, before the punishment is executed two eyewitnesses under oath must say that they saw the person stealing. If these witnesses cannot be produced then the punishment cannot be carried out. Witnesses must be either two men, or, if only one man can be found, one man and two women. Several requirements are in place for the amputation of hands, so the actual instances of this are relatively few; they are:

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

All of these must be met under the scrutiny of judicial authority. [Qur'an 5:38][145]

In accordance with hadith, stoning to death is the penalty for married men and women who commit adultery. In addition, there are several conditions related to the person who commits it that must be met. One of the difficult ones is that the punishment cannot be enforced unless there is a confession of the person, or four male eyewitnesses who each saw the act being committed. All of these must be met under the scrutiny of judicial authority[146] For unmarried men and women, the punishment prescribed in the Qur'an and hadith is 100 lashes.[147]

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

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

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

In most interpretations of Sharia, conversion by Muslims to other religions, is strictly forbidden and is termed apostasy. Muslim theology equates apostasy to treason, and in most interpretations of Sharia, the penalty for apostasy is death. During the time of Muhammad, treason and apostasy were considered one and the same; nowadays, many scholars differentiate between treason and apostasy, believing that the punishment for apostasy is not death, while the punishment for treason is death.

In many Muslim countries, the accusation of apostasy is even used against non-conventional interpretations of the Qur'an. The severe persecution of the famous expert in Arabic literature, Nasr Abu Zayd, is an example of this.

Insulting Muhammad or blasphemy has also resulted in the death penalty.[148]

Customs and behaviourEdit

See also: Islamic hygienical jurisprudence

Practitioners of Islam are generally taught to follow some specific customs in their daily lives. Most of these customs can be traced back to Abrahamic traditions in Pre-Islamic Arabian society.[149] Due to Muhammad's sanction or tacit approval of such practices, these customs are considered to be Sunnah (practices of Muhammad as part of the religion) by the Ummah (Muslim nation). It includes customs like:

  • Saying "Bismillah" (in the name of God) before eating and drinking.[150]
  • Using the right hand for drinking and eating.[151]
  • Saying "As-Salamu Alaykum" (peace be upon you) when meeting someone and answering with "Wa 'alaikumus salam" (and peace be upon you).[152]
  • Saying "Alhamdulillah" (all gratitude is for only God) when sneezing and responding with "Yarhamukallah" (God have mercy on you).[153]
  • Saying the "Adhan" (prayer call) in the right ear of a newborn and the Iqama in its left.
  • In the sphere of hygiene, it includes:
    • Clipping the moustache
    • Cutting nails
    • Circumcising the male offspring[154][155]
    • Cleaning the nostrils, the mouth, and the teeth[156] and
    • Cleaning the body after urination and defecation[157]
  • Abstention from sexual relations during the menstrual cycle and the puerperal discharge,[Qur'an 2:222] and ceremonial bath after the menstrual cycle, and Janabah (seminal/ovular discharge or sexual intercourse).[Qur'an 4:43][Qur'an 5:6]
  • Burial rituals include funeral prayer[158] of bathed[159] and enshrouded body in coffin cloth[160] and burying it in a grave.[161]

RitualsEdit

Main articles: Eid ul-Fitr and Eid al-Adha

There are two festivals that are considered Sunnah.[161][162]

Rituals associated with these festivals are:[161]

  • Sadaqah (charity) before Eid ul-Fitr prayer.[163]
  • The Prayer and the Sermon on Eid day.
  • Takbirs (glorifying God) after every prayer in the days of Tashriq (Normally these days are considered to be the ones in which pilgrims stay at Mina once they return from Muzdalifah i.e. 10th, 11th , 12th, and 13th of Dhu al-Hijjah.)
  • Sacrifice of unflawed, four legged grazing animal of appropriate age after the prayer of Eid al-Adha in the days of Tashriq.[164]

Dress codesEdit

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

There are many different opinions, however, as to whether the veil or headscarf is a real Qur'anic obligation. Some scholars such as Yusuf al-Qaradawi claim it is, while others, such as Mohammed Arkoun, Soheib Bencheikh, Abdoldjavad Falaturi, Jamal al Banna claim it isn't. However, the first group appears dominant: "Jamal al Banna has been for a number of years one of the few mainstream Muslim scholars to argue that the Muslim headscarf, or hijab, is not an Islamic obligation." [165]

See alsoEdit

Specific issues
Schools of Jurisprudence

NotesEdit

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  123. the last sermon of Muhammad
  124. 124.0 124.1 124.2 124.3 On Christian Men marrying Muslim Women
  125. Imam Khaleel Mohammed's defense of inter-faith marriage
  126. Asharq Al-Awsat Interviews Sudanese Islamist leader Dr. Hassan Turabi
  127. Qur'an, [Qur'an 5:5]
  128. Malaysia permits text message divorce - BBC
  129. Who has more right to custody in Islam?
  130. Lashing, stoning, mutilating: Islamic law is barbaric and outdated. Defend the case of Islam.
  131. mu`amalat laws according to five major schools of jurisprudence and The Majallah
  132. 132.0 132.1 Ghamidi(2001), The dietary laws
  133. Sunan ibn Maja 2314
  134. Al-Sunan al-Sughra 59
  135. Al-Zamakhshari. Al-Kashshaf, vol. 1, (Beirut: Daru'l-Kitab al-'Arabi), p. 215
  136. Sahih Muslim 1934
  137. Al-Sunan al-Sughra 4447
  138. Sahih al-Bukhari 4199
  139. Sunan Abi Dawood 2858
  140. Mumtaz Ali Tajddin S.Ali , Horse-Racing in Islam, ismaili.net
  141. Prohibited Sports
  142. 142.0 142.1 Islamic Law, الشريعة الإسلامية, islamic law sharia
  143. The Book of Pilgrimage (Kitab Al-Hajj)
  144. Qur'an 5:38
  145. Islamic Law: Myths and Realities, by Denis J. Wiechman, Jerry D. Kendall, and Mohammad K. Azarian, muslim-Canada.org
  146. ,
  147. Qur'an 24:2,
  148. What has been the punishment for Blasphemy in Islam?
  149. Ghamidi(2001), Sources of Islam
  150. Sunan al-Tirmidhi 1513
  151. Sahih Muslim 2020
  152. Sahih al-Bukhari 6234
  153. Sahih al-Bukhari 6224
  154. Sahih Muslim 257
  155. Sahih Muslim 258
  156. Sahih Muslim 252
  157. Sunan Abi Dawood 45
  158. Ghamidi, Various types of the prayer
  159. Sahih al-Bukhari 1254
  160. Sahih Muslim 943
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  162. Sunan Abu Da'ud 1134
  163. Sahih al-Bukhari 1503
  164. Ghamidi, The Ritual of Animal Sacrifice
  165. Dead link p. 75

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