Sharia

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Sharia, Sharia law or Islamic law is a set of religious principles which form part of the Islamic tradition. The Arabic word sharīʿah (Arabic: شريعة) refers to the revealed law of God and originally meant "way" or "path".

Classical sharia deals with many aspects of public and private life, including religious rituals, family life, business, crimes, and warfare. In former times, sharia was interpreted by independent jurists, who based their legal opinions on Qur'an, Hadith and centuries of debate, interpretation and precedent. Some parts of sharia can be described as "law" in the usual sense of that word, while other parts are better understood as rules for living life in accordance with God's will.

Modern countries in the Muslim world all have their own laws. In most of them only a small part of the legal system is based on classical sharia. Muslims disagree on how sharia should be applied in the modern world.

Meaning and origins of the word[change | change source]

People of different religions who speak Arabic use the word sharīʿah to describe a religous tradition that comes from teachings of prophets. Christians and Jews in the Middle East have used it to describe their own religion.[1] For many Muslims the word "sharia" means simply "justice". They will say that any law agrees with sharia as long as it helps to build a more fair and prosperous society.[2]

Most Muslims think that sharia should be interpreted by experts in Islamic law.[2] In Arabic, the word sharīʿah refers to God's revelation, which does not change. In constrast, the rules of behavior created by scholars as they try to understand God's revelation are called fiqh. These rules can change and Islamic scholars have often disagreed about them.[3]

Scholars disagree about the origins of the word "sharia". Some say that "sharia" comes from the old Arabic word meaning "pathway to be followed". This would make it similar to halakha (the way to go), the Hebrew word for Jewish law.[4] Other scholars think that the word "sharia" originally meant "path to the water hole". They say that knowing the way to a water hole could save a man's life in the dry deserts where many Arabs lived in ancient times, and that is why this word came to refer to God's guidance to man.[5]

Classical law[change | change source]

Classical legal theory[change | change source]

Islamic scholars who lived during the first centuries of Islam developed different methods for interpreting sharia. Most of them came to agree that sharia rules should be derived from the following main sources:[6]

  1. The Qur'an, which Muslims believe was revealed by God to Muhammad through the angel Gabriel (Jibril).
  2. The actions and words of Muhammad, which are called the sunnah and were preserved in collections called hadith
  3. Consensus, when legal experts all agree on a point of law
  4. qiyās or legal reasoning by analogy

The process of deriving sharia rules from the Qur'an and hadith is called ijtihad. Sharia rules classify actions into one of the following categories:[2]

  • Fard (action that one must perform)
  • Mandub (recommended action)
  • Mubah (action that is allowed)
  • Makruh (action that is despised)
  • Haram (forbidden action)

Sharia in Islam is viewed as the revealed law of God, which cannot be altered. On the other hand, its interpretation, called fiqh, is the work of legal scholars, who have frequently differed in their legal opinions. Some parts of sharia are similar to what people in the West call "law", while other parts are better understood as rules for living life in accordance with God's will.[2]

There are several schools of legal thought in Islam, of which the most important are the Hanafi, Maliki, Shafi'i and Hanbali schools of Sunni Islam and the Ja'fari school of Shia Islam.

Branches of sharia[change | change source]

The divisions of sharia are called "branches" (furu) in Arabic. The main branches are ibadat (rituals or acts of worship) and mu'amalat (human interactions or social relations). These branches are divided into many smaller branches, some of which are listed bellow:

  1. The acts of worship, or al-ibadat, called the 5 pillars of Islam: affirmation of faith, prayer, fasting, charity, and pilgrimage
  2. Human interaction, or al-mu'amalat, which includes:
    1. Financial transactions
    2. Endowments
    3. Laws of inheritance
    4. Marriage, divorce, and child custody
    5. Foods and drinks (including ritual slaughtering and hunting)
    6. Penal punishments
    7. Warfare and peace
    8. Judicial matters (including witnesses and forms of evidence)

Acts of worship[change | change source]

The Five Pillars of Islam are:

  1. Affirmation (Shahadah): there is no god except God and Muhammad is his messenger.
  2. Prayer (Salah): five times a day
  3. Fasting (Sawm during Ramadan)
  4. Charity (Zakat)
  5. Pilgrimage to Mecca (Hajj)

There are two festivals that are considered Sunnah.[7]

  1. Eid ul-Fitr
  2. Eid ul-Adha

There are some special rituals used during these festivals:

  • Sadaqah (charity) before Eid ul-Fitr prayer.[8]
  • The Prayer and the Sermon on Eid day.
  • Takbirs (glorifying God) after every prayer in the days of Tashriq (see footnote for def.)[9]
  • Sacrifice of unflawed, four-legged grazing animal of appropriate age after the prayer of Eid ul-Adha in the days of Tashriq. The animal must not be wasted; its meat must be consumed.[10]

Dietary laws[change | change source]

Main page: Halal

Islamic law lists only some specific foods and drinks that are not allowed.[11]

  1. Pork, blood, and scavenged meat are not allowed. People are also not allowed to eat animals that were slaughtered in the name of someone other than Allah.
  2. Intoxicants (like alcoholic drinks and drugs) are not allowed generally.

While Islamic law prohibits dead meat, this does not apply to fish and locusts.[12][13][14] Also, hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,[15] tamed donkeys,[16] and any piece cut from a living animal.[11][17]

Sacrifice[change | change source]

There are some specific rules regarding the killing of animals in Islam.

  1. The animal must be killed in the most humane way: by swiftly cutting the throat.
  2. The animal must not be diseased.
  3. The animal must not have been exposed to feces, worms, and other impurities.
  4. All blood must drain from the animal before being packaged.

Family life[change | change source]

  • A Muslim woman can only marry a Muslim man and a Muslim man can only marry a Muslim or Ahl al-Kitāb . He/She cannot marry an atheist, agnostic or polytheist.[18]
  • A Muslim minor girl's father or guardian needs her consent when arranging a marriage for her.
  • A marriage is a contract that requires the man to pay, or promise to pay some of the wedding and provisions the wife needs. This is known as the Mahr or Meher.
  • A Muslim man may be married to up to four women at a time, although the Qur'an has emphasized that this is a permission, and not a rule. The Qur'an has stated that to marry one is best if you fear you cannot do justice between your wives and respective families. This means that he must be able to house each wife and her children in a different house, he should not give preferential treatment to one wife over another.
  • A female heir inherits half of what a male heir inherits. The concept being that Islam puts the responsibility of earning and spending on the family on the male. Any wealth the female earns is strictly for her own use. The female also inherits from both her immediate family and through agency of her husband, her in-laws as well.

Crime and punishment[change | change source]

Sharia recognizes three categories of crime:[19]

  1. Hudud: crimes against God with fixed punishment.
  2. Qisas: crimes against Muslims where equal retaliation is allowed.
  3. Tazir: crimes against Muslims or non-Muslims where a Muslim judge uses his discretion in sentencing.

Although there is some disagreement about which crimes are hudud crimes, they usually include theft, highway robbery, zina (sex with forbidden partners), falsely accusing someone of zina, and drinking alcohol. The prescibed punishments for these crimes range from 80 lashes to death. However, classical jurists developed very strict rules which restrict when these punishments could be applied, so that it became almost impossible to convict anyone under these rules. For example, there must be four adult male Muslim witnesses to a hudud crime or a confession repeated four times, before someone can be punished. If a criminal could not be convicted of a hudud crime, they could still receive a tazir punishment.[2][20]

Murder, bodily injury and property damage - intentional or unintentional - is considered a civil dispute under sharia law.[21] The victim, victim's heir(s) or guardian is given the option to either forgive the offender, demand Qisas (equal retaliation) or accept a compensation (Diyya). Under sharia law, the Diyya compensation received by the victim or victim's family is in cash.[22][23]

Apostasy is punished by death unless the apostate agreed to return to Islam.

Classical legal system[change | change source]

Muftis[change | change source]

During the Islamic Golden Age, sharia was interpreted by experts in Islamic law (muftis), most of whom were independent religious scholars. Anyone could ask them a question about law, and they were expected to give an answer for free. Their legal opinions were called fatwas.[2][24]

Qadi's courts[change | change source]

When there was a legal dispute about family or financial matters, it would be handled in a court headed by a qadi (judge). These judges also had a legal education, and they were appointed to their post by the ruler. In simple cases, qadis would pronounce a verdict based on their own knowledge of sharia. In more difficult cases, they would express the details of the case in general terms and ask a mufti for his legal opinion.[2][24]

Mazalim courts[change | change source]

Criminal cases were usually handled in maẓālim courts. These courts were controlled by the ruler's council. Mazalim courts were supposed to follow "the spirit of sharia". Qadis and muftis were present in those courts to make sure the verdicts did not go against it. However, these courts did not necessarily follow the letter of the law, and they had fewer legal restrictions than qadi's courts. Mazalim courts also handled complaints against government officials. Their purpose of mazalim courts was to "right wrongs" which could not be addressed through procedures of qadi's courts. Less serious crimes were often handled by local police and market inspectors according to local customs, which were only loosely related to sharia.[2][24]

Non-Muslims[change | change source]

Non-Muslim communities living under Islamic rule were allowed to follow their own laws. The government kept out of their internal legal affairs, except when there was a dispute between people of different religions. Such cases were handled by a qadi.[2]

Sharia in the modern world[change | change source]

In the modern era, most parts of the Muslim world came under influence or control of European powers. This led to major changes in the legal systems of these lands. In some cases, this was because Muslim governments wanted to make their states more powerful and they took European states as models of what a modern state should look like. In other cases, it was because Europeans who colonized these lands forced them to abandon parts of Islamic law and follow European laws instead.[24]

Early legal reforms[change | change source]

In modern times, criminal laws in the Muslim world were widely replaced by codes which were inspired by European laws.[2][25] Court procedures and legal education were also made similar to European practice. The constitutions of most Muslim-majority states mention sharia in one way or another. However, the classical rules of sharia were preserved mostly in family laws. In earlier times, sharia was intepreted by independent scholars who often disagreed with each other, and all their opinions were never written down in one place. In the modern era, it was the government who controlled the laws. Different states created their own legal codes, where the laws were clearly stated. The governments wanted to make family laws fit better in the modern world, but they still wanted people to view them as laws based on sharia. In order to do this, the scholars who wrote down these laws decided to pick and choose rules from the different legal opinions available in the classical books of law. When some of the laws they picked disagreed with the current norms of society, the government tried to solve this problem by creating additional court procedures. For example, when family laws in some states seemed to treat women unfairly to the population, the government created procedures that made it more difficult for men to take advantage of these laws in an unfair manner.[2][24]

Recent legal reforms[change | change source]

In the second half of the late 20th century, many Muslims around the world became disappointed in their governments. These governments had adopted Western ways in their legal systems and other matters, but many people regarded their actions as oppressive, corrupt, and ineffective. More and more Muslims started to think that things would improve if their government returned to Islamic traditions. They began calling for return of sharia, and conservative members of the public wanted the government to apply all the classical rules, including hudud punishments. In a few countries, the government put some elements of classical criminal law into the legal code. However, in some of these countries (for example, Iran and Sudan) the supreme court has rarely approved the harsher hudud punishments, while in the other countries which adopted hudud laws (for example, Pakistan and Nigeria), the supreme court never approves them.[2][24][26]

In some countries, progressive Muslim reformers have been able to change how the state interprets sharia family laws to make them more fair to women.[2][24]

Saudi Arabia[change | change source]

Saudi Arabia is an exceptional case in the legal history of the Muslim world. It has always continued to use sharia in different areas of law, and it never codified its laws. Its judges have always tried to follow traditional sharia rules for dealing with crimes, and they often impose harsh punishments that inspire international protests. However, these punishments are not necessarily prescribed by sharia. Judges in Saudi Arabia follow the classical principle which says that hudud punishments should be avoided if at all possible, and the punishments which they apply are usually tazir punishments which are left to their own choice.[27] Saudi Arabia is often criticized for its public executions, and their frequency has increased in recent decades. This happened because the government and courts decided to crack down on violent crime which became more frequent during the 1970s, as also happened in the U.S. and China.[27]

Notes[change | change source]

  1. ↑ Calder, Norman; Hooker, Michael Barry (2007). "S̲h̲arīʿa". In P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs. Encyclopaedia of Islam. 9 (2nd ed.). Brill. pp. 321–26. http://referenceworks.brillonline.com/entries/encyclopaedia-of-islam-2/sharia-COM_1040.
  2. ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 Knut S. Vikør (2014). "Sharīʿah". The Oxford Encyclopedia of Islam and Politics. Ed. Emad El-Din Shahin. Oxford University Press. 
  3. ↑ "Islamic Law". The Oxford Dictionary of Islam. (2014). Ed. John L. Esposito. Oxford: Oxford University Press. 
  4. ↑ 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.
  5. ↑ Weiss, Bernard G. (1998). The Spirit of Islamic Law. Athens, Georgia: University of Georgia Press. p. 17. ISBN 978-0-8203-1977-3.
  6. ↑ Hallaq, Wael B. (2009). An Introduction to Islamic Law. Cambridge University Press. ISBN 978-0-521-86146-5. https://iuristebi.files.wordpress.com/2011/07/an-introduction-to-islamic-law.pdf.
  7. ↑ Sunan Abu Da'ud 1134
  8. ↑ Sahih Bukhari 1503
  9. ↑ Normally these are thought to be the days in which pilgrims stay at Mina once they return from Muzdalifah i.e. 10th, 11th, 12th, and 13th of Dhu al-Hijjah
  10. ↑ Ghamidi, The Ritual of Animal Sacrifice
  11. ↑ 11.0 11.1 Ghamidi(2001), The dietary laws
  12. ↑ Sunan ibn Maja 2314
  13. ↑ Nisai 59
  14. ↑ Al-Zamakhshari. Al-Kashaf, vol. 1, (Beirut: Daru’l-Kitab al-‘Arabi), p. 215
  15. ↑ Sahih Muslim 1934
  16. ↑ Sahih Bukhari 4199
  17. ↑ Sunan Abu Da'ud 2858
  18. ↑ AB Leeman (2009), Interfaith Marriage in Islam, Indiana Law Journal, 84, pp. 743–746
  19. ↑ R Peters (2006), Crime and Punishment in Islamic Law, Cambridge University Press, ISBN 978-0521796705, pp. 116-119
  20. ↑ M. Cherif Bassiouni (1997), Crimes and the Criminal Process, Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269-286
  21. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 283-288
  22. ↑ Aaron Spevack (2014), The Archetypal Sunni Scholar: Law, Theology, and Mysticism, ISBN 978-1438453712, p. 81
  23. ↑ M Kar (2005), Encyclopedia of Women and Islamic Cultures: Family, Law and Politics (Ed: Suad Joseph, Afsāna Naǧmābādī), ISBN 978-9004128187, pp. 406-407
  24. ↑ 24.0 24.1 24.2 24.3 24.4 24.5 24.6 "Law". The Oxford Encyclopedia of the Islamic World. (2009). Ed. John L. Esposito. Oxford: Oxford University Press. 
  25. ↑ Otto 2008, p. 19.
  26. ↑ Otto 2008, p. 20.
  27. ↑ 27.0 27.1 Vikør, Knut S. (2005). Between God and the Sultan: A History of Islamic Law. Oxford University Press. pp. 266-267.

References[change | change source]

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