Sharia

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Sharia (شريعة Šarīʿa; [ʃaˈriːʕa], "way" or "path") is the sacred law of Islam. All Muslims believe Sharia is God's law, but they have differences among themselves as to exactly what it entails.^[1] Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have varying interpretations of Sharia as well.

Muslims believe all Sharia is derived from two primary sources, the divine revelations set forth in the Qur'an, and the sayings and example set by the Islamic Prophet Muhammad in the Sunnah. Fiqh, or "jurisprudence," interprets and extends the application of Sharia to questions not directly addressed in the primary sources, by including secondary sources. These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Qur'an and Sunnah through qiyas. Shia jurists replace qiyas analogy with 'aql, or "reason". Where it enjoys official status, Sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of Sharia. While the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader or political leader. Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting.

Introduction (or reintroduction) of Sharia is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g. India) have attained institutional recognition of Sharia to adjudicate their personal and community affairs. In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes, with varying degrees of success (e.g. Britain's Muslim Arbitration Tribunal). Attempts to impose Sharia have been accompanied by controversy,^[2][3][4][5] violence,^{[6][7][8][9][10][11]} and even warfare (cf. Second Sudanese Civil War).^{[12][13][14][15]}

Etymology

countries with sharia.

In The Spirit of Islamic Law, Professor Bernard G. Weiss states "In archaic Arabic, the term sharì'a means 'path to the water hole.' When we consider the importance of a well-trodden path to a source of water for man and beast in the arid desert environment, we can readily appreciate why this term in Muslim usage should have become a metaphor for a whole way of life ordained by God."^[16]

In Understanding Islamic Law: From Classical to Contemporary, Professor Irshad Abdal-Haqq states "Shar'iah, or more properly Al-Shari'ah, literally means the pathway, path to be followed, or clear way to be followed, and has come to mean the path upon which the believer has to tread. In original usage Shar'iah meant the road to the watering place or path leading to the water, i.e., the way to the source of life. The technical application of the term as a reference to the law of Islam is traced directly to the Qur'an, wherein the adherents of Islam, the believers, are admonished by Allah (God) to follow the clear and right way, the path of Shari'ah: 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^{[Qur'an 45:18]}."^[17]

According to Abdul Mannan Omar in his Dictionary of the Holy Quran, the word at 45:18 (see Abdal-Haqq above) derives from the "Quranic root" shara'a. Derivations include: Shara'a (as prf. 3rd. p.m. sing.), meaning "He ordained", appearing once in the Qur'an at verse 45:13; Shara'u (prf. 3rd. p.m. plu.) "They decreed (a law)" appearing once at 42:21; Shir'atun (n.) "Spiritual law", used at 5:48; finally, Shariatun (act. 2nd. pic. f. sing.) "System of divine law, Way of belief and practice" is used at 45:18.^[18]

Definitions and descriptions

Sharia has been defined as

• "Muslim or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and moral. The custom-based body of law based on the Quran and the religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are law, the latter distinguished by Islam and Muslims in their application, as Sharia or Sharia law."^[19]
• "a discussion on the duties of Muslims," —Hamilton Alexander Rosskeen Gibb^[20]
• "a long, diverse, complicated intellectual tradition," rather than a "well-defined set of specific rules and regulations that can be easily applied to life situations," —Hunt Janin and Andre Kahlmeyer^[21]
• "a shared opinion of the [Islamic] community, based on a literature that is extensive, but not necessarily coherent or authorized by any single body," —Knut S. Vikor^[22]

From the ninth 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.^[23] 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.^[24] 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.^[25][26] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires.^[27] 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.^[28][29]

Traditional perspectives on Sharia

The majority of Muslims regard themselves as belonging to either the Sunni or Shi'a sect of Islam. Within these sects, there are different schools of religious study and scholarship. The schools within each sect have common characteristics, although each differs in its details.

The Sunni perspective

In addition to the "Basic Code" of the Qur'an and Sunnah, traditional Sunni Muslims also add the consensus (ijma) of Muhammad's companions (sahaba) and Islamic jurists (ulema) on certain issues. In situations where no concrete rule exists in the sources, law scholars use qiyas — various forms of reasoning, including analogy, to derive law from the essence of divine principles and preceding rulings. The consensus of the community, public interest, and other sources are used as an adjunct to Sharia where the primary and secondary sources allow.^[30] This description can be applied to the major schools of Sunni fiqh, which include the Hanafi, Shafi'i, Maliki and Hanbali.

The Salafi perspective

The Salafi movement looks to the actions and sayings of the first three generations of Muslims for guidance, in addition to the Qur'an and Sunnah. Salafis take these exemplary early Muslims as the source of their fiqh. The Salafi movement has attracted followers from many Muslim cultures and schools of fiqh.^[31]

Muslims who subscribe to the teachings of scholar Muhammad ibn Abd-al-Wahhab are considered part of the Salafi movement.^[32]

The Shi'a perspective

Shi'a Muslims also extend the "Basic Code" with fiqh, but strongly reject analogy (qiyas) as an easy way to innovations (bid'ah), and reject consensus (ijma) as not having any particular value in its own. During the period that the Sunni scholars developed those two tools, the Shi'a Imams were alive, and Shi'a view them as an extension of the Sunnah, so they view themselves as deriving their laws (fiqh) only from the Qur'an and Sunnah. A recurring theme in Shi'a jurisprudence is logic (mantiq),^[33] something most Shi'a believe they mention, employ and value to a higher degree than most Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Qur'an and Sunnah.

In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Qur'an, anecdotes of Muhammad's practices and those of The Twelve Imams, and the intellect ('aql). The practices called Sharia today, however, also have roots in comparative law ^[34] and local customs (urf).^[30]

Most Shia Muslims followed the Ja'fari school of thought.^[35]

Modern perspectives on Sharia

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 the individual 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).^[36]

The 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 (which is under pressure from religious political parties) have declared themselves to be secular. Here, religious interference in state affairs, law and politics is prohibited.^[37] In these Muslim countries, as well as the secular West, the role of Sharia is limited to personal and family matters.

Muslim states with blended sources of law: Muslim countries including Pakistan, Indonesia, Afghanistan, Egypt, Nigeria, 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.^[38]

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.^[39]

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.

The 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.^[40]

Modern schools of thought

Legal scholar L. Ali Khan claims that "the concept of Sharia has been thoroughly confused in legal and common literature. For some Muslims, Sharia consists of the Qur'an and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define Sharia as law based upon the Qur'an, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of Sharia lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Qur'an and the Sunnah. The Qur'an and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to dissipate confusion around the term Sharia."^[41]

The 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 to improve education.^[42]

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.^[43]

The Islamist movement: Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and Sharia 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.^[44] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey's secular government.^[44] These movements can be considered neo-Sharism.^[45]

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.^[46]

Extremism: Extremists have used the Qur'an and their own particular version of Sharia ^[47] to justify acts of war and terror against Western individuals and governments, and also against other Muslims believed to have Western sympathies. ^[48] Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.^[49]

The 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. The evolution or refinement of Sharia is an effort to more perfectly reflect God's will.^[50]

Confusion 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." Professor Otto's analysis appears in a paper commissioned by the Netherlands Foreign Ministry.^[51]

Characteristics

Origins

According to Muslims, Sharia law is founded on the words of Allah as revealed in the Qur'an, 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.^[52] 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.^[53]

Mecca was inhabited by the Quraysh, a pagan tribe with some Jews and Christians 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.^[54] It was in middle age that Muhammad began to speak of revelations received from Allah through the angel Gabriel. Muhammad told others of his revelations, and attracted followers who transcribed them onto available materials.^[55] Over the twenty years from his first revelation until his death, Islam became the dominant force in the Arabian peninsula, and a serious challenge to the Byzantine and Sasanian empires.^[56] After Muhammad's death, the revelations were collected and organized into the Qur'an, 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.^[57] The advent of Islam brought the tribes together under a single religion. As Islam is not just a religion, but also a way of life, a new common basis of law and personal behavior, Sharia, began to take shape.^[58]

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.^[59] 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.^[59] 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."^[57] 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."^[57] So, while "each and every law must be rooted in either the Qur'an or the Sunnah,"^[60] 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".^[60]

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.^[61] Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767-820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.^[62]

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.^{[63][64][65][66]}

The 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.^[67]

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.^[67]

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.^[68]

All behavior which is neither discouraged nor recommended, neither forbidden, recommended nor required is of the Mubah; it is permissible.^[67]

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.^[68]

Haraam behavior is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in both the Old Testament and the Qur'an. Violating any of the Ten Commandments is considered haraam. Certain Muslim dietary and clothing restrictions also fall into this category.^[67]

The recommended, permissible 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.^[67]

Topics of Islamic law

Sharia law can be organized in different ways.

Sharia can be divided into five main branches: ibadah (ritual worship), mu'amalat (transactions and contracts), adab (morals and manners), i'tiqadat (beliefs), and '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: Purification, Prayer, The Funeral Prayer, The Poor Tax, Fasting, The Pilgrimage, Trade, Inheritance, Marriage, Divorce, and Justice. In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.

Purification

Purification is both a spiritual and a physical matter for Muslims. Water is used for purification in most circumstances, although earth can also be used under certain conditions. Before praying or performing certain religious activities, Muslims must clean themselves in a prescribed manner. The manner of cleansing, either wudhu or ghusl, depends on the circumstances. The cleaning of dishes, clothing and homes are all done in accordance with laws of purification. Certain human activities lead to impurity, as does contact with impure animals and substances. Classic Islamic law details how to recognize impurity, and how to purify.^[69][70]

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. 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.^[71][72]

The 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.^[73]

The Poor Tax

All Muslims who live above the subsistence level must pay an annual poor tax, known as zakat. This is not charity, but rather an obligation owed by the Muslim to the poor of the community. The amount is calculated based on the wealth of the Muslim paying the tax, not their income. The base rate of taxation is 2.5 percent, but it varies depending on the type of wealth being assessed. Wealth includes savings, jewelry and land. Classic Islamic law details the tax, how it is assessed, its collection, and its distribution.^[74][75]

Fasting

During the Islamic month of Ramadan, Muslims abstain from food, drink, sex and tobacco between dawn and sunset. Exceptions to this obligation are made for the young, the infirm, and women during their periods of menstruation. 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.^[76][77]

The 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.^[78][79]

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.^[80] The laws of contract and obligation are also formed around this egalitarian Qur'anic 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.^[81] 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.^[82] 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.^[83][84] 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.^[85]

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.^[86] 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.^[87] 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.^[88] 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.^[89]

Marriage

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

There are two types of marriage mentioned in the Qur'an: nikah and nikah mut‘ah. The first is more common; it aims to be permanent, but can be terminated by the husband in the talaq process, or by the wife seeking divorce 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 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 allowed to a Muslim man according to the Qur'an. 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.

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 also controversy regarding this form of 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 from the people of the Book.
• The woman who is not currently a fornicatress may marry only a man who is not currently a fornicator.
• The fornicator may marry only a fornicatress.
• 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.
• The father, or in some cases the paternal grandfather, may choose a suitable partner for a virgin girl. No other person designated as a girl's guardian may compel her marriage.
• The guardian may not marry the divorced woman or the widow if she did not ask to be married.
• It is obligatory for a man to give bride wealth (gifts) to the woman he marries – "Do not marry unless you give your wife something that is her right."^[90]

Polygamy

In Sharia law, a Muslim man is permitted up to four wives under the rules for nikah. 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.^[91]

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.^[92]

Divorce

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.^[93] 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.^{[Qur'an 2:230]}

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.^[93]

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.^[93]

Under faskh, a qadi judge can end or annul a marriage.^[93] 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.^[94]

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.^[95] 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.^[96]

Justice

The concept of justice embodied in Sharia is entirely different from that of secular Western law. 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.^[97]

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 do not generally employ 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, no cross-examination of witnesses, and no penalty of perjury^[98] (on the assumption that no witness would thus endanger his soul)^[99] Unlike common law, judges' verdicts do not set binding precedents^{[100][101][102]} under the principle of stare decisis^[103] and unlike civil law, Sharia does not utilize formally codified statutes^[104] (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 medieval jurist's manuals and collections of non-binding legal opinions, or fatwas, issued by religious scholars (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.

Sharia courts' rules of evidence also maintain a distinctive custom of prioritizing oral testimony and excluding written and documentary evidence (including forensic and circumstantial evidence), on the basis that it could be tampered with or forged, or possibly due to low levels of literacy in premodern Islamic society.^[105][106] A confession, an oath, or the oral testimony of a witness are the only evidence admissible in a Sharia court, written evidence is only admissible with the attestations of multiple, witnesses deemed reliable by the judge, i.e. notaries.^[107] 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.^[108] 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.^[109] 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.^[110]

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 premodern Islamic society.^[111]

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.^[112] 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.”^[113] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Qur'an should the defendant commit perjury;^[113] instead oaths are a solemn procedure performed as a final part of the evidence process.

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 (at the cost of the safeguards provided in secular legal systems), 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."^[114]

Penalties

In accordance with the Qur'an and several hadith, theft is punished by imprisonment or amputation of hands.^[115] 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. ^{[Qur'an 5:38][116]}

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^[117] For unmarried men and women, the punishment prescribed in the Qur'an and hadith is 100 lashes.^[118]

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

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

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

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

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

Dietary

Islamic law does not present a comprehensive list of pure foods and drinks. However, it prohibits:^[119]

• Swine, blood, the meat of 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. Causing the animal excessive pain during slaughter is a sin.^[120]
• Intoxicants

The prohibition of dead meat is not applicable to fish and locusts.^{[121][122][123]} Also hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,^[124] Jallalah (animals whose meat carries a stink in it because they feed on filth),^[125] tamed donkeys,^[126] and any piece cut from a living animal.^[119][127]

Liquor and Gambling

Liquor and gambling are expressly prohibited in the Qur'an, 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.^[128]

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.^[129] 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.^[130]
• Using the right hand for drinking and eating.^[131]
• Saying "As-Salaam Alaikum" (peace be upon you) when meeting someone and answering with "Wa 'alaikumus salam" (and peace be upon you).^[132]
• Saying "Alhamdulillah" (all gratitude is for only God) when sneezing and responding with "Yarhamukallah" (God have mercy on you).^[133]
• 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^[134][135]
  • Cleaning the nostrils, the mouth, and the teeth^[136] and
  • Cleaning the body after urination and defecation^[137]
• Abstention from sexual relations during the menstrual cycle and the puerperal discharge,^{[Qur'an 2:222]} and ceremonial bath after the menstrual cycle, and Janabah (seminal/ovular discharge or sexual intercourse).^{[Qur'an 4:43][Qur'an 5:6]}
• Burial rituals include funeral prayer^[138] of bathed^[139] and enshrouded body in coffin cloth^[140] and burying it in a grave.^[141]

Rituals

There are two festivals that are considered Sunnah.^[141][142]

• Eid ul-Fitr
• Eid al-Adha

Rituals associated with these festivals are:^[141]

• Sadaqah (charity) before Eid ul-Fitr prayer.^[143]
• The Prayer and the Sermon on Eid day.
• Takbirs (glorifying God) after every prayer in the days of Tashriq (Normally these days are considered to be the ones in which pilgrims stay at Mina once they return from Muzdalifah i.e. 10th, 11th , 12th, and 13th of Dhu al-Hijjah.)
• Sacrifice of unflawed, four legged grazing animal of appropriate age after the prayer of Eid al-Adha in the days of Tashriq.^[144]

Dress codes

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

There are many different opinions, however, as to whether the veil or headscarf is a real Qur'anic obligation. Some scholars such as Yusuf al-Qaradawi claim it is, while others, such as Mohammed Arkoun, Soheib Bencheikh, Abdoldjavad Falaturi, Jamal al Banna claim it isn't. However, the first group appears dominant: "Jamal al Banna has been for a number of years one of the few mainstream Muslim scholars to argue that the Muslim headscarf, or hijab, is not an Islamic obligation." ^[145]

Historical developments and contemporary issues

Map of the Muslim world with the main schools of Islamic law (madhhab)

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.^[146]
• Reformers believe that new Islamic legal theories can produce modernized Islamic law^[147] and lead to acceptable opinions in areas such as women's rights.^[148] However, traditionalists believe that any departure from the legal teachings of the Qur'an as explained by the Prophet Muhammad and put into practice by him is an alien concept that cannot properly be attributed to "Islam".

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 of the largest Muslim countries, including Indonesia, Bangladesh and Pakistan, have largely secular constitutions and laws, with only a few Islamic Law provisions in family law. Turkey has a constitution that is officially strongly secular. India and the Philippines are the only countries in the world that have separate Muslim civil laws, wholly based on Sharia. In India, Muslim civil laws are framed by the Muslim Personal Law board while in the Philippines, it is framed by the Code of Muslim Personal Laws. However, the criminal laws in both the countries are uniform.

In September 2008, 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.^[149] Neither party can be forced into arbitration by a Sharia or a Jewish court.

Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and the Mutaween (religious police) assert social compliance. Laws derived from Sharia are also applied in Afghanistan, Libya and Sudan. Sharia law is officially recognised by the justice system in Israel in matters of personal status of Muslims (e.g. marriage, divorce, guardianship.) Judges' salaries are paid by the state.^[150] Some states in northern Nigeria have reintroduced Sharia courts.^[151] In practice the new Sharia courts in Nigeria have most often meant the re-introduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery.^[152]

Many, including the European Court of Human Rights, consider the punishments prescribed by Sharia in some countries to be barbaric and cruel. Islamic scholars argue that, if implemented properly, the punishments serve as a deterrent to crime.^[153] 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.^[154]

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".^{[155][156][157]}

Contemporary issues

Democracy and human rights

On the one hand, there is much common ground between shari'a and democracy: for example, both value electoral procedure.^[158] On the other hand, several official institutions in democratic countries, such as the European Court of Human Rights, argue that Sharia is incompatible with a democratic state. These incompatibilities have been clarified in several legal disputes.

In 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party on the grounds that the "rules of sharia", which Refah sought to introduce, "were incompatible with the democratic regime," stating that "Democracy is the antithesis of sharia." On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".^{[159][160][161]} Refah's Sharia based notion of a "plurality of legal systems, grounded on religion" was ruled to contravene the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was determined that it would "do away with the State's role as the guarantor of individual rights and freedoms" and "infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy". It was further ruled that, according to Christian Moe:

[T]he Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. [...] It is difficult to declare one's respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.^[162]

On the other side, legal scholar L. Ali Khan concludes "that constitutional orders founded on the principles of Sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall".^[163][164] However, Christian Pippan argues, that this contradicts the political reality in most Islamic states. "While constitutional arrangements to ensure that political authority is exercised within the boundaries of Sharia vary greatly among those nations",^[165] most existing models of political Islam have so far grossly failed to accept any meaningful political competition of the kind that Khan himself has identified as essential for even a limited conception of democracy. Khan, writes Pippan, dismisses verdicts as from the European Court of Human Rights or the Turkish Constitutional Court "as an expression of purely national or regional preferences."^[166]

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

Freedom of speech

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

The Qur'an says that Allah curses the one who harms the Prophet in this world and He connected harm of Himself to harm of the Prophet. There is no dispute that anyone who curses Allah is killed and that his curse demands that he be categorized as an unbeliever. The Judgment of the unbeliever is that he is killed. [...] There is a difference between ... harming Allah and His Messenger and harming the believers. Injuring the believers, short of murder, incurs beating and exemplary punishment. The judgment against those who harm Allah and His Prophet is more severe – the death penalty.^[167]

Slander, gossip, and backbiting, or "ghiba" is regarded as a major sin.^[168]

Homosexuality

Homosexual activity is illicit under Sharia; however, the prescribed penalties differ from one school of jurisprudence to another. For example, these Muslim-majority countries may allow the death penalty for sodomy and homosexual activities: Iran,^[169] Mauritania,^[170] Nigeria,^[171] Saudi Arabia,^[172] Somalia,.^[173] In contrast in Indonesia (outside of Aceh province^[174]) homosexuality and sodomy are legal.^[175]

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 forbidden to pray or fast during 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.^[176] 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.^[177] 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."^[178] Married women may seek employment although it is often thought in patriarchal societies that the woman's role as a wife and mother should have first priority.

Islam unequivocally allows both single and married women to own property in their own right.^[179] Islam grants women the right to inherit property from other family members, and these rights are detailed in the Qur'an. A woman's inheritance is different from a man's, both in quantity and attached obligations. ^{[Qur'an 4:12]} For instance, a daughter's inheritance is usually half that of her brothers ^{[Qur'an 4:11]}. 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,^[180] although some contemporary jurists question the basis of this restriction.^{[180][181][182]} On the other hand, the Qur'an allows Muslim men to marry any woman of the People of the Book, a term that includes Jews, Sabians, and Christians, but they have to be chaste.^[180][183] Furthermore since children have to be brought up in Islamic lifestyles, women have no choice but to convert. However, fiqh law has held that it is mukrah (reprehensible) for a Muslim man to marry a non-Muslim woman in a non-Muslim country.^[180]

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.^[184]

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.^[95] 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.^[96]

Criticism of revisionist historiography of Islamic law

Khaled Abou El Fadl a scholar in Islamic law and a professor at UCLA Law School has criticized attempts to locate Islamic antecedents for Western legal institutions as a "pietistic fiction," arising from Salafist apologetics:

Salafist apologists responded to the intellectual challenges of modernity by adopting pietistic fictions about the Islamic traditions; such fictions eschewed any critical evaluation of Islamic doctrines and celebrated the presumed perfection of Islam. A common apologetical device was to argue that any meritorious or worthwhile modern institution was first invented and realised by Muslims. Thus, Islam liberated women, created a democracy, endorsed pluralism, protected human rights and guaranteed social security long before these institutions ever existed in the West. The main effect of apologetics was to contribute to a sense of intellectual self-sufficiency that often descended into moral arrogance, producing a culture that eschewed self-critical and introspective insight, and embraced the projection of blame and a fantasy-like level of confidence.^[185]

Lebanese human rights lawyer Chibli Mallat expresses similar reservations:

Whether for the classical age or for the contemporary Muslim world, scholarly research on public law must respect a set of axiomatic requirements. First, the perusal of the tradition cannot be construed as a mere retrospective reading. By simply projecting present-day concepts backwards, it is all too easy to force the present into the past either in an apologetically contrived or haughtily dismissive manner. The approach is apologetic and contrived when Bills of Rights are read into, say, the Caliphate of `Umar, with the presupposition that the “just” qualities of `Umar included the complex and articulate precepts of constitutional balance one finds in modern texts.^[186]

International relations professor Bassam Tibi has noted:

There is a challenge to Muslims to develop schemes that are not ambivalent about human rights. Instead of doing this work, apologetic Muslim writers claim that Islam was the very first to establish human rights.^[187]

Women's rights

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

Until the 19th century, Islamic law granted women some legal rights that they did not have under Western legal systems until the 19th and 20th centuries.^[188] For example, French married women, unlike their Muslim sisters, suffered from restrictions on their legal capacity that were removed only in 1965.^[189] Noah Feldman, a Harvard University law professor, notes:

As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.^[190]

Specifically, women were entitled half the inheritance of men. While this seems unfair now, at the time they were entitled to no inheritance whatsoever. In addition, the instruction that men could have up to four wives so long as they could support them was to end the practice where dozens of wives were taken and then abandoned, leaving them destitute.

Status of women under Islamic law since the 19th century

Some argue that at this point in history the aforementioned exploration of freedom is no longer true — that is to say that whilst it is arguable that women had more extensive legal rights under Islamic law than they did under Western legal systems in the past, it is no longer true today.^[191]

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.^[192] 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. ^[193] By the Middle Ages, the Hindus and Buddhists of India had come to be considered dhimmis by their Muslim rulers.^[194] 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.^[195]

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.^[196] 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.^[197]

According to law professor H. Patrick Glenn of McGill University, "Today 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."^[198]

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).^[199]

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.^[64] The "European commenda" limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.^[63]

International law

Islamic law also made "major contributions" to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways.^[200][201] 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.^[200]

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.^[202]

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.^[203] Thus, Sharia has no native tradition of corporate law. This, combined with egalitarian rules of inheritance for male descendants (compare with primogeniture in Christian societies), hindered the concentration of wealth and the development of larger and more sophisticated enterprises, according to Timur Kuran of Duke University. 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.^[204] Such factors, according to Kuran, have played a significant role in retarding economic development in the Middle East.^[205]

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."^[206] The Qanun began to unfold as early as Umar I (586-644 CE).^[206] 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.^[206] Qanun in Arabic means law or rules.

See also

• Glossary of Islamic terms in Arabic* Aqidah
• Dīn
• Halakha - Jewish law
• Islamic Sharia Council - a United Kingdom court with no legal authority
• Mizan - A comprehensive treatise on the contents of Islam written by Javed Ahmad Ghamidi
• Theonomy
• Guardianship of the Islamic Jurists
• Criticism of Hadith

Specific issues

• Diyya - Compensation for crimes
• Tazir - Less severe crimes (thus, "crimes against individuals", not God)
• Qisas - Retaliatory crimes
• Islamic inheritance jurisprudence

Schools of Jurisprudence

• Hanafi
• Hanbali
• Ja'fari
• Maliki
• Shafi`i

Notes

References

• Badr, Gamal Moursi (Spring 1978). "Islamic Law: Its Relation to Other Legal Systems". The American Journal of Comparative Law (The American Journal of Comparative Law, Vol. 26, No. 2) 26 (2 [Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977]): 187–198. doi:10.2307/839667. http://jstor.org/stable/839667 
• Badr, Gamal Moursi; Mayer, Ann Elizabeth (Winter 1984). "Islamic Criminal Justice". The American Journal of Comparative Law (The American Journal of Comparative Law, Vol. 32, No. 1) 32 (1): 167–169. doi:10.2307/840274. http://jstor.org/stable/840274 
• Bakhtiar, Laleh and Kevin Reinhart (1996). Encyclopedia of Islamic Law: A Compendium of the Major Schools. Kazi Publications, ISBN 1-56744-498-9
• Brown, Daniel W. (1996). Rethinking traditions in modern Islamic thought. Cambridge University Press, UK. ISBN 0-521-65394-0
• Dahlén, Ashk (2003). Islamic Law, Epistemology and Modernity, Routledge. ISBN 978-0-415-94529-5
• Doi, Abd ar-Rahman I., and Clarke, Abdassamad (2008). Shari'ah: Islamic Law. Ta-Ha Publishers Ltd., ISBN 978 1 842000 85 3 (paperback), ISBN 978 1 842000 87 8 (hardback)
• El-Fadl, Khaled Abou (2003), Reasoning with God: Rationality and Thought in Islam, Oneworld, ISBN 1-85168-306-2
• Kafadar, Cemal (1996), Between Two Worlds: The Construction of the Ottoman State, University of California Press, ISBN 0-520-20600-2
• Mumisa, Michael (2002) Islamic Law: Theory & Interpretation, Amana Publications, ISBN 1-59008-010-6
• Musa, A. Y. Hadith as Scripture: Discussions on The Authority Of Prophetic Traditions in Islam, New York: Palgrave, 2008
• El-Gamal, Mahmoud A. (2006). Islamic Finance: Law, Economics, and Practice. Cambridge University Press. ISBN 0521864143 
• Gaudiosi, Monica M. (April 1988). "The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College". University of Pennsylvania Law Review (University of Pennsylvania Law Review, Vol. 136, No. 4) 136 (4): 1231–1261. doi:10.2307/3312162. http://jstor.org/stable/3312162 
• Ayaz, Maryam (2007), "Sharia'h and Profits", Apvision Revolutionary Islamic Profitability Models
• Ghamidi, Javed (2001). Mizan. Dar al-Ishraq. OCLC 52901690. 
• Hudson, A. (2003). Equity and Trusts (3rd ed.). London: Cavendish Publishing. ISBN 1-85941-729-9 
• Coulson, Noel James. A history of Islamic law (Islamic surveys). Oxford: University Press, 1964.
• Dien, Mawil Izzi. Islamic Law: From Historical Foundations To Contemporary Practice. Notre Dame: University of Notre Dame Press, 2004.
• 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.
• Berg, Herbert. "Islamic Law." Berkshire Encyclopedia of World History 3 (2005): 1030. In History Reference Center[database online]. Available from Snowden Library (accessed February 11, 2008).
• Makdisi, John A. (June 1999). "The Islamic Origins of the Common Law". North Carolina Law Review 77 (5): 1635–1739 
• Safi, Omid (2003). Progressive Muslims: On Justice, Gender, and Pluralism. Oneworld Publications. ISBN 1-85168-316-X
• ash-Shafi`i, Muhammad ibn Idris (1993), Risala: Treatise on the Foundations of Islamic Jurisprudence, Islamic Texts Society, ISBN 0-946621-15-2
• Shahin, Omar (2007), The Muslim Family in Western Society: A Study in Islamic Law (English), Cloverdale Corporation, ISBN 978-1-929569-30-4
• Weeramantry, Judge Christopher G. (1997). Justice Without Frontiers: Furthering Human Rights. Brill Publishers. ISBN 9041102418. http://books.google.com/?id=3-1sH1wc58UC&printsec=frontcover#v=onepage 
• Weiss, Bernard G. (2002). Studies in Islamic Legal Theory. Boston: Brill Academic publishers. ISBN 9004120661. 

External links

• World Database for Islamic Banking and Finance
• Al-Mawrid Institute of Islamic Sciences
• Shariah Institute
• Human Rights and Islamic Law
• The Islamic Sharia Council UK
• Muslim Arbitration Tribunal
• Private Arrangements: 'Recognizing Sharia' in Britain - anthropologist John R. Bowen explains the working of Britain's sharia courts in a Boston Review article
• Khalid Chraibi: Reforming Islamic family law within the religious framework - The "best practices" strategy
• Khalid Muslims Against Sharia - Muslims Against Sharia: Islamic Reform Movement

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