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Sharia

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Sharia law (Arabic: شريعة‎ šarīʿah, IPA: [ʃaˈriːʕa], “legislation“; sp. shariah, sharīʿah;[1] also Islamic law, قانون إسلامي qānūn ʾIslāmī) is the moral code and religious law of Islam. Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. Though interpretations of sharia vary between cultures, in its strictest definition it is considered the infallible law of God—as opposed to the human interpretation of the law (fiqh).

There are two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Where it has official status, sharia is interpreted by Islamic judges (qadis) with varying responsibilities for the religious leaders (imams). For questions not directly addressed in the primary sources, they extend the application of sharia through consensus of the religious scholars (ulama) thought to embody the consensus of the Muslim Community (ijma). Islamic jurisprudence will also sometimes incorporate analogies from the Quran and Sunnah through qiyas, though Shia jurists prefer reasoning (‘aql) to analogy.

The reintroduction of sharia is a longstanding goal for Islamist movements in Muslim countries, but attempts to impose sharia have been accompanied by controversy,[2][3][4] violence,[5][6][7][8][9][10] and even warfare such as the Second Sudanese Civil War.[11][12][13][14] Some Muslim minorities in India and other countries in Asia have maintained institutional recognition of sharia, and use it to adjudicate their personal and community affairs. In western countries where Islamic immigration is more recent, Muslim minorities have introduced sharia family law for use in their own disputes, such as Britain’s Muslim Arbitration Tribunal.

Etymology

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Countries with sharia.

Scholars describe the word sharia as an archaic Arabic word denoting “pathway to be followed”,[16][17] or “path to the water hole”.[20] The latter definition comes from the fact that the path to water is the whole way of life in an arid desert environment.[18]

The etymology of sharia as a “path” or “way” comes from the Qur’anic verse[Quran45:18]: “Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not.”[17] Abdul Mannan Omar in his Dictionary of the Holy Quran, believes the “Way” in 45:18 (quoted above) derives from shara’a (as prf. 3rd. p.m. sing.), meaning “He ordained”. Other forms also appear: shara’u[Quran45:13] as (prf. 3rd. p.m. plu.), “they decreed (a law)”[Quran42:21]; and shir’atun (n.) meaning “spiritual law”[Quran5:48].[21]

Definitions and descriptions

Sharia, in its strictest definition, is a divine law, as expressed in the Qur’an and Muhammad’s example (often called the sunnah). As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the law.[22][23] Many scholars have pointed out that the sharia is not formally a code,[24] nor a well-defined set of rules.[25] The sharia is characterized as a discussion on the duties of Muslims[24] based on both the opinion of the Muslim community and extensive literature.[26] Hunt Janin and Andre Kahlmeyer thus conclude that the sharia is “long, diverse, and complicated.”[25]

From the 9th century, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.[27] Through succeeding centuries and empires, the balance between the ulema and the rulers shifted and reformed, but the balance of power was never decisively changed.[28] At the beginning of the nineteenth century, the Industrial Revolution and the French Revolution introduced an era of European world hegemony that included the domination of most of the lands of Islam.[29][30] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires.[31] The wide variety of forms of government, systems of law, attitudes toward modernity and interpretations of sharia are a result of the ensuing drives for independence and modernity in the Muslim world.[32][33]

Sources of Islamic law

There are two sources of Sharia (understood as the divine law): the Qur’an and Sunnah. According to Muslims, the Qur’an is the unalterable word of God. Much of the Qur’an exhorts Muslims to general moral values; only 80 verses of the Qur’an contain legal prescriptions.[34] The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah’s importance as a source of Sharia, is confirmed by several verses of the Qur’an (e.g. [Quran33:21]).[35] The Sunnah is primarily contained in the hadith or reports of Muhammad’s sayings, his actions, his tacit approval of actions and his demeanor. While there is only one Qur’an, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasa’i, Ibn Majah. The collections by al-Bukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them.[36] For Shi’ites, the Sunnah may also include anecdotes The Twelve Imams.[37]

The process of interpreting the two primary sources of Islamic law is called fiqh (literally meaning “intelligence”) or Islamic jurisprudence. While the above two sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh covers all aspects of law, including religious, civil, political, constitutional and procedural law.[38] Fiqh depends on 4 sources:[38]

  1. Interpretations of the Qur’an
  2. Interpretations of the Sunnah
  3. Ijma, consensus amongst scholars (“collective reasoning”)
  4. Qiyas/Ijtihad analogical deduction (“individual reasoning”)

Amongst the sources unique to fiqh, i.e. ijma and qiyas/ijtihad, the former is preferred.[38] In Shi’a jurisprudence the fourth source may be expanded to include formal logic (mantiq).[39] Historically the fiqh also came to include comparative law,[37] local customs (urf)[40] and laws motivated by public interest, so long as they were allowed by the above four sources.[40] Because of the involvement of human interpretation, the fiqh is considered fallible, and thus not a part of Sharia (although scholars categorize it as Islamic law).[38]

There exist five schools of thought of fiqh, all founded within the first four centuries of Islam. Four are Sunni Hanafi, Maliki, Shafi’i and Hanbali and one Shia: Ja’afri (followed by most Shia Muslims[41]) Many Islamic scholars today advocate renewed approaches to fiqh that don’t necessarily follow the traditional five allegiances.[38] The Salafi movement attracts followers from various schools of fiqh, and is based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims.[42]

Modern perspectives

Muslims have responded in a variety of ways to the forces of modernity. These responses cross the lines of tradition, sect and school. They affect the way sharia is interpreted by individuals in their personal lives, and the extent to which sharia is implemented in the public sphere by the state. These diverse movements can be referred to collectively as contemporary sharia(s).[43]

Spectrum of Muslim legal systems

The legal systems in 21st century Muslim majority states can be classified as follows:

Sharia in the secular Muslim states: Muslim countries such as Mali, Kazakhstan and Turkey have declared themselves to be secular. Here, religious interference in state affairs, law and politics is prohibited.[44] In these Muslim countries, as well as the non-Muslim West, the role of sharia is limited to personal and family matters.

The Nigerian legal system is based on English Common Law and the constitution guarantees freedom of religion and separation of church and State. However eleven northern states have adopted sharia law for those who practice the Muslim religion.[45]

Muslim states with blended sources of law: Muslim countries including Pakistan, Indonesia, Afghanistan, Egypt, Sudan, Morocco and Malaysia have legal systems strongly influenced by sharia, but also cede ultimate authority to their constitutions and the rule of law. These countries conduct democratic elections, although some are also under the influence of authoritarian leaders. In these countries, politicians and jurists make law, rather than religious scholars. Most of these countries have modernized their laws and now have legal systems with significant differences when compared to classical sharia.[46]

Muslim states using classical sharia: Saudi Arabia and some of the Gulf states do not have constitutions or legislatures. Their rulers have limited authority to change laws, since they are based on sharia as it is interpreted by their religious scholars. Iran shares some of these characteristics, but also has a parliament that legislates in a manner consistent with sharia.[47]

Factors influencing the modern role of sharia

Against the backdrop of differing religious sects, scholarship, classical schools of thought, and governmental implementations, the following forces are at work influencing future developments in sharia law.

Rapid exchange of cultures and ideas

Around the world, Muslims are becoming more connected by the Internet and modern communications. This is leading to wider exchanges of ideas and cultures. Reactionary and fundamentalist movements are unlikely to halt this trend, as the sharia itself defends the right to privacy within the home.[48]

Schools of thought

Modernists, traditionalists and fundamentalists all hold different views of sharia, as do adherents to different schools of Islamic thought and scholarship. 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 Quran and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define sharia as law based upon the Quran, 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 Quran and the Sunnah. The Quran 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.”[49]

Revival of the religion

Simultaneously with liberalizing and modernizing forces, trends towards fundamentalism and movements for Islamic political power are also taking place. There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.[50]

A return to traditional views of sharia: There is a long-running worldwide movement underway by Muslims towards a better understanding and practice of their religion. Encouraged by their scholars and imams, Muslims have moved away from local customs and culture, and towards more universally accepted views of Islam. This movement towards traditional religious values served to help Muslims cope with the effects of European colonization. It also inspired modernist movements and the formation of new governments.[51]

The Islamist movement: Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia not just within their own borders, their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.[52] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey’s secular government.[52] These movements can be considered neo-Sharism.[53]

The Fundamentalist movement: Fundamentalists, wishing to return to basic religious values and law, have in some instances imposed harsh sharia punishments for crimes, curtailed civil rights, and violated human rights. These movements are most active in areas of the world where there was contact with Western colonial powers.[54]

Extremism: Extremists have used the Quran and their own particular version of sharia[55] to justify acts of war and terror against Western individuals and governments, and also against other Muslims believed to have Western sympathies. [56] Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.[57]

Immutability of God’s will

Although there are many different interpretations of sharia, and differing perspectives on each interpretation, there is consensus among Muslims that sharia is a reflection of God’s will for humankind. Sharia must therefore be, in its purest sense, perfect and unchanging.[58] The evolution or refinement of sharia is an effort to reflect God’s will more perfectly.[59]

Distinction between sharia and customary law

According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, “Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high ranking religious authorities have stated the opposite.” Otto’s analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.[60]

Characteristics

Origins

According to Muslims, sharia law is founded on the words of Allah as revealed in the Quran, and traditions gathered from the life of the Prophet Muhammad. Muhammad was born ca. 570 CE in Mecca, a trading city in the Arabian desert. In addition to being a center of trade on the caravan routes, Mecca was a place of pilgrimage for Arabs of many beliefs.[61] The focus of religion in Mecca was the Ka’aba, a stone building believed to have been built by Adam at the beginning of time, and rebuilt by the Prophet Abraham and his son Ishmael.[62]

Mecca was inhabited by the Quraysh, a mostly pagan tribe with some Jews among them. Muhammad was orphaned at an early age, and came under the protection of an uncle. He grew up to become a trader and married his employer, a prosperous merchant named Khadija.[63] It was in middle age that Muhammad began to speak of revelations received from God through the angel Gabriel. Muhammad told others of his revelations, and attracted followers who transcribed them onto available materials.[64] Over the twenty three years from his first revelation until his death, Islam became the dominant force in the Arabian peninsula and Somalia, and a serious challenge to the Byzantine and Sasanian empires.[65] After Muhammad’s death, the revelations were collected and organized into the Quran, and accounts of his life eventually formed the basis for the Sunnah.

In pre-Islamic Arabia, bonds of common ancestry formed the basis for tribal association.[66] The advent of Islam brought the tribes together under a single religion. As Islam is not just a religion, but also a culture, a new common basis of law and personal behavior (Sharia) began to take shape.[67]

Sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44), during which time many questions were brought to the attention of Muhammad’s closest comrades for consultation.[68] During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.[68] Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.

Among the Muslims, tribal laws were adapted to conform to sharia “for they could not form part of the tribal law unless and until they were generally accepted as such.”[66] 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.”[66] So, while “each and every law must be rooted in either the Qur’an or the Sunnah,”[69] without contradiction, tribal life brought about a sense of participation. Such participation was further reinforced by Muhammad who stated, “My community will never agree in error”.[69]

Fiqh

 

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.[70] 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 (Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Quran and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.[71]

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.[72][73][74][75]

Categories of human behavior

Fiqh classifies behavior into the following types or grades: fard (obligatory), mustahabb (recommended), mubah (neutral), makruh (discouraged), and haraam (forbidden). Every human action belongs in one of these five categories.[76]

Actions in the fard category are those required of all Muslims. They include the five daily prayers, fasting, articles of faith, obligatory charity, and the hajj pilgrimage to Mecca.[76]

The mustahabb category includes proper behavior in matters such as marriage, funeral rites and family life. As such, it covers many of the same areas as civil law in the West. Sharia courts attempt to reconcile parties to disputes in this area using the recommended behavior as their guide. A person whose behavior is not mustahabb can be ruled against by the judge.[77]

All behavior which is neither discouraged nor recommended, neither forbidden nor required is of the Mubah; it is permissible.[76]

Makruh behavior, while it is not sinful of itself, is considered undesirable among Muslims. It may also make a Muslim liable to criminal penalties under certain circumstances.[77]

Haraam behavior is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Quran. Certain Muslim dietary and clothing restrictions also fall into this category.[76]

The recommended, neutral and discouraged categories are drawn largely from accounts of the life of the Islamic Prophet Muhammad. To say a behavior is sunnah is to say it is recommended as an example from the life and sayings of Muhammad. These categories form the basis for proper behavior in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.[76]

Topics of Islamic law

Sharia law can be organized in different ways:

Sharia can be divided into five main branches:

  1. ibadah (ritual worship)
  2. mu’amalat (transactions and contracts)
  3. adab (morals and manners),
  4. i’tiqadat (beliefs)
  5. ‘uqubat (punishments).

Reliance of the Traveller“, an English translation of a fourteenth century CE reference on the Shafi’i school of fiqh written by Ahmad ibn Naqib al-Misri, organizes sharia law into the following topics:

  1. Purification
  2. Prayer
  3. Funeral prayer
  4. Taxes
  5. Fasting
  6. Pilgrimage
  7. Trade
  8. Inheritance
  9. Marriage
  10. Divorce
  11. Justice

In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.

Purification

In Islam, purification has a spiritual dimension and a physical one. Muslims believe that certain human activities and contact with impure animals and substances cause impurity. Classic Islamic law details how to recognize impurity, and how to remedy it. Muslims use water for purification in most circumstances, although earth can also be used under certain conditions. Before prayer or other religious rituals, Muslims must clean themselves in a prescribed manner. The manner of cleansing, either wudhu or ghusl, depend on the circumstances. Muslims’ cleaning of dishes, clothing and homes are all done in accordance with stated laws.[78][79]

Prayer

Muslims are enjoined to pray five times each day, with certain exceptions. These obligatory prayers, salat, are performed during prescribed periods of the day, and most can be performed either in groups or by oneself; although it is recommended to pray in a group. There are also optional prayers which can be performed, as well as special prayers for certain seasons, days and events. Muslims must turn to face the Kaaba in Mecca when they pray, and they must be purified in order for their prayers to be accepted. Personal, informal prayer and invocation is practiced as well. Classic Islamic law details many aspects of the act of prayer, including who can pray, when to pray, how to pray, and where to pray.[80][81]

Funeral prayer

Muslims are encouraged to visit those among them who are sick and dying. Dying Muslims are reminded of God’s mercy, and the value of prayer, by those who visit them. In turn, the visitors are reminded of their mortality, and the transient nature of life. Upon death, the Muslim will be washed and shrouded in clean, white cloth. A special prayer, Janazah, is performed for the deceased, preferably by the assembled Muslim community. The body is taken to a place which has ground set aside for the burial of Muslims. The grave is dug perpendicular to the direction of Mecca, and the body is lowered into the grave to rest on its side, with the face turned towards Mecca. Classic Islamic law details visitation of the ill, preparation of the dead for burial, the funeral prayer and the manner in which the Muslim is buried.[82]

Alms

All Muslims who live above the subsistence level must pay an annual alms, known as zakat. In the modern sense, this would be Islam’s equivalent to US Social Security or UK National Insurance. This is not charity, but rather an obligation owed by the eligible Muslim to the poor of the community. The amount is calculated based on the wealth of the Muslim. There is no fixed rate stated in Quran; but the generally practiced rate is 2.5 percent. Eligibility and total payable varies; depending on the type and quantity of wealth being assessed.[83] If the Government wishes to create a comprehensive and robust welfare state, the rate can be increased. Wealth includes savings, jewelry and land. Classic Islamic law details the tax, how it is assessed, its collection, and its distribution.[84][85]

Fasting

During the Islamic month of Ramadan, Muslims abstain from food, drink, and sex between dawn and sunset. Exceptions to this obligation are made for children who are pre-pubescent, the infirm, travelers, and pregnant or menstruating women.[86] During Ramadan, the daylight hours will often begin and end with a large meal. After dinner, many Muslims participate in special communal prayers held during Ramadan. The end of Ramadan fasting is celebrated with special prayers, gatherings of family and friends, and specially prepared meals. Muslims may also fast on other special days of the year, and to make up for missed days of fasting. Classic Islamic law details the exact definition of the fast, the times of fasting, how a fast may be broken, who must fast, and permitted exceptions to the fast.[87][88]

Pilgrimage

At least once in each Muslim’s lifetime, they must attempt a visit to the Holy Places of Islam located in Mecca, Saudi Arabia. The focus of this journey is the Kaaba, a small rectangular building around which a huge mosque has been built. This pilgrimage, known as the Hajj, begins two months after Ramadan each year. Dressed in symbolically simple clothing, Muslim pilgrims circle the Kaaba seven times, often followed by a drink from a special stream. Next, a symbolic search for water is performed by travelling back and forth between two nearby peaks. On the eighth day of the month, the pilgrims travel to Mina in the desert and spend the night in tents. The following day, over two million Muslims gather on the slopes of Mount Arafat, where the afternoon is spent in prayer. The Feast of Sacrifice, celebrated by Muslims worldwide, is performed by pilgrims in Mina the next day, and includes the slaughter of an animal. Finally, the pilgrims perform a ritual Stoning of the Devil by tossing pebbles at three pillars. Classic Islamic law details the manner in which the pilgrim dresses, behaves, arrives, departs and performs each of these rituals.[89][90]

Trade

Islamic law recognizes private and community property, as well as overlapping forms of entitlement for charitable purposes, known as waqf or trusts. Under sharia law, however, ownership of all property ultimately rests with God; while individual property rights are upheld, there is a corresponding obligation to share, particularly with those in need.[91] The laws of contract and obligation are also formed around this egalitarian Quranic requirement, prohibiting unequal exchanges or unfair advantage in trade. On this basis, the charging of interest on loans is prohibited, as are other transactions in which risks are borne disproportionately to the potential returns between parties to a transaction. The limits on personal liability afforded by incorporation are seen as a form of usury in this sense, as is insurance. All these inequities in risk and reward between parties to a transaction, known collectively as riba, are prohibited.[92] For this reason, Islamic banking and financing are partnerships between customers and institutions, where risk and reward are distributed equitably. Partnerships, rather than corporations, are the key concept in collective Islamic business. Financing and investments are accomplished in this manner, as purchases and resales, with equity shifting over time between the institution and the client as payments are made or returns are recognized. Conversely, no individual is shielded from the consequences of poor judgement or bad timing.[93] The Islamic financial and investment models have taken root in the West and begun to flourish, even as the financial underpinnings of large Western corporations collapse under the weight of unevenly distributed risks.[94][95] Classic Islamic law details the manner of contracting, the types of transactions, the assignment of liability and reward, and the responsibilities of the parties in Islamic trade.[96]

Inheritance

The rules of inheritance under sharia law are intricate, and a female’s portion is generally half the amount a male would receive under the same circumstances.[97] Up to one third of a person’s property may be distributed as bequests, or wasiyya, upon their death. After debts are settled, the remainder of the estate will be divided among the family of the deceased according to the rules of inheritance, or irth.[98] In Islamic societies, inherited wealth and property do not easily accumulate to, or remain in, certain families. Large concentrations of property will be divided into smaller portions over time among male inheritors. Property will tend to flow to other families as female inheritors take their shares into their marriages.[99] Classic Islamic law details the division of property, the shares family members are entitled to, adjustments and redistributions in the shares, orders of precedence among inheritors, and substitution among inheritors.[100]

Marriage

The laws governing Islamic marriage vary substantially between sects, schools, states and cultures. The following outline is general in nature.

Marriage is mentioned in the Quran: nikah. It aims to be permanent, but can be terminated by the husband in the talaq process, or by the wife seeking divorce using khul’.

In nikah the couples inherit from each other. A dowry known as mahr is given to the bride, a legal contract is signed when entering the marriage, and the husband must pay for the wife’s expenses. For the contract to be valid there must be two witnesses under Sunni jurisprudence. There is no witness requirement for Shia contracts. 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 into nikah mut’ah.

Under Shia jurisprudence, nikah mut’ah is the second form of marriage. It is “Haram” in Sunni Islam according to Muslim scholars. It is a fixed-term marriage, which is a marriage with a preset duration, after which the marriage is automatically dissolved. Traditionally the couple does 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 does not count towards the maximum of four wives the Quran allows to Muslim men. The woman is still given her mahr dowry, and the woman must still observe the iddah, a period of five 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. There is controversy about the Islamic legality of this type of marriage since the Prophet Muhammad is said by Sunnis to have prohibited the practice after having temporarily allowed it.

A third type of marriage contract, known as misyar, is emerging in Sunni Islam. This marriage is not for a fixed period of time like nikah mut’ah, but is similar in other respects including lack of inheritance, lack of financial responsibility and freedom of movement on the part of the wife. In misyar marriage, the couple need not cohabit. There is lots of controversy regarding this form of marriage and most Sunni scholars disagree with the basis of misyar marriage. Muslims do, on occasion, marry according to urf, or local custom, without following the requirements set forth in sharia law. This may be done for various reasons, such as an inability of the couple to obtain permission from the bride’s guardian. In these cases, they may find their marriage to be unrecognized at a later point, and have difficulty availing themselves of legal remedies under sharia.

Requirements for Islamic Marriages:

  • The man who is not currently a fornicator may marry only a woman who is not currently a fornicatress or a chaste woman, a Muslim one or one from the people of the Book (Jews and Christians).
  • 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.
  • The Muslim woman may marry only a Muslim man.
  • Permission for a virgin female to marry must be given by her guardian, usually her father.
  • Any Muslim woman may demand her guardian marry her to a Muslim male, provided he is suitable. If the guardian refuses, a judge will effect the marriage.[101]
  • The father, or in some cases the paternal grandfather, may choose a suitable partner for a virgin girl.[102]
  • The guardian may not marry the divorced woman or the widow if she did not ask to be married.
  • Without the permission of the girl an Islamic marriage is considered invalid.
  • 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.”[103]

Polygamy

The Qur’an permits a Muslim man to marry more than one woman at a time (up to a maximum of four), but does not encourage such behavior. Polygamy is only permitted in certain circumstances, such as when the death of another man has left his wife with no other means of support.[104] All wives are entitled to separate living quarters at the behest of the husband and, if possible, all should receive equal attention, support, treatment and inheritance. In modern practice, it is uncommon for a Muslim man to have more than one wife; if he does so, it is often due to the infertility of his first wife. The practice of polygamy has been regulated or abolished in some Muslim states.[104][105]

Historically, Muslim rulers have often remarried the wives of their conquered opponents in order to gain ties of kinship with their new subjects. In these cases, the wives of leaders have sometimes numbered in the tens or even hundreds. In Ottoman Turkey, the practice also filtered down to the aristocracy. This became the basis for the Western image of a powerful, wealthy Muslim with a vast harem.[106]

Divorce

http://upload.wikimedia.org/wikipedia/commons/thumb/9/97/Zibik.jpg/160px-Zibik.jpg

 

An unhappy wife is complaining to the Qadi about her husband’s impotence. Ottoman miniature, 18th century.

The laws governing divorce vary substantially between sects, schools, states and cultures. The following outline is general in nature.

A marriage can be terminated by the husband in the talaq process, or by the wife seeking divorce through khul’. Under faskh a marriage may be annulled or terminated by the qadi judge.

Men have the right of unilateral divorce under classical sharia. A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her, however a Shia divorce also requires four witnesses.[107] Upon divorce, the husband must pay the wife any delayed component of the dower. If a man divorces his wife in this manner three times, he may not re-marry her unless she first marries, and is subsequently divorced from, another man. Only then, and only if the divorce from the second husband is not intended as a means to re-marry her first husband, may the first husband and the woman re-marry.[Quran2:230]

In practice, unilateral divorce is only common in a few areas of the Islamic world. It is much more common for divorces to be accomplished by mutual consent.[107]

If the wife asks for a divorce and the husband refuses, the wife has a right, under classical sharia, to divorce by khul’. Although this right is not recognized everywhere in Islam, it is becoming more common. In this scenario, the qadi judge will effect the divorce for the wife, and she may be required to return part, or all, of her dowry.[107]

Under faskh, a qadi judge can end or annul a marriage.[107] Apostasy, on the part of the husband or wife, ends a Muslim marriage in this way. Hardship or suffering on the part of the wife in a marriage may also be remedied in this way. This procedure is also used to annul a marriage in which one of the parties has a serious disability.[108]

Except in the case of a khul’ divorce initiated by a woman, the divorced wife generally keeps her dowry from when she was married. A divorced woman is given child support until the age of weaning. The mother is usually granted custody of the child.[109] If the couple has divorced fewer than three times (meaning it is not a final divorce) the wife also receives spousal support for three menstrual cycles after the divorce, until it can be determined whether she is pregnant. Even in a threefold divorce, a pregnant wife will be supported during the waiting period, and the child will be supported afterwards.[110]

Child custody

In a divorce, the child will stay with its mother until it is weaned,[111] or until the age of discernment, when the child may choose whom it lives with. The age of discernment is seven or eight years.[111]

Justice

The concept of justice embodied in sharia is different from that of secular Western law.[112] Muslims believe the sharia law has been revealed by God. In Islam, the laws that govern human affairs are just one facet of a universal set of laws governing nature itself. Violations of Islamic law are offenses against God and nature, including one’s own human nature. Crime in Islam is sin. Whatever crime is committed, whatever punishment is prescribed for that crime in this world, one must ultimately answer to God on the Day of Judgement.[112]

Legal and court proceedings

Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law. Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges’ verdicts do not set binding precedents[113][114][115] under the principle of stare decisis,[116] and unlike civil law, sharia does not utilize formally codified statutes[117] (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle). Instead of precedents and codes, sharia relies on jurists’ manuals and collections of non-binding legal opinions, or hadith, (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.

There are four categories of crimes in sharia law, qisas, hudud, tazir, and siyastan. Qisas involves personal injury and has several categories: intentional murder (first-degree), quasi-intentional murder (second-degree), unintentional murder (manslaughter), intentional injury, and semi-intentional/unintentional injury. A qisas (retaliation) offense is treated as a common law tort rather than a crime against the state. If the accused party is found guilty, the victim (or in death, victim’s family) determines the punishment, choosing either retribution (qisas-e-nafs), which means execution in the case of intentional murder, and in cases of intentional battery, the amputation of the limb that was lost; or they can choose to forgive the perpetrator. If they forgive the perpetrator, they can receive blood money compensation (diyya) for the loss of life/limb/injury. The sharia judge can only convict someone for a qisas crime, the victim/victim’s family determines the punishment. However, if the victim’s family pardons the criminal, in addition to the sharia punishment the criminal would normally receive a tazir prison sentence (such as ten to twenty years in prison) for crimes such as “intentional loss of life”, “tazir assault and battery” “disturbance of the peace”, and so forth. However, if the murder/injury was unpremeditated (such as during a fight or if there were mitigating factors), then the person would be released after paying the blood money, or spend a short time in prison.

Semi-intentional murder/injury is rarely applied, only if a person carried out an act that would not normally be dangerous/lethal, but it resulted in death/injury. In most cases, semi-intentional murder/injury would be prosecuted as intentional murder/battery. And lastly, unintentional murder/battery is when the crime was clearly accidental. This is punishable by only paying diyya, If the perpetrator cannot afford the blood money, he/she can fast for two months straight to be fogiven. Neither semi-intentional or unintentional murder/injury is punishable by qisas.

This differs significantly from civil law and common law. In sharia law, murder and injury is seen as a tort, and the victim could either forgive the perpetrator or have him/her punished with the same injury/death inflicted (eye for an eye) if it was intentionally committed. Unlike common and civil law, there are very few mitigating factors for the death penalty, often those who murder under any circumstances would either die or be forgiven by the victim’s family (Thou shalt not kill). As a result, those who kill others (non-accidentally), even in arguments, crimes of passion, and self-defense could be put to death, or have pay blood money. Sharia law in theory sees no homicide as “justifiable homicide”, and if homicide is carried out, the person either forfeits his own life or pays for the blood of the murder victim. However, the sharia judge could recommend to the family to either give mercy to the murderer or allow them to die. Traditionally, the next of kin of the victim would carry out the execution, or the victim himself/herself would inflict the injury.

The mitigating factors to qisas are: -A father who murders his child cannot be punished by qisas (he can be punished by tazir penalty and executed/imprisoned, thus he cannot receive diyya for murdering his own child). If a mother killed her child, such as infanticide, the mother would pay diyya to charity or receive qisas. -A person who murders a spouse/lover caught in the act of adultery (only if the murderer has four witnesses, if he/she does, would receive tazir imprisonment). -Self defense murder (if there are two witnesses who can prove it was self-defense, or if crime is deemed to be manslaughter). -If the person was insane/retarded, then it would be considered semi-intentional murder. -If a person was under the legal age (typically 15–18 years of age). -If the person murdered on the orders of another, the mastermind would receive qisas/diyya, the actual murderer would receive tazir sentence (which would be death or imprisonment depending on whether the family forgave the mastermind). If someone induced a minor or an insane person to murder, -If it was an abortion, usually measured after three months in a pregnancy, the woman may pay 1/10 of the blood money to charity or face imprisonment (not qisas). If somebody forced a woman to have a miscarriage, the rule is the same.

If the next of kin forgave the murderer/injurer, he/she can ask for diyya (blood money). Traditionally, it is worth the equivalent of 100 camels in cash for a death, and lesser amounts for small body injuries. However, in serious injuries, such as those resulting in paralysis, the perpetrator must pay the victm their full blood money. Men receive twice as much blood money as a woman. That is because if a man, who by law should be the provider for his family is injured/killed, the family could be further compensated for the loss/disability of their breadwinner. However, more often blood money is settled through negotiation, and the sum could be more or less than the official amount, thus allowing women to receive more equal amounts as well.

The second category of crimes is hudud (or hadd). Hudud crimes are crimes whose penalties were laid down by the Quran, and are considered to be “claims against God”. The hudud crimes are:

  • adultery (zina), which includes adultery, fornication, incest/pedophilia, rape, and pimping
  • apostasy/blasphemy
  • defamation (meaning false accusation of any of these things)
  • sodomy/lesbianism (or sodomy rape)

Hudud penalties for these cases are not punishments tailored to the offense, but are intended to be deterrents, setting an example for the general public and prosecuting the most flagrant violations. The process is extremely exacting: at least two witnesses are required to corroborate the evidence, with four witnesses required in the case of sex crimes, so that in most such cases the most severe penalties are difficult, if not impossible, to impose. Circumstantial evidence is not allowed to be part of the testimony. When the severest penalties are imposed, the case is usually so obvious, obscene or flagrant that conviction is virtually inevitable.

Very often, Westerners mistake hudud punishment for the punishment regularly given under sharia law, but that is inaccurate; hudud punishments are only meant as a deterrent for rare cases. Most punishments are given under tazir rules.

As a result most countries with classical sharia law formally use the hudud penalty only rarely.

The third category of crimes is tazir. It covers all other offenses not mentioned already. It is a “claim of the state” and it receives a discretionary sentence. The punishment may not be more severe than the punishment of a hudud crime. It can range, depending on the crime or circumstances, from death to imprisonment to even community service. Circumstantial evidence is allowed in court, and most countries prosecute their non-murder crimes as tazir crimes, due to the flexibility of the evidence-gathering and sentencing. The punishment is meant to fit the crime. For example, a rapist may not be able to be prosecuted for zina, but would still be convicted of tazir rape, or in theft, they would be found guilty of tazir theft and given prison time rather than amputation. A murderer would still spend time in prison if he had received the forgiveness of the family. The heavy hudud penalties of amputation and stoning are not applied (although some countries do use corporal punishment).

A fourth and lesser known category is “siyastan”. A siyastan penalty is a punishment that is created on the authority of the government of the county. While it cannot contadict the provisions of sharia, it is not derived from sharia. For example, treason against the ruling system historically would be considered a siyastan crime. Beginning with the Ottoman Empire, many modern sharia jurisdictions have created penal law codes (Qanun) that covers areas that are not specifically mentioned in sharia law, although they may not contradict sharia law. Traffic penalties are a modern example. Another modern example is drug trafficking. Most modern countries using sharia law punish that crime with penal laws created by the government (often with death/imprisonment). It does not contradict sharia, because it is viewed as a crime that is “spreading corruption on the earth” (fasad-fel-arz).

The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.[118][119] A confession, an oath, or the oral testimony of a witness are the main evidence admissible in a hudud case, written evidence is only admissible when deemed reliable by the judge, i.e., notaries.[120] Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character; testimony to establish the crime of adultery, or zina must be from four direct witnesses.[121] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.[122] Testimony from women is given only half the weight of men, and testimony from non-Muslims may be excluded altogether (if against a Muslim). Non-Muslim minorities, however, could and did use sharia courts, even amongst themselves.[123]

Sharia’s rules on written evidence necessarily diminish the utility of written contracts to structure economic relations, and Timur Kuran has noted the predominance of a “largely oral contracting culture” in pre-modern Islamic society.[124]

In lieu of written evidence, oaths are accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.[125] Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often “maintain their testimony ‘right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case.”[126] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[126] instead oaths are a solemn procedure performed as a final part of the evidence process.

In some countries, sharia courts, with their tradition of pro se representation, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, juries and voir dire proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings. This can provide significant increases in speed and efficiency, and can be an advantage in jurisdictions where the general court system is slow or corrupt, and where few litigants can afford lawyers. In Nigeria, where imposition of sharia was highly controversial, even Nigeria’s justice minister was compelled to admit that in sharia courts, “if a man owes you money, you can get paid in the evening. Whereas in the regular courts, you can sit in court for ten years and get no justice.”[127] In places using sharia law such as Iran and Pakistan, while having a fixed legal system, with prosecuters, appeals courts and a supreme court, and a definite civil law style penal code, they are still heavily based on the informality and simplicity of a “pure” sharia court, and trials often still take a matter of hours or sometimes days.

Penalties

The punishment depends on whether the criminal was convicted of qesas, hudud or tazir.

In a tazir crime, the penalty would be usually a prison sentence, corporal punishment in some countries, or a execution in a very serious case. Since hudud crimes are extremely hard to punish, this is the usual route that would be taken. Stoning and amputation would certainly not be carried out in a tazir sentence, and the punishment would not be fixed, but discretionary. This allows the judge to have the authority to give a punishment that fits the crime.

In the rarest of rare case when a person is convicted of a hudud crime, the punishment is much harsher.

In accordance with the Quran and several hadith, theft is punished by imprisonment or amputation of hands.[128] Several requirements are in place for the amputation of hands, 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.

All of these must be met under the scrutiny of judicial authority.[Quran 5:38][129]

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[130] For unmarried men and women, the punishment prescribed in the Quran and hadith is 100 lashes.[131]

The “four witness” standard comes from the Quran 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.”[Quran24:13]

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

“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.”[Quran24:2] “Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).”[Quran17:32]

Rape is punishable by death in sharia law. However there is some dispute as to which crime it is a part of. In some countries, like Pakistan, rape is considered to be a part of adultery (zina). This has led to some cases where rapists were unable to be punished due to the rape victim lacking 4 witnesses. However, in most countries, such as the United Arab Emirates, rape is considered a part of armed robbery (hiraba), making it easier to convict rapists. However, in most cases, rape is punished as a tazir crime, which could still be the death penalty. Many rape cases are settled out of court, with the rapist paying monetary compensation (jirah) to the victim, and in some cases they pay diyya for injuries inflicted.

Leaving Islam/Apostasy

In most interpretations of sharia, conversion by Muslims to other religions or becoming non-religious, is strictly forbidden and is termed apostasy. Non-Muslims, however, are allowed to convert into Islam.[132] Muslim theology equates apostasy to treason, and in some 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.[citation needed]

The accusation of apostasy may be used against non-conventional interpretations of the Quran. The severe persecution[weasel words] of the famous expert in Arabic literature, Nasr Abu Zayd, is an example of this.[133] Similar accusations and persecutions[weasel words] were famously leveled against the author Salman Rushdie.[134][not in citation given]

Dietary

Islamic law does not present a comprehensive list of pure foods and drinks. However, it prohibits:[135]

  • Swine, blood, the meat of already dead animals and animals slaughtered in the name of someone other than God.
  • Slaughtering an animal in any other way except the prescribed manner of tazkiyah (cleansing) by taking God’s name, which involves cutting the throat of the animal and draining the blood. 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.[136]
  • Intoxicants

The prohibition of dead meat is not applicable to fish and locusts.[137][138][139] Also hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,[140] Jallalah (animals whose meat carries a stink in it because they feed on filth),[141] tamed donkeys,[142] and any piece cut from a living animal.[135][143]

Liquor and gambling

Liquor and gambling are expressly prohibited in the Quran, and sharia law.

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.[144]

Customs and behaviour

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.[145] 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.[146]
  • Using the right hand for drinking and eating.[147]
  • Saying “As-Salaam Alaikum” (peace be upon you) when meeting someone and answering with “Wa ‘alaikumus salam” (and peace be upon you).[148]
  • Saying “Alhamdulillah” (all gratitude is for only God) when sneezing and responding with “Yarhamukallah” (God have mercy on you).[149]
  • 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[150][151]
    • Cleaning the nostrils, the mouth, and the teeth[152] and
    • Cleaning the body after urination and defecation[153]
  • Abstention from sexual relations during the menstrual cycle and the puerperal discharge,[Quran2:222] and ceremonial bath after the menstrual cycle, and Janabah (seminal/ovular discharge or sexual intercourse).[Quran4:43][Quran5:6]
  • Burial rituals include funeral prayer[154] of bathed[155] and enshrouded body in coffin cloth[156] and burying it in a grave.[157]

Rituals

There are two festivals that are considered Sunnah.[157][158]

Rituals associated with these festivals:[157]

  • Sadaqah (charity) before Eid ul-Fitr prayer.[159]
  • 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., the 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.[160]

Dress codes

The Quran 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.”[Quran24:30] Allah then says in the Quran, “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 sharia law, women are required to cover all of their bodies except hands and face.[161][162] Covering the face is the subject of some divergence of opinion amongst the scholars – some consider it to be compulsory since the face is the major source of attraction, whilst others consider it to be highly recommended. The rationale given for these rules is that men and women are not to be viewed as sexual objects. Men are required to keep their guard up and women to protect themselves. In theory, should either one fail, the other prevents the society from falling into fitna (temptation or discord).

There are many different opinions, however, as to whether the veil or headscarf is a real Quranic obligation. Some scholars such as Yusuf al-Qaradawi claim it is, while others, such as Mohammed Arkoun, Soheib Bencheikh, Abdoldjavad Falaturi, Gamal al-Banna claim it is not. However, the first group appears dominant:[161] “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.”[163]

Historical developments and contemporary issues

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.[164]
  • Reformers believe that new Islamic legal theories can produce modernized Islamic law[165] and lead to acceptable opinions in areas such as women’s rights.[166] However, traditionalists believe that any departure from the legal teachings of the Quran as explained by the Prophet Muhammad and put into practice by him is an alien concept that cannot properly be attributed to “Islam”.

Contemporary practice

There is tremendous variety in the interpretation and implementation of Islamic law in Muslim societies today. Liberal movements within Islam have questioned the relevance and applicability of sharia from a variety of perspectives; Islamic feminism brings multiple points of view to the discussion. Some countries, such as Saudi Arabia fully use sharia and have no constitution or legal code. Others, such as Pakistan and Iran have constitutions, but they reflect the principles of sharia, and have sharia legal systems with corresponding civil laws (qanun). Some of the largest Muslim countries, including Indonesia and Bangladesh have largely secular constitutions and laws, but with Islamic law provisions in family law. However, most of their secular laws still do not contradict sharia law. Turkey has a constitution that is officially strongly secular, and has virtually no resemblance to sharia law. India and the Philippines have fully 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, newspapers in the United Kingdom stated the government had “quietly sanctioned” the recognition of sharia courts. This refers 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 did not break new ground: the decisions of similar Jewish beth din court arbitrations have been recognized in England for over 100 years.[167] 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, while Somaliland, and Maldives adopted sharia in legal aspects but with a western style of judiciary system (Common law or civil law). 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 if they choose a sharia court (e.g. marriage, divorce, guardianship). Judges’ salaries are paid by the state.[168] Lebanon also incorporates sharia law for Muslims in family matters.[169] Some states in northern Nigeria have reintroduced sharia courts.[170] In practice the new sharia courts in Nigeria have most often meant the reintroduction 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.[171]

Many Westerners consider the punishments prescribed by some countries’ interpretation of Islamic law to be “barbaric and cruel”. Islamic scholars argue that, if implemented properly, the punishments serve as a deterrent to crime.[172] 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.[173]

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”.[174][175][176]

Contemporary issues

Democracy

Sharia law involves elements of a democratic system, namely electoral procedure, though syntax as to what a “democracy” constitutes leaves this in question.[177] Legal scholar L. Ali Khan argues 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”.[178][179]

However, European and American courts have generally ruled against the implementation of Sharia law, both in jurisprudence and within a community context, based on Sharia’s religious background. Whereas groups within a number of nations are actively seeking to implement Sharia law, in 1998 the Constitutional Court of Turkey banned and dissolved Turkey’s Refah Party on the grounds that “Democracy is the antithesis of Sharia”, the latter of which Refah sought to introduce.

On appeal by Refah the European Court of Human Rights determined that “sharia is incompatible with the fundamental principles of democracy”.[180][181][182] 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”.[183]

Human rights

Cairo Declaration on Human Rights in Islam

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 secular understanding of the Judeo-Christian tradition”, which could not be implemented by Muslims without trespassing the Islamic law. Therefore in 1990 the Organisation of the Islamic Conference, a group representing all Muslim majority nations, adopted the Cairo Declaration on Human Rights in Islam.

Ann Elizabeth Mayer points to notable absences from the Cairo Declaration: provisions for democratic principles, protection for religious freedom, freedom of association and freedom of the press, as well as equality in rights and equal protection under the law. Article 24 of the Cairo declaration states that “all the rights and freedoms stipulated in this Declaration are subject to the Islamic shari’a“.[184]

Professor H. Patrick Glenn asserts that the European concept of human rights developed in reaction to an entrenched hierarchy of class and privilege contrary to, and rejected by, Islam. As implemented in sharia law, protection for the individual is defined in terms of mutual obligation rather than human rights. The concept of human rights, as applied in the European framework, is therefore unnecessary and potentially destructive to Islamic societies.[185]

Many secularist, human rights, and leading organisations have criticized Islamic states’ stance on human rights. In 2009, the journal Free Inquiry summarized this criticism in an editorial: “We are deeply concerned with the changes to the Universal Declaration of Human Rights by a coalition of Islamic states within the United Nations that wishes to prohibit any criticism of religion and would thus protect Islam’s limited view of human rights. In view of the conditions inside the Islamic Republic of Iran, Egypt, Pakistan, Saudi Arabia, the Sudan, Syria, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam.”[186]

Freedom of speech

Qadi ‘Iyad argues that insulting the Prophet Muhammad is prohibited. Such criticism is blasphemy and punishable by death.

Slander, gossip, and backbiting, or “ghiba” is regarded as a major sin in the Sharia law.[187]

Homosexuality

Homosexual activity is illegal under sharia, though the prescribed penalties differ from one school of jurisprudence to another. For example, these Muslim-majority countries may impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,[188] Nigeria,[189] Saudi Arabia,[190] Somalia.[191] In contrast, in some Muslim-majority countries such as Indonesia (outside of Aceh province),[192] Jordan, Egypt and Iraq, same-sex sexual acts are illegal but there is no specific penalty.[193] In Turkey, homosexual acts in private between consenting individuals are legal.

Women

In terms of religious obligations, such as certain elements of prayer, payment of the zakat poor-tax, observance of the Ramadan fast, and the Hajj pilgrimage, women are treated no differently from men. There are, however, some exceptions made in the case of prayers and fasting, as women are relieved from the duty of the five daily prayers or fasting during their menstruation.

There are no priests or clergy needed in order to perform rites and sacraments in Islam. The leader of prayer is known as an imam. Men can lead both men and women in prayer, but women do not traditionally lead men in prayer.[194] In practice, it is much more common for men to be scholars than women, however in the early days of Islam, female scholars were much more common.[195] 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.”[196] Married women have the right to 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.[197] Islam grants women the right to inherit property from other family members, and these rights are detailed in the Quran. A woman’s inheritance is different from a man’s, both in quantity and attached obligations.[Quran4:12] For instance, a daughter’s inheritance is usually half that of her brother’s.[Quran4:11] Sharia law requires family members females or males to support each other as needed; compare female inheritance in Salic law. Men are fully obliged to financially maintain their household, whereas women are not; it is often said that even if the woman is a millionaire and he is poor, he is still obliged to spend on her. She is not obliged to share her wealth with her husband unless she does so out of kindness.

Islamic jurists have traditionally held that Muslim women may enter into marriage with only Muslim men,[198] although some contemporary jurists question the basis of this restriction.[198][199][200] On the other hand, the Quran allows a Muslim man to marry a chaste woman from the People of the Book, a term that includes Jews, Sabians, and Christians.[198][Quran5:5] However, fiqh lawhas held that it is makruh (reprehensible) for a Muslim man to marry a non-Muslim woman in a non-Muslim country.[198]

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.[201]

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.[109] If the couple has divorced fewer than three times (meaning it is not a final divorce) the wife also receives spousal support for three menstrual cycles after the divorce, until it can be determined whether she is pregnant.[110]

Historically, Islamic law granted women certain legal rights that Western legal systems did not grant women until the 20th century.[202] Noah Feldman, a Harvard University law professor, has noted:

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.[203]

Since the 20th century, Western legal systems have generally allowed for “greater women’s rights” than Islamic law.[204]

Slavery and emancipation

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 a certain period of time, if they accepted to convert to Islam, or if they were ransomed.

Sharia and non-Muslims

Based on Quranic verses and Islamic traditions, classical sharia distinguishes between Muslims, followers of other Abrahamic monotheistic religions, and pagans or people belonging to other polytheistic religions. As monotheists, Jews and Christians have traditionally been considered “People of The Book,” and afforded a special status known as dhimmi derived from a theoretical contract – “dhimma” or “residence in return for taxes”. There are parallels for this in Roman and Jewish law.[205] Hindus were originally considered pagans and given the choice between conversion to Islam and death (or slavery), as pagans are not afforded the rights and protections of the dhimma contract.[206] By the Middle Ages, the Hindus and Buddhists of India had come to be considered dhimmis by their Muslim rulers.[207] Eventually, the largest school of Islamic scholarship applied this term to all non-Muslims living in Islamic lands outside the sacred area surrounding Mecca, Saudi Arabia.[208]

http://upload.wikimedia.org/wikipedia/commons/thumb/e/e3/Ground_Zero_Mosque_Protesters_11.jpg/220px-Ground_Zero_Mosque_Protesters_11.jpg

 

A protester opposing the Park51 project, carries an anti-Sharia sign.

Classical sharia attributes different legal rights and obligations to different religious groups; in practice, this consisted of curbs on the rights and freedoms of non-Muslims.[209] However, the classical dhimma contract is no longer enforced. Western influence has been instrumental in eliminating the restrictions and protections of the dhimma contract, thereby contributing to the current state of relations between Muslims and non-Muslims living in Islamic lands.[210]

According to law professor H. Patrick Glenn of the Canadian McGill University, located in Montreal, Quebec, “[t]oday it is said that the dhimmi are ‘excluded from the specifically Muslim privileges, but on the other hand they are excluded from the specifically Muslim duties’ while (and here there are clear parallels with western public and private law treatment of aliens – Fremdenrecht, la condition de estrangers), ‘[f]or the rest, the Muslim and the dhimmi are equal in practically the whole of the law of property and of contracts and obligations’.”[211]

Classical sharia incorporated the religious laws and courts of Christians, Jews and Hindus, as seen in the early Caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system.[212][213] 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.[214] These courts did not cover cases involved other religious groups, or capital offences or threats to public order. By the 18th century, however, dhimmis frequently attended the Ottoman Muslim courts, where cases were taken against them by Muslims, or they took cases against Muslims or other dhimmis. Oaths sworn by dhimmis in these courts were tailored to their beliefs.[215]

Non-Muslims were allowed to engage in certain practices (such as the consumption of alcohol and pork) that were usually forbidden by Islamic law. Zoroastrian “self-marriages”, that were considered incestuous under sharia, were also tolerated. Ibn Qayyim (1292–1350) opined that non-Muslims were entitled to such practices since they could not be presented to sharia courts and the religious minorities in question held it permissible. This ruling was based on the precedent that the prophet Muhammad did not forbid such self-marriages among Zoroastrians despite coming into contact with Zoroastrians and knowing about this practice.[216] Religious minorities were also free to do whatever they wished in their own homes, provided they did not publicly engage in illicit sexual activity in ways that could threaten public morals.[217]

Parallels with Western legal systems

Comparisons with common law

Parallels to common law concepts are found in classical Islamic law and jurisprudence including ratio decidendi (illah). Several fundamental common law institutions may have been 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, and also by Crusaders during the Crusades. In particular, 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.”[citation needed] The English trust and agency institutions in common law were possible adapted from the Islamic Waqf and Hawala institutions respectively during the Crusades. It is worth noting, however, that transferring property to another for the “use” of another developed largely in response to the requirements of feudal inheritance law. Trust law, in particular, is a creature of equity which derived from the parallel jurisdiction of the Lord Chancellor to decide matters independently to the Royal Courts.

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” and the “European commenda” (Islamic Qirad) may have also originated from Islamic law. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for “the common law as an integrated whole”.[218]

Comparisons with civil law

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.[73] The “European commendalimited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.[72]

International law

Islamic law also made “major contributions” to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways.[219][220] 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.[219]

Legal education

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.[221]

Role in economic development and corporate law

Sharia classically recognizes only natural persons, and never developed the concept of a legal person, or corporation, i.e., a legal entity that limits the liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives.[222] Thus, sharia has no native tradition of corporate law. This, combined with egalitarian rules of inheritance for male descendants (compare with primogeniture), hindered the concentration of wealth and the development of larger and more sophisticated enterprises, according to Timur Kuran of American Duke University, located in Durham, North Carolina. Prohibitions on interest, or “riba” also disadvantaged Muslims vis-à-vis non-Muslim minorities in accessing banks and insurance when these services were first introduced by Westerners. Interest prohibitions, also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.[223] Such factors, according to Kuran, have played a significant role in retarding economic development in the Middle East.[224] Though, it is argued, the West caught up in the economic crises at the outset of the 21st century when many of the aforementioned economic policies backfired on a global scale and threatened to bankrupt entire countries.

Qanun

After the fall of the Abbasids in 1258, a practice known to the Turks and Mongols transformed itself into Qanun, which gave power to caliphs, governors, and sultans alike to “make their own regulations for activities not addressed by the sharia.”[225] The Qanun began to unfold as early as Umar I (586-644 CE).[225] 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.[225] Qanun in Arabic means law or rules.

References

1.       ^ Ritter, R.M. (editor) (2005). New Oxford Dictionary for Writers and Editors – The Essential A-Z Guide to the Written Word. Oxford: Oxford University Press. p. 349.

2.       ^ Hamann, Katie (December 29, 2009). “Aceh’s Sharia Law Still Controversial in Indonesia”. Voice of America. Retrieved September 19, 2011.

3.       ^ Iijima, Masako (January 13, 2010). “Islamic Police Tighten Grip on Indonesia’s Aceh”. Reuters. Retrieved September 18, 2011.

4.       ^ “Aceh Sharia Police Loved and Hated”. The Jakarta Post.

5.       ^ Staff (January 3, 2003). “Analysis: Nigeria’s Sharia Split”. BBC News. Retrieved September 19, 2011. “Thousands of people have been killed in fighting between Christians and Muslims following the introduction of sharia punishments in northern Nigerian states over the past three years”.

6.       ^ Harnischfeger, Johannes (2008).
• p. 16. “When the Governor of Kaduna announced the introduction of Sharia, although non-Muslims form almost half of the population, violence erupted, leaving more than 1,000 people dead.”
• p. 189. “When a violent confrontation loomed in February 200, because the strong Christian minority in Kaduna was unwilling to accept the proposed sharia law, the sultan and his delegation of 18 emirs went to see the governor and insisted on the passage of the bill.”

7.       ^ Mshelizza, Ibrahim (July 28, 2009). “Fight for Sharia Leaves Dozens Dead in Nigeria – Islamic Militants Resisting Western Education Extend Their Campaign of Violence”. The Independent. Retrieved September 19, 2011.

8.       ^ “Nigeria in Transition: Recent Religious Tensions and Violence”. PBS.

9.       ^ Staff (December 28, 2010). “Timeline: Tensions in Nigeria – A Look at the Country’s Bouts of Inter-Religious and Ethnic Clashes and Terror Attacks”. Al Jazeera English. Retrieved September 19, 2011. “Thousands of people are killed in northern Nigeria as non-Muslims opposed to the introduction of sharia, or Islamic law, fight Muslims who demand its implementation in the northern state of Kaduna.”.

10.    ^ Ibrahimova, Roza (July 27, 2009). “Dozens Killed in Violence in Northern Nigeria” (video (requires Adobe Flash; 00:01:49)). Al Jazeera English. Retrieved September 19, 2011. “The group Boko Haram, which wants to impose sharia (Islamic law) across the country, has attacked police stations and churches.”

11.    ^ [1]. Library of Congress Country Studies: Sudan:. “The factors that provoked the military coup, primarily the closely intertwined issues of Islamic law and of the civil war in the south, remained unresolved in 1991. The September 1983 implementation of the sharia throughout the country had been controversial and provoked widespread resistance in the predominantly non-Muslim south … Opposition to the sharia, especially to the application of hudud (sing., hadd), or Islamic penalties, such as the public amputation of hands for theft, was not confined to the south and had been a principal factor leading to the popular uprising of April 1985 that overthrew the government of Jaafar an Nimeiri”.

12.    ^ “PBS Frontline: “Civil war was sparked in 1983 when the military regime tried to impose sharia law as part of its overall policy to “Islamicize” all of Sudan.””. Pbs.org. http://www.pbs.org/frontlineworld/stories/sudan/facts.html. Retrieved 2012-04-04.

13.    ^ [dead link][clarification needed]“The war flared again in 1983 after then-President Jaafar Nimeri abrogated the peace accord and announced he would turn Sudan into a Muslim Arab state, where Islamic law, or sharia, would prevail, including in the southern provinces. Sharia can include amputation of limbs for theft, public flogging and stoning. The war, fought between the government and several rebel groups, continued for two decades.” (PDF; requires Adobe Reader). The Washington Post.

14.    ^ Tibi, Bassam (2008). Political Islam, World Politics and Europe. Routledge. p. 33. “The shari’a was imposed on non-Muslim Sudanese peoples in September 1983, and since that time Muslims in the north have been fighting a jihad against the non-Muslims in the south.”

15.    ^ “About the Author” at Brotherhood of the Gods Paperback by Irshad Abdal-Haqq, Amazon.com

16.    ^ Irshad Abdal-Haqq founded the Journal of Islamic Law (later renamed the Journal of Islamic Law & Culture), for which he wrote extensively until January 2002, when ownership was transferred to DePaul University.[15]

17.    ^ a b 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.

18.    ^ a b Weiss, Bernard G. (1998). The Spirit of Islamic Law. Athens, Georgia: University of Georgia Press. p. 17. ISBN 978-0-8203-1977-3.

19.    ^ Bernard G. Weiss, Amazon.com

20.    ^ As of 2011[update],Bernard G. Weiss is a professor of Arabic and Islamic studies at the Middle East Center of the University of Utah.[18][19]

21.    ^ Omar, Abdul Mannân (2003). The Dictionary of the Holy Qur’ân – Arabic Words, English Meanings with Notes – Classical Arabic Dictionaries Combined. Hockessin, Delaware: NOOR Foundation International. p. 287. ISBN 978-0-9632067-8-7.

22.    ^ Esposito (2004), “Shariah”, pg. 288

23.    ^ Calder, N. “Sharīa.” Encyclopaedia of Islam. “Within Muslim discourse, sharia designates the rules and regulations governing the lives of Muslims, derived in principle from the Kuran and hadith. In this sense, the word is closely associated with fiḳh [q.v.], which signifies academic discussion of divine law.”

24.    ^ a b Gibb, Hamilton Alexander Rosskeen (1970). Mohammedanism – An Historical Survey. Oxford University Press. p. 68. ISBN 0-19-500245-8.

25.    ^ a b Hunt Janin and Andre Kahlmeyer in Islamic Law: the Sharia from Muhammad’s Time to the Present by Hunt Janin and Andre Kahlmeyer, McFarland and Co. Publishers, 2007, p. 3.

26.    ^ The Sharia and The Nation State: Who Can Codify the Divine Law? p.2. Accessed 20 September 2005.

27.    ^ Basim Musallam, The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press, 1996, p. 176.

28.    ^ Marshall Hodgson, The Venture of Islam Conscience and History in a World Civilization Vol 3. University of Chicago, 1958, pp. 105–108.

29.    ^ Marshall Hodgson, The Venture of Islam Conscience and History in a World Civilization Vol 3. University of Chicago, 1958, pp. 176–177.

30.    ^ Sarah Ansari, The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press, 1996, p. 90.

31.    ^ Marshall Hodgson, The Venture of Islam Conscience and History in a World Civilization Vol 3. University of Chicago, 1958, pp. 366–367.

32.    ^ Ansari, Sarah. The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press, 1996, pp. 103– 111.

33.    ^ Hodgson, Marshall. The Venture of Islam Conscience and History in a World Civilization Vol 3. University of Chicago, 1958, pp. 384–386.

34.    ^ Stadnke (2008), p. 3

35.    ^ Ramadan (2006), p.4

36.    ^ Ramadan (2006), p.12-13

37.    ^ a b Glenn, H. Patrick (2007). p. 199.

38.    ^ a b c d e Ramadan (2006), p.5-7

39.    ^ “by the Ahlul Bayt DILP – Hawza – Advanced Islamic Studies”. Al-islam.org. http://al-islam.org/index.php?t=258&cat=258. Retrieved 2012-04-04.

40.    ^ a b Glenn, H. Patrick (2007). p. 201.

41.    ^ Hallaq 1997, Brown 1996, Aslan 2006.

42.    ^ Esposito, John L. (2010). The Future of Islam. Oxford University Press. p. 74–77.

43.    ^ Otto, Jan Michiel (2008). p. 10.

44.    ^ Otto, Jan Michiel (2008). p. 9.

45.    ^ Chioma Daisy Ebeniro, PhD (April 2011). “The Problems of Administration of Justice on Female Offenders in Nigeria”. African Journal of Criminology and Justice Studies 4 (2). ISSN 1554-3897. http://www.umes.edu/WorkArea/showcontent.aspx?id=33898. Retrieved June 26, 2011.

46.    ^ Otto, Jan Michiel (2008). p. 8.

47.    ^ Otto, Jan Michiel (2008). pp. 8–9.

48.    ^ Lapidus, Ira (1996). The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press. pp. 293–296 see Bibliography for Conclusion.

49.    ^ “The Second Era of Ijtihad”. 1 St. Thomas University Law Review. 341.

50.    ^ Lapidus, Ira (edited by Francis Robinson) (1996). The Cambridge Illustrated History of the Islamic World. Cambridge University Press. p. 292. see Bibliography for Conclusion.

51.    ^ Lapidus, Ira (1996). The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press, 1996, pp. 292–293 see Bibliography for Conclusion.

52.    ^ a b Lapidus, Ira (1996). The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press p. 296. see Bibliography for Conclusion.

53.    ^ Hodgson, Marshall (1958). The Venture of Islam Conscience and History in a World Civilization Vol 3. University of Chicago.p. 386–392.

54.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 4.

55.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 100.

56.    ^ Ira Lapidus, The Cambridge Illustrated History of the Islamic World edited by Francis Robinson. Cambridge University Press, 1996, pp. 297-298 see Bibliography for Conclusion.

57.    ^ Horrie, Chris; Chippindale, Peter (1991). pp. 96–100.

58.    ^ “You shall not find a change in Allah’s course.” TMQ 48:23

59.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). Introduction p. viii. “While such affiliations, and indeed much of what can be termed traditional Sunni Islam, have not been spared the criticism of certain post-Caliphal Muslim writers and theorists, the authors of the present volume and their positions do represent the orthodox Muslim intellectual and spiritual heritage that has been the strength of the Community for over a thousand years, and the means through which Allah has preserved His religion, in its purest and fullest sense, to the present day.”

60.    ^ Otto, Jan Michiel (2008). p. 30.

61.    ^ Hodgson, Marshall (1958). The Venture of Islam Conscience and History in a World Civilization Vol 1. University of Chicago. pp. 155–156.

62.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 16.

63.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 15.

64.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 17.

65.    ^ Hodgson, Marshall (1958). The Venture of Islam Conscience and History in a World Civilization Vol 1. University of Chicago. p. 187.

66.    ^ a b c Coulson, Noel James. A history of Islamic law (Islamic surveys). Oxford: University Press, 1964.

67.    ^ Liebesny, Majid &, and Herbert J. (Editors) Khadduri. Law in the Middle East: Volume I: Origin and Development of Islamic Law. Washington D.C.: The Middle East Institute, 1955.

68.    ^ a b Dien, Mawil Izzi. Islamic Law: From Historical Foundations To Contemporary Practice. Notre Dame: University of Notre Dame Press, 2004.

69.    ^ a b Berg, Herbert. “Islamic Law.” Berkshire Encyclopedia of World History 3 (2005): 1030.

70.    ^ Weiss (2002), pp. 3, 161.

71.    ^ Weiss (2002). p. 162.

72.    ^ a b Makdisi 1999

73.    ^ a b (Badr 1978, pp. 196–8)

74.    ^ (El-Gamal 2006, p. 16)

75.    ^ Makdisi 2005.

76.    ^ a b c d e Horrie, Chris; Chippindale, Peter (1991). p. 46.

77.    ^ a b Horrie, Chris; Chippindale, Peter (1991). pp. 46–47.

78.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 49–100.

79.    ^ Horrie, Chris; Chippindale, Peter (1991). pp. 36–37.

80.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 101–219.

81.    ^ Horrie, Chris; Chippindale, Peter (1991). pp. 33–37.

82.    ^ al-Misri, Ahmad ibn Naqib. Reliance of the Traveler (edited and translated by Nuh Ha Mim Keller), pp. 220–243.

83.    ^ [2]. Ahlul Bayt Digital Islamic Library Project.

84.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 244–276.

85.    ^ Horrie, Chris; Chippindale, Peter (1991). pp. 37–38.

86.    ^ Locke, D. C. 1997, ” Increasing Multicultural Understanding: A Comprehensive Model, 2nd ed. Sage Publications, p. 217-18.

87.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 277–296.

88.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 38.

89.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 297–370.

90.    ^ Horrie, Chris; Chippindale, Peter Chippindale (1991). pp. 39–43.

91.    ^ Glenn, H. Patrick (2007). p. 183.

92.    ^ Glenn, H. Patrick (2007). p. 184.

93.    ^ Glenn, H. Patrick (2007). p. 185.

94.    ^ Crotty, James (2009). “Structural Causes of the Global Financial Crisis – A Critical Assessment of the ‘New Financial Architecture'”. Cambridge Journal of Economics. Oxford University Press. Volume 33, Number 4. p. 565. Oxfordjournals.org.

95.    ^ Glenn, H. Patrick (2007). p. 286.

96.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 371–459.

97.    ^ Horrie, Chris; Chippindale, Peter (1991). p. 52. This is so because it is considered the responsibility of the males in the family to take care of the women, their sisters (if they are unmarried) and their mothers.[clarification needed]

98.    ^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 462–464.

99.    ^ Marshall Hodgson (1958). The Venture of Islam Conscience and History in a World Civilization Vol 1. University of Chicago. p. 343.

100.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 460–505.

101.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). p. 521.

102.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). p. 522.

103.^ Islamic Law, الشريعة الإسلامية, islamic law sharia[dead link]

104.^ a b Pohl, Florian (2010). “Polygamy”. Modern Muslim Societies. Marshall Cavendish. ISBN 978-0-7614-7927-7. http://books.google.com/books?id=n4Eye4ilLVkC&pg=PA32.

105.^ Horrie, Chris; Chippindale, Peter (1991). pp. 50–51.

106.^ Horrie, Chris; Chippindale, Peter (1991). p. 51.

107.^ a b c d Horrie, Chris; Chippindale, Peter (1991). p. 52.

108.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 531–532.

109.^ a b “Who has more right to custody in Islam?”. Islam-qa.com. http://www.islam-qa.com/en/ref/8189. Retrieved 2012-04-04.

110.^ a b al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). p. 546 (m 11.10 (2)).

111.^ a b al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). 552–553.

112.^ a b Horrie, Chris; Chippindale, Peter (1991). p. 44.

113.^ Islamic Law – Legal Literature And Institutions, Jurisprudence: The “Sources” of the Law, The Modern Period.

114.^ Hamzeh, A. Nizar (January 1994). “Qatar: The Duality of the Legal System”. Middle Eastern Studies. Vol. 30, No.1. pp.79–90.

115.^ [dead link]Introduction to Islamic Law. Ch. 4, p. 28.

116.^ Saudi Arabia Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Supreme Court of Delaware, January 14, 2005 p. 52. “The Saudi law system differs in critically important respects from the system of legal thought employed by the common law countries, including the United States. Perhaps most significant is that Islamic law does not embrace the common law system of binding precedent and stare decisis. Indeed, in Saudi Arabia, judicial decisions are not in themselves a source of law, and with minor exceptions, court decisions in Saudi Arabia are not published or even open to public inspection.”

117.^ Fatany, Samar (January 31, 2008). “Let Us Codify Shariah Laws”. Arab News. Retrieved September 17, 2011. Codification efforts remain incomplete[clarification needed]

118.^ Fortna, Benjamin C. (March 2011). “Education and Autobiography at the End of the Ottoman Empire”. Die Welt des Islams. New Series, Vol. 41, Issue 1. pp. 1–31. “the literacy rate in the Ottoman Empire in 1900 was between five and ten percent”.

119.^ Hamoud, Hassan R. “Illiteracy in the Arab World”. Background paper prepared for the Education for All Global Monitoring Report 2006, Literacy for Life UNESCO.

120.^ “Introduction to Islamic Law”.

121.^ Ajijola, Alhaji A.D. (1989). Introduction to Islamic Law. Karachi: International Islamic Publishers. p. 133.

122.^ Kamali, Mohammad Hashim (1998). “Punishment in Islamic Law – A Critique of the Hudud Bill of Kelantan, Malaysia”. Arab Law Quarterly. Vol. 13, No. 3. pp. 203–234.

123.^ “Why the Middle East Is Economically Underdeveloped-Historical Mechanisms of Institutional Stagnation”. p. 21. “Some of the reasons non-Muslims used sharia courts included more reliable enforcement, mandatory, if unequal shares in inheritance for women (cf. primogeniture), and the ability to switch between religious jurisdictions at any time, a privilege not available to Muslim litigants.”

124.^ “Explaining the Economic Trajectories of Civilizations – Musings on the Systemic Approach”. pp. 7, 10.

125.^ Lippman, Matthew Ross; McConville, Seán; Yerushalmi, Mordechai (1988). Islamic Criminal Law and Procedure – An Introduction. New York City: Praeger Publishers. p. 71. ISBN 978-0-275-93009-7.

126.^ a b Frank, Michael J. (April 2006). “Trying Times – The Prosecution of Terrorists in the Central Criminal Court of Iraq”. Florida Journal of International Law.

127.^ Staff (September 5, 2002). “The Attractions of Sharia – Nigeria’s Sharia Courts Are Harsh, But Quicker and Cleaner Than Secular Ones”. The Economist. Retrieved September 20, 2011.

128.^ Quran 5:38.

129.^ [dead link] Wiechman, Denis J.; Kendall, Jerry D.; Azarian, Mohammad K. “Islamic Law: Myths and Realities”. muslim-canada.org.

130.^ Sahih al-Bukhari, 8:82:815; Sahih al-Bukhari, 8:82:826.

131.^ Quran 24:2; Sahih al-Bukhari, 8:82:818.

132.^ [3]. Council on Foreign Relations.

133.^ Staff (August 8, 2009). “The Battle for a Religion’s Heart”. The Economist 392(8643): pp. 52–53.

134.^ [not in citation given][4]. The Times.

135.^ a b Ghamidi(2001), The dietary laws

136.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). pp. 364–365.

137.^ Sunan ibn Maja 2314

138.^ Al-Sunan al-Sughra 59

139.^ Al-Zamakhshari. Al-Kashshaf, vol. 1, (Beirut: Daru’l-Kitab al-‘Arabi), p. 215

140.^ Sahih Muslim 1934

141.^ Al-Sunan al-Sughra 4447

142.^ Sahih al-Bukhari 4199

143.^ Sunan Abi Dawood 2858

144.^ Prohibited Sports[dead link]

145.^ Ghamidi (2001). “Sources of Islam”.

146.^ Sunan al-Tirmidhi 1513.

147.^ Sahih Muslim 2020.

148.^ Sahih al-Bukhari 6234.

149.^ Sahih al-Bukhari 6224.

150.^ Sahih Muslim 257.

151.^ Sahih Muslim 258.

152.^ Sahih Muslim 252.

153.^ Sunan Abi Dawood 45.

154.^ Ghamidi. “Various Types of the Prayer”

155.^ Sahih al-Bukhari 1254.

156.^ Sahih Muslim 943.

157.^ a b c Ghamidi (2001). “Customs and Behavioral Laws”.

158.^ Sunan Abu Da’ud 1134.

159.^ Sahih al-Bukhari 1503.

160.^ Ghamidi, “The Ritual of Animal Sacrifice”.

161.^ a b Staff (Haredy, Mohsen – consultant) (July 17, 2011). “Hijab, Recommended or Mandatory?”. onislam.net. Retrieved September 18, 2011.

162.^ Ansari, Ustadha Zaynab (July 3, 2005). “Good Hijab, Bad Hijab?”. SunniPath. Retrieved September 18, 2011.

163.^ [dead link][5] (PDF format; requires Adobe Reader). European Commission’s Bureau of European Policy Advisers (via Europa). p. 75.

164.^ Oliver A Ruebenacker Traditionalist View on Sex Slavery at Averroes Foundation

165.^ Havva G. Guney-Ruebenacker “Islamic Law: An Ever-Evolving Science Under Revelation and Reason” at Averroes Foundation.

166.^ Havva G. Guney-Ruebenacker “Free and Equal Under the Qur’an” at Averroes Foundation

167.^ “Revealed: UK’s First Official Sharia Courts”. The Times.

168.^ Pfeffer, Anshel (February 14, 2008). “Why Islamic Law Is Official in Israel”. The Jewish Chronicle. http://website.thejc.com/printartform.aspx?Aid=58075. Retrieved September 15, 2011.

169.^ Rozenberg, Joshua (October 22, 2008). “Law Lords Say Sharia Is ‘Arbitrary and Discriminatory'”. The Daily Telegraph. http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3239938/Law-lords-say-sharia-is-arbitrary-and-discriminatory.html.

170.^ “The Judiciary”. Online Nigeria. May 1, 2007. http://www.onlinenigeria.com/government/index.asp?blurb=141. Retrieved May 1, 2007.

171.^ Harnischfeger, Johannes (2008).[page needed]

172.^ Little, Jane (June 11, 2003). “Debate Rages over Women and Sharia”. BBC News. http://news.bbc.co.uk/1/hi/2977446.stm. Retrieved May 1, 2007.

173.^ “Human Rights Violations under Sharia in Northern Nigeria”. Human Rights Watch.

174.^ “Draft Law on Indonesia’s Aceh Province To Impose Islamic Law on All Residents[dead link], Associated Press / The Sacramento Bee, May 24, 2006

175.^ England, Vaudine (May 6, 2006). “Indonesia’s Dilemma”. The Standard.

176.^ Taliban-style “Islamic Police Terrorizing Aceh”.[dead link], Deutsche Presse Agentur / ASAP Aceh News, March 10, 2006.

177.^ Benhenda, M.. Liberal Democracy and Political Islam: The Search for Common Ground. SSRN 1475928

178.^ Khan, Ali. “Will The European Court of Human Rights Push Turkey Toward Islamic Revolution?”.

179.^ Khan, L. Ali. A Theory of Universal Democracy: Beyond the End of History, The Hague, Kluwer Law International, 2003, ISBN 90-411-2003-3.

180.^ Judgement in the case of Refah Partisi and Others v. Turkey, Grand Chamber of the European Court of Human Rights, February 13, 2003

181.^ Hearing of the European Court of Human Rights, January 22, 2004 (PDF)

182.^ “ECHR press release Refah Partisi (2001)”. Echr.coe.int. http://www.echr.coe.int/Eng/Press/2001/July/RefahPartisi2001jude.htm. Retrieved 2012-04-04.

183.^ [broken citation]Refah Revisited: Strasbourg’s Construction of Islam, by Christian Moe, Norwegian Institute of Human Rights, published at the site of The Strasbourg Conference.

184.^ Ann Elizabeth Mayer, Islamic Law and Human Rights: Conundrums and Equivocations, chapter 14 in Carrie Gustafson, Peter H. Juviler (eds.), Religion and human rights: competing claims?, Columbia University seminar series, M.E. Sharpe, 1999, ISBN 0-7656-0261-X.

185.^ Glenn, H. Patrick (2007). p. 194.

186.^ Paul Kurtz, Austin Dacey, and Tom Flynn. “Defaming Human Rights”. Free Inquiry. February/March 2009, Vol. 29, No. 2.

187.^ The Quran- An Encyclopedia. Books.google.com. http://books.google.com/books?id=isDgI0-0Ip4C&pg=PA106#v=onepage&q&f=false. Retrieved 2012-04-04.

188.^ “Laws: Iran, GayLawNet”. Gaylawnet.com. http://www.gaylawnet.com/laws/ir.htm#sodomy. Retrieved 2012-04-04.

189.^ Laws,: Nigeria, GayLawNet

190.^ “Laws: Saudi Arabia, GayLawNet”. Gaylawnet.com. 2010-11-08. http://www.gaylawnet.com/laws/sa.htm#sodomy. Retrieved 2012-04-04.

191.^ “Laws: Somalia, GayLawNet”. Gaylawnet.com. 1964-04-03. http://www.gaylawnet.com/laws/so.htm#sodomy. Retrieved 2012-04-04.

192.^ [dead link]“Aceh Passes Stoning Law”. The Straits Times. September 14, 2009. http://www.straitstimes.com/Breaking%2BNews/SE%2BAsia/Story/STIStory_429633.html. Retrieved December 22, 2009.

193.^ Rough Guide to South East Asia: Third Edition. Rough Guides. August 2005. p. 74. ISBN 1-84353-437-1. http://www.roughguides.com/.

194.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). p. 183 (f12.27).

195.^ Hodgson, Marshall (1958). The Venture of Islam Conscience and History in a World Civilization Vol 1. University of Chicago. p. 238.

196.^ [Full citation needed] the last sermon of Muhammad.

197.^ Horrie, Chris; Chippindale, Peter (1991). p. 49.

198.^ a b c d [unreliable source?]El Fadl, Khaled Abou (undated). “On Christian Men Marrying Muslim Women”. scholarofthehouse.com. Retrieved September 19, 2011.

199.^ [dead link]“Imam Khaleel Mohammed’s Defense of Inter-Faith Marriage”.

200.^ [dead link]“Asharq Al-Awsat Interviews Sudanese Islamist Leader Dr. Hassan Turabi”. Asharq Al-Awsat.

201.^ Staff (July 23, 2003). “Malaysia Permits Text Message Divorce”. BBC News. Retrieved September 18, 2011.

202.^ Dr. Badawi, Jamal A. (September 1971). “The Status of Women in Islam”. Al-Ittihad Journal of Islamic Studies 8 (2)

203.^ Feldman, Noah (March 16, 2008). “Why Shariah?”. The New York Times. http://www.nytimes.com/2008/03/16/magazine/16Shariah-t.html?ei=5070&em=&en=5c1b8de536ce606f&ex=1205812800&pagewanted=all. Retrieved September 17, 2011.

204.^ Hafez, Mohammed (September 2006). “Why Muslims Rebel”. Al-Ittihad Journal of Islamic Studies 1 (2).

205.^ Glenn, H. Patrick (2007) pp. 217–219.

206.^ Lewis 1984, p. 18

207.^ Marshall Hodgson, The Venture of Islam Conscience and History in a World Civilization Vol 2. University of Chicago, 1958, p. 278.

208.^ al-Misri, Ahmad ibn Naqib (edited and translated from Arabic (with commentary) by Nuh Ha Mim Keller) (1994 revised edition). p. 603.

209.^ Lewis 1984, p. 62

210.^ Lewis 1984, p. 184

211.^ Glenn, H. Patrick (2007). p. 219.

212.^ Weeramantry 1997, p. 138

213.^ Sachedina, Abdulaziz Abdulhussein (2001). The Islamic Roots of Democratic Pluralism. Oxford University Press. ISBN 0-19-513991-7.

214.^ Cohen, Mark R. (1995). Under Crescent and Cross: The Jews in the Middle Ages. Princeton University Press. p. 74. ISBN 0-691-01082-X. http://books.google.com/?id=fgbib5exskUC&printsec=frontcover&dq=cohen+Under+Crescent+and+Cross&q. Retrieved April 10, 2010.

215.^ al-Qattan, Najwa (1999). “Dhimmis in the Muslim Court: Legal Autonomy and Religious Discrimination”. International Journal of Middle East Studies (University of Cambridge) 31 (3): 429–444. doi:10.1017/S0020743800055501. ISSN 00207438.

216.^ Jackson, Sherman A. (2005). p. 144 (via Google Books). Retrieved September 19, 2011.

217.^ Jackson, Sherman A. (2005). p. 145 (via Google Books). Retrieved September 19, 2011.

218.^ Moghul, Umar F. (Fall/Winter 1999). “Approximating Certainty in Ratiocination: How To Ascertain the ‘Illah (Effective Cause) in the Islamic Legal System and How To Determine the Ratio Decidendi in the Anglo-American Common Law”. Journal of Islamic Law 4: 125.

219.^ a b Tai, Emily Sohmer (2007). “Book Review: Hassan S. Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800–1050): The “Kitāb Akriyat al-Sufun” vis-à-vis the “Nomos Rhodion Nautikos”“. Medieval Encounters 13: 602–612.

220.^ Khalilieh, Hassan Salih (1998). Islamic Maritime Law – An Introduction. Leiden, Netherlands: Brill Publishers. ISBN 978-90-04-10955-1.

221.^ Makdisi, George (April–June 1989). “Scholasticism and Humanism in Classical Islam and the Christian West”. Journal of the American Oriental Society (Journal of the American Oriental Society, Vol. 109, No. 2) 109 (2): 175–182 [175–77]. doi:10.2307/604423. JSTOR 604423.

222.^ Kuran, Timur. The Absence of the Corporation in Islamic Law – Origins and Persistence.

223.^ Kuran, Timur (2005). “The Logic of Financial Westernization in the Middle East”. Journal of Economic Behavior and Organization. Vol. 56. p. 600.

224.^ “Why the Middle East Is Economically Underdeveloped – Historical Mechanisms of Institutional Stagnation”.

225.^ a b c Berg, Herbert. “Islamic Law.” Berkshire Encyclopedia of World History 3 (2005): 1030. In History Reference Center[database online]. Available from Snowden Library . Retrieved February 11, 2008.

Sources Of Islamic Law By Wiki

Sources of Islamic law

From Wikipedia, the free encyclopedia

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic law.[1] The primary sources, accepted universally by all Muslims, are the Qur’an and Sunnah. The Qur’an is the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of Allah. The Sunnah consists of the religious actions and quotations of the Islamic Prophet Muhammad and narrated through his Companions and Imams– (as per the beliefs of the school of Ahle-Sunnah and Ahle-Shia).[1] However, some schools of jurisprudence use different methods to judge the source’s level of authenticity. The other two sources are Ijma and Qiyas.Ijma is the decision taken as a council when both Quran and Sunnah prove to be insufficient and Qiyas is the personal opinion of a person himself not in contradiction with all first three sources.the quran says,”Take warnings O you with eyes to see”. As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable eventuality, jurisprudence must refer to resources and authentic documents to find the correct course of action.[1] According to Sunni schools of law, secondary sources of Islamic law are consensus among Muslims jurists, analogical deduction, al-Ra’y; independent reasoning, benefit for the Community and Custom.[2] Hanafi school frequently relies on analogical deduction and independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi’i school uses Sunnah more than Hanafi and analogy more than two others.[1][3] Among Shia, Usuli school of Ja’fari jurisprudence uses four sources, which are Qur’an, Sunnah, consensus and ‘aql. They use ijma under special conditions and rely on ‘aql (intellect) to find general principles based on the Qur’an and Sunnah, and use usul al-fiqh as methodology to interpret the Qur’an and Sunnah in different circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad.[1][4] According to Momen, despite considerable differences in the principles of jurisprudence between Shia and the four Sunni schools of law, there are fewer differences in the practical application of jurisprudence to ritual observances and social transactions.[5]

Primary sources

Qur’an

http://upload.wikimedia.org/wikipedia/commons/thumb/7/7b/Opened_Qur%27an.jpg/220px-Opened_Qur%27an.jpg

 

A copy of the Qur’an, one of the primary sources of Islamic law.

The Qur’an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur’an was written and preserved during the life of Muhammad, and compiled soon after his death.[6]

The verses of the Qur’an are categorized into three fields: “science of speculative theology”, “ethical principles” and “rules of human conduct“. The third category is directly concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur’an has led to various opinions and judgments. The interpretations of the verses by Muhammad’s companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.[1][6]

Sunnah

The Sunnah is the next important source, and is commonly defined as “the traditions and customs of Muhammad” or “the words, actions and silent assertions of him”. It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities. According to Shi’ite jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad’s daughter, who are believed to be infallible.[1][7]

Justification for using the Sunnah as a source of law can be found in the Qur’an. The Qur’an commands Muslims to follow Muhammad.[8] During his lifetime, Muhammad made it clear that his traditions (along with the Qur’an) should be followed after his death.[9] The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur’an. In Islamic jurisprudence, the Qur’an contains many rules for the behavior expected of Muslims but there are no specific Qur’anic rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of Muhammad and his companions to discover what to imitate and what to avoid.

Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur’an. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion over Muhammad’s conduct. Thus the Hadith were established.[7] Due to problems of authenticity, the science of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report’s transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith classifications developed.[10]

To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference, and their reference’s reference all the way back to Muhammad. All the references in the chain had to have a reputation for honesty and possessing a good retentive memory.[7] Thus biographical analysis (`ilm al-rijāl, lit. “science of people”), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability (thiqāt) of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain.[11] Examples of biographical dictionaries include Ibn Hajar al-Asqalani‘s “Tahdhīb al-Tahdhīb” or al-Dhahabi‘s “Tadhkirat al-huffāz.”[12]

Using this criterion, Hadith are classified into three categories:[7]

  1. Undubitable (mutawatir), which are very widely known, and backed up by numerous references.
  2. Widespread (mashhur), which are widely known, but backed up with few original references.
  3. Isolated or Single (wahid), which are backed up by too few and often discontinuous references.

Secondary sources

All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines, to follow in case the primary sources (i.e. the Qur’an and Sunnah) are silent on the issue.[13]

Consensus

Main article: Ijma

also called anlogy

The ijma’ , or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur’an that legitimize ijma’ as a source of legislation.[14][15] Muhammad himself said:

  • “My followers will never agree upon an error or what is wrong”,
  • “God’s hand is with the entire community”.[14][16]

In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community.[17] This is so because ijma’ represents the unanimous agreement of Muslims on a regulation or law at any given time.[18]

There are various views on ijma’ among Muslims. Sunni jurists consider ijma’ as a source, in matters of legislation, as important as the Qur’an and Sunnah. Shiite jurists, however, consider ijma’ as source of secondary importance, and a source that is, unlike the Qur’an and Sunnah, not free from error.[19] Ijma’ was always used to refer to agreement reached in the past, either remote or near.[17] Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma’ , as shown in the following table:

School of jurisprudence

Formation of ijma’

Rationale

Hanafi

through public agreement of Islamic jurists

the jurists are experts on legal matters

Shafi’i

through agreement of the entire community and public at large

the people cannot agree on anything erroneous

Maliki

through agreement amongst the residents of Medina, the first Islamic capital

Islamic tradition says “Medina expels bad people like the furnace expels impurities from iron”

Hanbali

through agreement and practice of Muhammad’s Companions

they were the most knowledgeable on religious matters and rightly guided

Usuli

only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding.

consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.

Source:[1][19]

In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.[17]

Analogical deduction

Main article: Qiyas

Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur’an and Sunnah. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.[20]

Supporters of qiyas will often point to passages in the Qur’an that describe an application of a similar process by past Islamic communities.It is the comparision of the new problem with the similar one described in quran or sunnah and then the law is made. According to Hadith, Muhammad said: “Where there is no revealed injunction, I will judge amongst you according to reason.”[21] Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus, amongst Muhammad’s companions.[20]

The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently.[20]

The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.[20]

The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur’an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur’an and sunnah). But, he also considered the “spirit” of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.[20]

The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own.

Abu Hanifa[20]

The Shafi’i school of thought accepts qiyas as a valid source. Imam Shafi’i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions that were not firmly rooted in the Qur’an and sunnah. According to Shafi’i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system. [22]

Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to “strict analogy” and proposed pronouncements on the basis of what jurists considered was “public good”.[22]

Preference

Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas).[23] Istihsan is defined as:

  • Means to seek ease and convenience,
  • To adopt tolerance and moderation,
  • To over-rule analogical deduction, if necessary.[24]

The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people.[22] This doctrine was justified directly by the Qur’an: “Allah desires you ease and good, not hardship”.[24] Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation,[25] and its opponents claimed that it often departs from the primary sources.[22]

This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia.[23] One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical deduction (qiyas), however, says that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.[24]

Public good

Imam Malik developed a tertiary source called al-maslaha al-mursalah, which means social benefit. According to this source of Islamic law, rulings can be pronounced in accordance with the “underlying meaning of the revealed text in the light of public interest”. In this case the jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi’is.[22]

Textual indication

Shafi’i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Imam Malik, he developed a tertiary source of legislation. The Shafi’i school adopted istidlal, a process of seeking guidance from the source. Istidlal allowed the jurists to avoid “strict analogy” in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation.[22]

Scholars divide istdilal into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, istidlal could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of istidlal is the authority as to the revealed laws previous to Islam.[26]

Reason

Main article: Ijtihad

Shi’ite jurists maintain that if a solution to a problem can not be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning “exerting oneself”). Shi’ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi’ school of thought, however, holds that both qiyas and ijtihad are the same.[27]

Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the “doors to ijtihad”, were closed.[27] In Sunni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines developed previously.[28] Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).[28]

There are many justifications, found in the Qur’an and sunnah, for the use of ijtihad. For example, during a conversation with Mu’ādh ibn Jabal, Muhammad asked the former how he would give judgments. Mu’ādh replied that he would refer first to the Qur’an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this.[29]

A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some mujtahid have claimed to be muj̲addid, or “renewer of religion.” Such persons are thought to appear in every century. In Shi’ite Islam they are regarded as the spokespersons of the hidden Imam.[28]

Common practice

Main article: Urf

The term urf, meaning “to know”, refers to the customs and practices of a given society. Although this was not formally included in Islamic law,[30] the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur’an or the tradition (called “Divine silence”). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of “common law“.[31]

Urf was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school. However, it was considered part of the sunnah, and not as formal source. Later al-Sarak̲h̲sī (d. 483/1090), opposed it, holding that custom cannot prevail over a written text.[30]

According to Sunni jurisprudence, in the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to qiyas (analogical deduction), custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars.[31] Shia does not consider custom as a source of jurisprudence.

Notes

1.       ^ a b c d e f g h Mutahhari, Morteza. “Jurisprudence and its Principles”. Tahrike Tarsile Qur’an. http://www.al-islam.org/jurisprudence/. Retrieved 2008-07-26.

2.       ^ “Shari`ah and Fiqh”. USC-MSA Compendium of Muslim Texts. University of Southern California. http://www.usc.edu/dept/MSA/law/shariahintroduction.html. Retrieved 2008-07-26.

3.       ^ Motahhari, Morteza. “The Role of Ijtihad in Legislation”. Al-Tawhid. http://www.al-islam.org/al-tawhid/ijtihad-legislation.htm. Retrieved 2008-07-26.

4.       ^ Momen (1985), p.185–187 and 223–234

5.       ^ Momen (1985), p.188

6.       ^ a b Nomani and Rahnema (1994), p. 3–4

7.       ^ a b c d Nomani and Rahnema (1994), p. 4–7

8.       ^ Quran 59:7

9.       ^ Qadri (1986), p. 191

10.    ^ “Hadith”, Encyclopedia of Islam.

11.    ^ Berg (2000) p. 8

12.    ^ See:

§  Robinson (2003) pp. 69–70;

§  Lucas (2004) p. 15

13.    ^ Makdisi, John (1985). “Legal Logic and Equity in Islamic Law”, The American Journal of Comparative Law, 33 (1): 63-92

14.    ^ a b Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. pg. 143

15.    ^ Verses Quran 2:143, Quran 3:103, Quran 3:110, Quran 4:59, Quran 4:115 and Quran 9:119 are presented by Mahmasani.

16.    ^ Muslehuddin, M. Philosophy of Islamic Law and the Orientalists. New Delhi: Taj printers, 1986. pg.146

17.    ^ a b c Encyclopædia Britannica, Ijma.

18.    ^ “Id̲j̲māʿ”, Encyclopaedia of Islam

19.    ^ a b Nomani and Rahnema (1994), p. 7–9

20.    ^ a b c d e f Nomani and Rahnema (1994), p. 9–12

21.    ^ Mahmasani, S. Falsafe-e Ghanoongozari dar Islam. Tehran: Amir Kabir. pg. 140

22.    ^ a b c d e f Nomani and Rahnema (1994), p. 13–15

23.    ^ a b Encyclopædia Britannica, Istihsan

24.    ^ a b c Hasan (2004), p.157–160

25.    ^ Hallaq, “Considerations on the Function and Character of Sunnī Legal Theory”.

26.    ^ Hodkinson, Keith. Muslim Family Law: A Sourcebook. India: Routledge, 1984.

27.    ^ a b Nomani and Rahnema (1994), p.15–16

28.    ^ a b c Ijtihad, Encyclopaedia of Islam

29.    ^ ʻAlwānī (1973), p. 9

30.    ^ a b “Urf”, Encyclopaedia of Islam

31.    ^ a b Hasan (2004), p. 169–71

Figh (Islamic Jurisprudence) From Wiki

FIGH (Islamic Jurisprudence)

From Wikipedia, the free encyclopedia

 

 

Fiqh (Arabic: فقه‎ [fiqh]) is Islamic jurisprudence. Fiqh is an expansion of the code of conduct (Sharia) expounded in the Quran, often supplemented by tradition (Sunnah) and implemented by the rulings and interpretations of Islamic jurists.

Fiqh deals with the observance of rituals, morals and social legislation in Islam. There are four prominent schools (madh’hab) of fiqh within Sunni practice and two within Shi’a practice. A person trained in fiqh is known as a Faqih (plural Fuqaha).[1]

Etymology

The word fiqh is an Arabic term meaning “deep understanding” or “full comprehension”. Technically it refers to the body of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence) and the process of gaining knowledge of Islam through jurisprudence. The historian Ibn Khaldun describes fiqh as “knowledge of the rules of God which concern the actions of persons who own themselves bound to obey the law respecting what is required (wajib), forbidden (haraam), recommended (mandūb), disapproved (makrūh) or merely permitted (mubah)”.[2] This definition is consistent amongst the jurists.

In Modern Standard Arabic, fiqh has come to mean jurisprudence in general, be it Islamic or secular. It is thus possible to speak of Chief Justice John G. Roberts, Jr. as an expert in the common law fiqh of the United States, or of Farouk Sultan as an expert in the civil law fiqh of Egypt.

Introduction

The Qur’an gives clear instruction on many issues, such as how to perform the ritual purification (Arabic: wudu) before the obligatory daily prayers (Arabic: salat), but on other issues, some Muslims believe the Qur’an alone is not enough to make things clear. For example the Qur’an states one needs to engage in daily prayers (Arabic: salat) and fast (Arabic: sawm) during the month of Ramadan but some Muslims believe they need further instructions on how to perform these duties. Details about these issues can be found in the traditions of Islamic prophet Muhammad (Arabic: Sunnah), so Qur’an and Sunnah are in most cases the basis for (Arabic: Shariah).

With regard to some topics the Qur’an and Sunnah are silent. In those cases the Muslim jurists (Arabic: Fuqaha) try to arrive at conclusions by other means. Sunni jurists use analogy (Arabic: Qiyas) and historical consensus of the community (Arabic: Ijma). The conclusions arrived at with the aid of these additional tools constitute a wider array of laws than the Sharia consists of, and is called fiqh. Thus, in contrast to the sharia, fiqh is not regarded as sacred and the schools of thought have differing views on its details, without viewing other conclusions as sacrilegious. This division of interpretation in more detailed issues has resulted in different schools of thought (Arabic: madh’hab).

This wider concept of Islamic jurisprudence is the source of a range of laws in different topics that govern the lives of the Muslims in all facets of everyday life.

Islamic Law

Islamic law (fiqh) covers two main areas:

  1. rules in relation to actions, and,
  2. rules in relation to circumstances surrounding actions.

Fiqh can also be grouped as:

  1. Worships (Ibadaat)
  2. Dealings & transactions (Mua’malaat)

Rules in relation to actions (‘amaliyya — عملية) comprise:

Rules in relation to circumstances (wadia’) comprise:

  • Condition (shart)
  • Cause (sabab)
  • Preventor (mani)
  • Permit/Enforced (rukhsah, azeemah)
  • Valid/Corrupt/Invalid (sahih, faasid, batil)
  • In time/Debt/Repeat (adaa, qadaa, i’ada)

Fields of Jurisprudence

Methodologies of Jurisprudence Usul al-fiqh (أصول الفقه)

The Modus operandi of the Muslim jurist is known as usul al-fiqh (principles of jurisprudence).

There are different approaches to the methodology used in fiqh to derive sharia from the Islamic sources. The main methodologies are:

Other minor schools are the Zaidi, Zahiri, Sufian Al’thawree, Sufian bin O’yayna, Layth bin Sa’ad, Tabari and Qurtubi schools.

The four schools of Sunnis

http://upload.wikimedia.org/wikipedia/commons/thumb/8/8d/Madhhab_Map2.png/300px-Madhhab_Map2.png

 

Map of the Muslim world with the main madhhab’s

The four schools (or Madh’hab) of Sunni Muslims are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are

These four schools share most of their rulings, but differ on the particular hadiths they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

The Hanafi school was the earliest established under the jurist Imam Abu Hanifa, who was born and taught in Iraq. Imam Abu Hanifa (80A.H.–150A.H.), whose real name was Nu’man ibn Thabit, was born in the city of Kufa (modern day Iraq) in the year 80 A.H (689 A.D). Born into a family of tradesmen, the Imam’s family were of Persian origin. Under Imam Abu Hanifa, the witr prayer was considered to be compulsory and the Hanafis also differed with other sects in relation to methods of taking ablution, prayers and payment of tithe or zakat. Imam Abu Hanifa also differed with the other three schools in many areas including the type of punishments meted out for various crimes in Islam. On the whole, the Hanafi school of jurisprudence could be said to have the most differences with other three schools.

Students of Imam Malik established the Maliki school of which a majority now can be found in North Africa and some Persian gulf states . Imam Malik, whose real name was Abu Abdullah, Malik bin Anas, was born in Medina in the year 715 AD. His ancestral home was in Yemen, but his grandfather settled in Medina after embracing Islam. He received his education in Medina, which was the most important seat of Islamic learning, and where the immediate descendants of Muhammad’s (SAW) followers lived. Imam Malik was attracted to the study of law, and devoted himself to the study of fiqh. His principal book, the Kitab al-Muwatta, is one of the earliest surviving books on hadith and fiqh. Differences under the Maliki school included the fact that those following the Maliki school could state their purpose (or niat) once only for compulsory fasting which is valid for the whole month of Ramadhan whilst for the Shafi’i.e. school (see below), one would have to state his purpose every day of the month of Ramadhan for his fast to be valid the next day.

Ja’fari jurisprudence

The Ja’fari school (Iran, Iraq, Azerbaijan, Lebanon, Afghanistan, Bahrain, Pakistan, India and Saudi Arabia) is associated with Imam Jafar-as-Sadiq. The fatwas, or time and space bound rulings of early jurists, are taken rather more seriously in this school, due to the more hierarchical structure of Shia Islam, which is ruled by the Imams. But they are also more flexible, in that every jurist has considerable power to alter a decision according to his opinion.

The Jafari school uses ‘aql “intellect” instead of qiyas in the Sunni schools, when establishing Islamic laws.

Ismaili Fatimid jurisprudence

Daim al-Islam is a book on the rulings of Islam followed by Ismaili Muslims who adhere to the Shi’a Ismaili Fatimid fiqh. It describes manners and etiquette, including Ibadat in the light of guidance provided by the Ismaili Imams. The book emphasizes what importance Islam has given to manners and etiquette along with the worship of God, citing the traditions of the first four Imams of the Shi’a Ismaili Fatimid school of thought.

Arguments for and against reform

Each school reflects a unique al-urf or culture (a cultural practice that was influenced by traditions), that the classical jurists themselves lived in, when rulings were made. Some suggest that the discipline of isnad, which developed to validate hadith made it relatively easy to record and validate also the rulings of jurists. This, in turn, made them far easier to imitate (taqlid) than to challenge in new contexts. The argument is, the schools have been more or less frozen for centuries, and reflect a culture that simply no longer exists. Traditional scholars hold that religion is there to regulate human behavior and nurture peoples moral side and since human nature has not fundamentally changed since the beginning of Islam a call to modernize the religion is essentially one to relax all laws and institutions.

Early shariah had a much more flexible character, and some modern Muslim scholars believe that it should be renewed, and that the classical jurists should lose special status. This would require formulating a new fiqh suitable for the modern world, e.g. as proposed by advocates of the Islamization of knowledge, which would deal with the modern context. This modernization is opposed by most conservative ulema. Traditional scholars hold that the laws are contextual and consider circumstance such as time, place and culture, the principles they are based upon are universal such as justice, equality and respect. Many Muslim scholars argue that even though technology may have advanced, the fundamentals of human life have not and is in the scope of current laws.

Early history

The formative period of Islamic jurisprudence stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with issues of authority and teaching than with theory and methodology.[3]

Progress in theory and methodology happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his book ar-Risālah. The book details the four roots of law (Qur’an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur’an and the hadith) be understood according to objective rules of interpretation derived from scientific study of the Arabic language.[4]

Secondary sources of law were developed and refined over the subsequent centuries, consisting primarily of juristic preference (istihsan), laws of the previous prophets (shara man qablana), continuity (istihsab), extended analogy (maslaha mursala), blocking the means (sadd al-dhari’ah), custome urf and saying of a companion (qawl al-sahabi).[5]

Possible links with Western law

A number of important legal institutions were developed by Muslim jurists during the classical period of Islam, known as the Islamic Golden Age. One such institution 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 agency in common law and in civil laws such as the aval in French law and the avallo in Italian law.[6] The “European commenda” (Islamic Qirad) used in European civil law may have also originated from Islamic law.[7]

The Waqf in Islamic law, which developed during the 7th–9th centuries, bears a notable resemblance to the trusts in the English trust law.[8] For example, every Waqf was required to have a waqif (settlor), mutawillis (trustee), qadi (judge) and beneficiaries.[9] 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.[10][11]

The Islamic lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters “which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff.” The only characteristic of the English jury which the Islamic lafif lacked was the “judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition.” According to Professor John Makdisi, “no other institution in any legal institution studied to date shares all of these characteristics with the English jury.” It is thus likely that the concept of the lafif may have been introduced to England by the Normans, who conquered both England and the Emirate of Sicily, and then evolved into the modern English jury.[7]

Several other fundamental common law institutions may have been adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England by the Normans after the Norman conquest of England and the Emirate of Sicily, and by Crusaders during the Crusades. In particular, 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.” Other English legal institutions such as “the scholastic method, the licence to teach“, the “law schools known as Inns of Court in England and Madrasas in Islam” and the “European commenda” (Islamic Qirad) may have also originated from Islamic law.[7] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems.[12] These influences have led some scholars to suggest that Islamic law may have laid the foundations for “the common law as an integrated whole”.[7]

Notes

1.       ^ Glasse, Cyril, The New Encyclopedia of Islam, Altamira, 2001, p.141

2.       ^ Levy (1957). Page 150.

3.       ^ Weiss (2002), pp.3, 161.

4.       ^ Weiss (2002), p.162.

5.       ^ Nyazee (2000)

6.       ^ Badr, Gamal Moursi (Spring, 1978). “Islamic Law: Its Relation to Other Legal Systems”. The American Journal of Comparative Law (American Society of Comparative Law) 26 (2 – Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977): 187–198 [196–8]. doi:10.2307/839667. JSTOR 839667

7.       ^ a b c d Makdisi 1999

8.       ^ Gaudiosi 1988

9.       ^ Gaudiosi 1988, pp. 1237–40

10.    ^ Hudson 2003, p. 32

11.    ^ Gaudiosi 1988, pp. 1244–5

12.    ^ El-Gamal, Mahmoud A. (2006). Islamic Finance: Law, Economics, and Practice. Cambridge University Press. p. 16. ISBN 0521864143

 

Principles Of Islamic Jurisprudence

Principles of Islamic Jurisprudence

From Wikipedia, the free encyclopedia

Principles of Islamic jurisprudence (usool al-fiqh) is a subject that provides a critical analysis of the sources and principles that Islamic jurisprudence (fiqh) is built upon.

Traditionally four main sources are analysed along with a number of secondary sources and principles.

The main subject areas of discussion comprise:

  • General evidences and principles (adillah ijmalliya wa al-qawaid)
  • Resolution of conflict and discrepancy (ta’adal wa tarjeeh)
  • Determination of rules and adoption/emulation of rules (ijtihad wa taqlid)
  • Islamic Law (hukm shari)

Etymology

Usool al-fiqh comprises the conjunction of two Arabic terms, usool and fiqh. Usool is derived from the root letters hamza, sad and lam which refers to basis. Fiqh linguistically refers to knowledge, deep understanding or comprehension.

Technically the term is used to refer to the body of evidences and principles that Islamic jurists utilise to provide solutions to problems.

Primary sources

The Qur’an has always been regarded as the primary legal source of Islam, the speech of Allah. It has been transmitted through numerous chains (mutawatir) and proven through rational argument.

This has been supplemented by further revelation termed sunnah. It comprises explanations from the Prophet Mohammed in terms of his speech, actions and silences which have been historically compiled and virified through chains of narrations called hadiths. Sunnah is referred to for elaboration of the Quran or for clarification of a matter that is not mentioned in the Quran and is second in prioritisation to Quran.

The Muslim jurists have found that some revelation has been captured through collective agreements expressed after the death of the Prophet through consensus of his companions which were transmitted over the ages. These are compiled as instances of consensus of the companions (ijma al-sahaba).

Only when these failed to provide the authority sought did jurists resort to interpretationijtihad.

In the very early days of Islam Muslim authorities tended to rely on their own opinions to establish their interpretation of what a prescribed law should be for any given situation not founded on the Qur’an, a practice known as ra’y.

The jurist ash-Shafi’i, however, preferred to rely solely on traditions from the prophet and thereafter on the method known as qiyas (analogy) where interpretations were to be derived from comparisons with relative subjects dealt with in the Qur’an or the traditions.

It is now the scholarly consensus, amongst both orientalist and traditional scholarship, that the following is a myth: “Once Shafi’i’s school of law was fully established together with the other schools founded by Ahmad ibn Hanbal, Abu Hanifa and Malik, the “door” of ijtihad was closed and it was considered that ijma had been reached on all necessary points of law (though the schools differ in many matters to this day but mostly on minor points of interpretation). Accordingly, Islamic jurisprudence has changed little for centuries and is based fundamentally on the four sources mentioned above. There is much debate and critique as to whether closing the gates of ijtihad was acceptable and whether it contributed to the intellectual and civislisational decline of the Muslims.” Wael Hallaq is widely credited for decisively discrediting this myth in the western world, whereas others such as Qasim Zaman continue to show how the Ulema continued to actively engage in Ijtihad. However, there is a valid debate over the degree to which the Ulema remained active in such endeavours ever since colonialism and modernity intruded Muslim lands. In fact, faced with such drastic change, there are certain cases that do show the Ulema to be initially dismissive of sociopolitical realities and hence lagging in their response- Nevertheless eventually finding legal stratagems to solve dilemmas. A case in point is the issue of women’s divorce in the time of Ashraf Ali Thanvi.[1]

In the Shi’a schools, they have continued with ijtihad to the present day. They however disputed the methodology of compilation of narrations of sunnah and also limited consensus of the companions to consensus of the family of the Prophet (ijma ahl al-bayt)

Secondary sources

  • Istihsan
  • Masali Mursala
  • Ihsaan (spiritual excellence, virtue)
  • Istidlaal
  • Urf (local custom or pre-existing law)
  • Aql (reason or intellect)
  • Sadd al-dharai
  • Shara man qablana
  • Ijma al-ummah (consensus of the worldwide Muslim community)
  • Ijma khulafah al-rashideen (consensus of the first four caliphs)
  • Ijma ahl al-medina (consensus of the Muslims of Medina, as reflected in early hadith collections, e. g. the Muwatta of Anas bin Malik)
  • Ijma al-ullama (consensus of scholars of Islamic law)
  • Ijma ahl al-hali wa al-aqd

Principles

  • That which is necessary to achieve an obligation is obligatory
  • That which leads to haram is haram
  • Lesser of the two evils
  • The doubt does not remove the certainty

The Schools of Thought

The schools of Sunni Islam are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are

These schools share many of their rulings, but differ on the particular hadiths they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

The Shiite schools comprise:

Famous Classical Muslim Jurists (Usoolis)

  • Nouman bin Thabit Abu Hanifa
  • Mohammed Idris al-Shafii
  • Malik bin Anas
  • Ahmad bin Hanbal
  • Amidi
  • Ghazali
  • Sarkhasi
  • Asnawi
  • Abu Yusuf
  • Shaybani
  • Imam Qurtibi
  • Layth bin Sa’ad
  • Sufian bin ‘Uyayna
  • Ja’far al-Sadiq

References

1.       ^ http://deepblue.lib.umich.edu/bitstream/2027.42/60731/1/fareehak_1.pdf