Sharia

Sharia, Sharia law or Islamic law is a set of religious principles which form part of the Islamic culture. The Arabic word shari'ah () refers to the revealed law of God and originally meant "way" or "path".
Classical sharia deals with many aspects of public and private life, including religious rituals, family life, business, crimes, and warfare. In former times, sharia was interpreted by independent jurists, who based their legal opinions on Qur'an, Hadith and centuries of debate, interpretation and precedent. Some parts of sharia can be described as "law" in the usual sense of that word, while other parts are better understood as rules for living life in accordance with God's will.
Countries in the Muslim world all have their own laws. In most of them only a small part of the legal system is based on classical sharia. Muslims disagree on how sharia should be applied.
Meaning and origins
People of different religions who speak Arabic use the word shari'ah to describe a religious tradition that comes from teachings of prophets. Christians and Jews in the Middle East have used it to describe their own religion. For many Muslims the word "sharia" means simply "justice". They will say that any law agrees with sharia as long as it helps to build a more fair and prosperous society.
Most Muslims think that sharia should be interpreted by experts in Islamic law. In Arabic, the word shari'ah refers to God's revelation, which does not change. In contrast, the rules of behavior created by scholars as they try to understand God's revelation are called fiqh. These rules can change and Islamic scholars have often disagreed about them.
Scholars disagree about the origins of the word "sharia". Some say that "sharia" comes from the old Arabic word meaning "pathway to be followed". This would make it similar to halakha (the way to go), the Hebrew word for Jewish law. Other scholars think that the word "sharia" originally meant "path to the water hole". They say that knowing the way to a water hole could save a man's life in the dry deserts where many Arabs lived in ancient times, and that is why this word came to refer to God's guidance to man.
Theory
Islamic scholars who lived during the first centuries of Islam developed different methods for interpreting sharia. Most of them came to agree that sharia rules should be derived from the following main sources:
The Qur'an, which Muslims believe was revealed by God to Muhammad through the angel Gabriel (Jibril).
The actions and words of Muhammad, which are called the sunnah and were preserved in collections called hadith
Consensus, when legal experts all agree on a point of law
qiyas or legal reasoning by analogy
The process of deriving sharia rules from the Qur'an and hadith is called ijtihad. Sharia rules classify actions into one of the following categories:
Fard (action that one must perform)
Mustahabb (recommended action)
Mubah (action that is allowed)
Makruh (action that is despised)
Haram (forbidden action)
These acts have "material or moral" provisions in the understanding of Sharia. The abandonment of the actions "that are considered fard, wajib and sunnah", and doing the forbidden ones "that are considered makruh and haram" are penalized. (hadd or tazir punishments). E.g.; Beating, imprisoning and killing those who insist on not praying can be considered in this context.
Sharia in Islam is viewed as the revealed law of God, which cannot be altered. On the other hand, its interpretation, called fiqh, is the work of legal scholars, who have frequently differed in their legal opinions. Some parts of sharia are similar to what people in the West call "law", while other parts are better understood as rules for living life in accordance with God's will.
There are several schools of legal thought in Islam, of which the most important are the Hanafi, Maliki, Shafi'i and Hanbali schools of Sunni Islam and the Ja'fari school of Shia Islam.
Branches of sharia
The divisions of sharia are called "branches" (furu) in Arabic. The main branches are ibadat (rituals or acts of worship) and mu'amalat (human interactions or social relations). These branches are divided into many smaller branches, some of which are listed bellow:
The acts of worship, or al-ibadat, called the 5 pillars of Islam: affirmation of faith, prayer, fasting, charity, and pilgrimage
Human interaction, or al-mu'amalat, which includes:
Financial transactions
Endowments
Laws of inheritance
Marriage, divorce, and child custody
Foods and drinks (including ritual slaughtering and hunting)
Penal punishments
Warfare and peace
Judicial matters (including witnesses and forms of evidence)
Acts of worship
The Five Pillars of Islam are:
Affirmation (Shahadah): There is no God except Allah and Muhammad is his messenger.
Prayer (Salah): five times a day
Fasting (Sawm during Ramadan)
Charity (Zakat)
Pilgrimage to Mecca (Hajj)
There are two festivals that are considered Sunnah.
Eid ul-Fitr
Eid ul-Adha
There are some special rituals used during these festivals:
Sadaqah (charity) before Eid ul-Fitr prayer.
The Prayer and the Sermon on Eid day.
Takbirs (glorifying God) after every prayer in the days of Tashriq (see footnote for def.)
Sacrifice of unflawed, four-legged grazing animal of appropriate age after the prayer of Eid ul-Adha in the days of Tashriq. The animal must not be wasted; its meat must be consumed.
Dietary laws
Islamic law lists only some specific foods and drinks that are not allowed.
Pork, blood, and scavenged meat are not allowed. People are also not allowed to eat animals that were slaughtered in the name of someone other than Allah.
Intoxicants (like alcoholic drinks and drugs) are not allowed generally.
While Islamic law prohibits already-dead meat, this does not apply to fish and locusts. Also, hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet, tamed donkeys, and any piece cut from a living animal.
Sacrifice
There are some specific rules regarding the killing of animals in Islam.
The animal must be killed in the most humane way: by swiftly cutting the throat.
The animal must not be diseased.
The animal must not have been exposed to feces, worms, and other impurities.
All blood must drain from the animal before being packaged.
Family life
A Muslim woman can only marry a Muslim man and a Muslim man can only marry a Muslim or Ahl al-Kitab. He/She cannot marry an atheist, agnostic or polytheist.
A Muslim minor girl's father or guardian needs her consent when arranging a marriage for her. And should only marry when she is of legal age.
A marriage is a contract that requires the man to pay, or promise to pay some of the wedding and provisions the wife needs. This is known as the Mahr or Meher.
A Muslim man may be married to up to four women at a time, although the Qur'an has emphasised that this is a permission, and not a rule. The Qur'an has stated that to marry one is best if you fear you cannot do justice between your wives and respective families. This means that he must be able to house each wife and her children in a different house, he should not give preferential treatment to one wife over another.
A female heir inherits half of what a male heir inherits. The concept being that Islam puts the responsibility of earning and spending on the family on the male. Any wealth the female earns is strictly for her own use. The female also inherits from both her immediate family and through agency of her husband, her in-laws as well.
Crime and punishment
Sharia recognises three categories of crime:
Offenses mentioned in the Quran (hudud) that are viewed as violating "claims of God" and have fixed punishments.
Offenses against persons (murder and wounding) which call for a punishment similar to the crime (qisas) or payment of compensation (diya)
Other forbidden behaviour where a Muslim judge uses his discretion in sentencing (ta'zir and siyasa)
Although there is some disagreement about which crimes are hudud crimes, they usually include theft, highway robbery, zina (sex with forbidden partners), falsely accusing someone of zina, and drinking alcohol. The prescribed punishments for these crimes range from 80 lashes to death. However, classical jurists developed very strict rules which restrict when these punishments could be applied, so that in many cases it became almost impossible to convict anyone under these rules. For example, there must be four adult male Muslim witnesses to a hudud crime or a confession repeated four times, before someone can be punished. If a criminal could not be convicted of a hudud crime, they could still receive a tazir punishment.
Qisas;
In the historical practice, qisas appears in two ways. One of them is the punishment of the perpetrator with a "counter-action", exactly the same as the crime committed, in crimes against the person's bodily integrity; A life for a life, an eye for an eye, a tooth for a tooth... etc.
Another application is related to the social status of the perpetrator and the victim. In the tribal understanding, when a person kills a woman, a slave or an honorable person from another tribe, a person "of similar status from the tribe to which the murderer belongs" will be killed in return. As a general custom, killing the master's to slave, father's to child, husband's to wife was not punished with retaliation, and retaliation was not applied to the man who killed the woman as a rule. The condition of "social equality" in qisas means that; "if a socially inferior person kills someone from the upper class, qisas will be applied", whereas "if someone from the upper class kills someone from the lower class, it cannot be applied". On this pre-Islamic understandings the discussion whether a Muslim could be executed for a non-Muslim was added in Islamic period.
In these cases, compensation (Diya) can be paid to the family of the murdered person.
The main verse for implementation in Islam is Al Baqara; 178 verse;
: '''Believers! Retaliation is ordained for you regarding the people who were killed. Free versus free, captive versus captive, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well."
While retaliation is certain in crimes of murder, according to the verse(2:178)), the situation is not clear in the crimes of wounding. For such (an eye for an eye, a tooth for a tooth, etc.) punishments, the expression "This is how we wrote to them (the Children of Israel) in the book", is used. (5: 45)
Murder, bodily injury and property damage - intentional or unintentional - is considered a civil dispute under sharia law. The victim, victim's heir(s) or guardian is given the option to either forgive the offender, demand Qisas (equal retaliation) or accept a compensation (Diyya). Under sharia law, the Diyya compensation received by the victim or victim's family is in cash.M Kar (2005), Encyclopedia of Women and Islamic Cultures: Family, Law and Politics (Ed: Suad Joseph, Afsana Nagmabadi), , pp. 406-407
Apostasy is punished by death unless the apostate agreed to return to Islam.
Legal system
Muftis
During the Islamic Golden Age, sharia was interpreted by experts in Islamic law (muftis), most of whom were independent religious scholars. Anyone could ask them a question about law, and they were expected to give an answer for free. Their legal opinions were called fatwas.
Qadi's courts
When there was a legal dispute about family or financial matters, it would be handled in a court headed by a qadi (judge). These judges also had a legal education, and they were appointed to their post by the ruler. In simple cases, qadis would pronounce a verdict based on their own knowledge of sharia. In more difficult cases, they would express the details of the case in general terms and ask a mufti for his legal opinion.
Mazalim courts
Criminal cases were usually handled in mazalim courts. These courts were controlled by the ruler's council. Mazalim courts were supposed to follow "the spirit of sharia". Qadis and muftis were present in those courts to make sure the verdicts did not go against it. However, these courts did not necessarily follow the letter of the law, and they had fewer legal restrictions than qadi's courts. Mazalim courts also handled complaints against government officials. Their purpose of mazalim courts was to "right wrongs" which could not be addressed through procedures of qadi's courts. Less serious crimes were often handled by local police and market inspectors according to local customs, which were only loosely related to sharia.
Non-Muslims
Non-Muslim communities living under Islamic rule were allowed to follow their own laws. The government kept out of their internal legal affairs, except when there was a dispute between people of different religions. Such cases were handled by a qadi. When that happened, sharia rules gave Muslims some legal advantages over non-Muslims. However, non-Muslims often won cases against Muslims and even against high government officials, because people thought that sharia was a reflection of divine justice which should defend the weak against the powerful.
Sharia in the modern world
In the modern era, most parts of the Muslim world came under influence or control of European powers. This led to major changes in the legal systems of these lands. In some cases, this was because Muslim governments wanted to make their states more powerful and they took European states as models of what a modern state should look like. In other cases, it was because Europeans who colonized these lands forced them to abandon parts of Islamic law and follow European laws instead.
Early legal reforms
In modern times, criminal laws in the Muslim world were widely replaced by codes which were inspired by European laws. Court procedures and legal education were also made similar to European practice. The constitutions of most Muslim-majority states mention sharia in one way or another. However, the classical rules of sharia were preserved mostly in family laws. In earlier times, sharia was interpreted by independent scholars who often disagreed with each other, and all their opinions were never written down in one place. In the modern era, it was the government who controlled the laws. Different states created their own legal codes, where the laws were clearly stated. The governments wanted to make family laws fit better in the modern world, but they still wanted people to view them as laws based on sharia. In order to do this, the scholars who wrote down these laws decided to pick and choose rules from the different legal opinions available in the classical books of law. When some of the laws they picked disagreed with the current norms of society, the government tried to solve this problem by creating additional court procedures. For example, when family laws in some states seemed to treat women unfairly to the population, the government created procedures that made it more difficult for men to take advantage of these laws in an unfair manner.
Recent legal reforms
In the last quarter of the 20th century, many Muslims around the world became disappointed in their governments. These governments had adopted Western ways in their legal systems and other matters, but many people regarded their actions as oppressive, corrupt, and ineffective. More and more Muslims started to think that things would improve if their government returned to Islamic traditions. They began calling for return of sharia, and conservative members of the public wanted the government to deal with crime using all the traditional methods, including hudud punishments. In a few countries, the government put some elements of classical criminal law into the legal code. However, in some of these countries (for example, Iran and Sudan) the supreme court has rarely approved the harsher hudud punishments, while in the other countries which adopted hudud laws (for example, Pakistan and Nigeria), the supreme court never approves them.
In some countries, progressive Muslim reformers have been able to change how the state interprets sharia family laws to make them more fair to women.
Saudi Arabia
Saudi Arabia is an exceptional case in the legal history of the Muslim world. It has always continued to use sharia in different areas of law, and it never codified its laws. Its judges have always tried to follow traditional sharia rules for dealing with crimes, and they often impose harsh punishments that inspire international protests. However, these punishments are not necessarily prescribed by sharia. Judges in Saudi Arabia follow the classical principle which says that hudud punishments should be avoided if at all possible, and the punishments which they apply are usually tazir punishments which are left to their own choice. Saudi Arabia is often criticized for its public executions, and their frequency has increased in recent decades. Executions became more frequent because the government and courts decided to crack down on violent crime which became more frequent during the 1970s, as also happened in the U.S. and China.
Notes
References
Laleh Bakhtiar and Kevin Reinhart (1996). Encyclopedia of Islamic Law: A Compendium of the Major Schools. Kazi Publications.
Muhammad ibn Idris al- Shafi'i (1993). Risala: Treatise on the Foundations of Islamic Jurisprudence.
Khaled Abou El Fadl 2003). Reasoning with God: Rationality and Thought in Islam. Oneworld.
Cemal Kafadar (1996). Between Two Worlds: The Construction of the Ottoman State. University of California Press.
Omid Safi (2003). Progressive Muslims: On Justice, Gender, and Pluralism. Oneworld Publications.
Mumisa, Michael (2002) Islamic Law: Theory & Interpretation. Amana Publications.
Daniel W. Brown (1996). Rethinking traditions in modern Islamic thought''. Cambridge University Press, UK.
Bernard Weiss (2002), Studies in Islamic Legal Theory, Brill Academic publishers,
Related pages
Irth, fara'id, or wasaya
Fatwa
Zakat - Payment of portion of one's wealth for charity
Other websites
World Database for Islamic Banking and Finance
Al-Mawrid Institute of Islamic Sciences
Shariah Institute
Muslim Arbitration Tribunal
Khalid Chraibi: Reforming Islamic family law within the religious framework - The "best practices" strategy
Khalid Chraibi: The king, the mufti & the Facebook girl - a power play. Who decides what is licit in Islam? - CyberOrient
Division of Inheritance According to Qur'an
Full official English version of Sunni Sharia Law online
Islamic law