Sharia

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To Arabic-speaking people, sharia (shariah, shari'a, sharīʿah; Arabic: شريعة‎ šarīʿah, IPA: [ʃaˈriːʕa], "legislation"),^[4] also known as qānūn ʾIslāmī (قانون إسلامي), means the moral code and religious law of a prophetic religion.^[5][6] In English usage, the term "sharia" has been largely identified with Islam.^[7]

Sharia deals with many topics addressed by secular law, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, everyday etiquette and fasting. Though interpretations of sharia vary between cultures, in its strictest definition it is considered the infallible law of God—as opposed to the human interpretation of the laws (fiqh).^[8]

There are two primary sources of sharia law: the precepts set forth in the Quranic verses (ayahs), and the example set by the Islamic prophet Muhammad in the Sunnah.^[9] Where it has official status, sharia is interpreted by Islamic judges (qadis) with varying responsibilities for the religious leaders (imams). For questions not directly addressed in the primary sources, the application of sharia is extended through consensus of the religious scholars (ulama) thought to embody the consensus of the Muslim Community (ijma). Islamic jurisprudence will also sometimes incorporate analogies from the Quran and Sunnah through qiyas, though Shia jurists also prefer reasoning ('aql) to analogy.^[8][9]

The introduction of sharia is a longstanding goal for Islamist movements globally, including in Western countries, but attempts to impose sharia have been accompanied by controversy,^[10][11][12] violence,^{[13][14][15][16][17][18]} and even warfare.^{[19][20][21][22]} Most countries do not recognize sharia; however, some countries in Asia, Africa and Europe recognize sharia and use it as the basis for divorce, inheritance and other personal affairs of their Islamic population.^[23][24] In Britain, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, and this limited adoption of sharia is controversial.^[25][26][27]

The concept of crime, judicial process, justice and punishment embodied in sharia is different from that of secular law.^[28][29] The differences between sharia and secular laws have led to an on-going controversy as to whether sharia is compatible with secular democracy, freedom of thought, and women's rights.^[30][31][32]

In secular jurisprudence, sharia is classified as religious law, which is one of the three major categories that individual legal systems generally fall under, alongside civil law and common law.

Etymology and origins

Scholars describe the word sharia as an archaic Arabic word denoting "pathway to be followed",^[33][34] or "path to the water hole".^[35] The latter definition comes from the fact that the path to water is the whole way of life in an arid desert environment.^[1]

The etymology of sharia as a "path" or "way" comes from the Quranic verse^{[Quran 45:18]}: "Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not."^[34] Malik Ghulam Farid in his Dictionary of the Holy Quran, believes the "Way" in 45:18 (quoted above) derives from shara'a (as prf. 3rd. p.m. sing.), meaning "He ordained". Other forms also appear: shara'u^{[Quran 45:13]} as (prf. 3rd. p.m. plu.), "they decreed (a law)"^{[Quran 42:21]}; and shir'atun (n.) meaning "spiritual law"^{[Quran 5:48]}.^[36]

The Arabic word sharīʿa has origins in the concept of ‘religious law’; the word is commonly used by Arabic-speaking peoples of the Middle East and designates a prophetic religion in its totality. Thus, sharīʿat Mūsā means religious law of Moses (Judaism), sharīʿat al-Masīḥ means religious law of Christianity, sharīʿat al-Madjūs means religious law of Zoroastrianism.^[5] The Arabic expression شريعة الله (God’s Law) is a common translation for תורת אלוהים (‘God’s Law’ in Hebrew) and νόμος τοῦ θεοῦ (‘God’s Law’ in Greek in the New Testament [Rom. 7: 22]).^[37] In contemporary Islamic literature, sharia refers to divine law of Islam as revealed by prophet Muhammad, as well as in his function as model and exemplar of the law.^[5]

History

The origin of sharia is the Quran, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca).^[38]

Sharia underwent fundamental development, 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.^[39] 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.^[39] Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.

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.^[40] Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi'i (767–820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Quran and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.^[41]

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.^{[42][43][44][45]}

Among some 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."^[46] 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."^[46] So, while "each and every law must be rooted in either the Quran or the Sunnah,"^[47] 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".^[47]

The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions.^[48] The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence.^[49] The Abbasid made the institution of qadi independent from the government, but this separation wasn't always respected.^[50]

Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Quran or the sunnah. Imam Shafi'i declared: "a tradition from the Prophet must be accepted as soon as it become known...If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favor of the tradition from the Prophet." Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behavior for Muslims.^[51]

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: 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;^[52] reformers believe that new Islamic legal theories can produce modernized Islamic law^[53] and lead to acceptable opinions in areas such as women's rights.^[54] This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).

There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.^[55]

Definitions and descriptions

Sharia, in its strictest definition, is a divine law, as expressed in the Quran and Muhammad's example (often called the sunnah). As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the law.^[56][57] Many scholars have pointed out that the sharia is not formally a code,^[58] nor a well-defined set of rules.^[59] The sharia is characterized as a discussion on the duties of Muslims^[58] based on both the opinion of the Muslim community and extensive literature.^[60] Hunt Janin and Andre Kahlmeyer thus conclude that the sharia is "long, diverse, and complicated."^[59]

From the 9th century, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.^[61] 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.^[62] 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.^[63][64] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires.^[65] 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.^[66][67]

According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite." Otto's analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.^[68]

Sources of sharia law

There are two sources of Sharia (understood as the divine law): the Quran and Sunnah. The Quran is viewed as the unalterable word of God. Much of the Quran exhorts Muslims to general moral values; only 80 verses of the Quran contain legal prescriptions.^[69] The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah's importance as a source of Sharia, is confirmed by several verses of the Quran (e.g. ^{[Quran 33:21]}).^[70] The Sunnah is primarily contained in the hadith or reports of Muhammad's sayings, his actions, his tacit approval of actions and his demeanor. While there is only one Quran, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasa'i, Ibn Majah. The collections by al-Bukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them.^[71] For Shias, the Sunnah may also include anecdotes The Twelve Imams.^[72]

The process of interpreting the two primary sources of Islamic law is called fiqh (literally meaning "intelligence") or Islamic jurisprudence. While the above two sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh covers all aspects of law, including religious, civil, political, constitutional and procedural law.^[73] Fiqh depends on 4 sources:^[73]

1. Interpretations of the Quran
2. Interpretations of the Sunnah
3. Ijma, consensus amongst scholars ("collective reasoning")
4. Qiyas/Ijtihad analogical deduction ("individual reasoning")

Amongst the sources unique to fiqh, i.e. ijma and qiyas/ijtihad, the former is preferred.^[73] In Shi'a jurisprudence the fourth source may be expanded to include formal logic (mantiq).^[74] Historically the fiqh also came to include comparative law,^[72] local customs (urf)^[75] and laws motivated by public interest, so long as they were allowed by the above four sources.^[75] Because of the involvement of human interpretation, the fiqh is considered fallible, and thus not a part of Sharia (although scholars categorize it as Islamic law).^[73]

There exist five schools of thought of fiqh, all founded within the first four centuries of Islam. Four are Sunni Hanafi, Maliki, Shafi'i and Hanbali and one Shia: Ja'fari (followed by most Shia Muslims^[76]) Many Islamic scholars today advocate renewed approaches to fiqh that don't necessarily follow the traditional five allegiances.^[73] The Salafi movement attracts followers from various schools of fiqh, and is based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims.^[77]

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.^[78] The evolution or refinement of sharia is an effort to reflect God's will more perfectly.^[79]

Islamic jurisprudence (Fiqh)

Schools of law

Madhhab is a Muslim school of law or fiqh (religious jurisprudence). In the first 150 years of Islam, there were many such "schools". In fact, several of the Sahābah, or contemporary "companions" of Muhammad, are credited with founding their own. The prominent Islamic jurisprudence schools of Damascus in Syria (often named Awza'iyya), Kufa and Basra in Iraq, and Medina in Arabia survived as the Maliki madhhab, while the other Iraqi schools were consolidated into the Hanafi madhhab. The Shafi'i, Hanbali, Zahiri and Jariri schools were established later, though the latter school eventually died out.

Some Sunni Muslims prefer one madhhab out of the four (normally a regional preference) but also believe that ijtihad must be exercised by the contemporary scholars capable of doing so. Some rely on taqlid, or acceptance of religious rulings and epistemology from a higher religious authority in deferring meanings of analysis and derivation of legal practices instead of relying on subjective readings.^[80][81]

Categories of human behaviour

Fiqh classifies behaviour 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.^[82]

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.^[82]

The mustahabb category includes proper behaviour 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 behaviour as their guide. A person whose behaviour is not mustahabb can be ruled against by the judge.^[83]

All behaviour which is neither discouraged nor recommended, neither forbidden nor required is of the Mubah; it is permissible.^[82]

Makruh behaviour, 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.^[83]

Haraam behaviour is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Quran. Certain Muslim dietary and clothing restrictions also fall into this category.^[82]

The recommended, neutral and discouraged categories are drawn largely from accounts of the life of the Islamic Prophet Muhammad. To say a behaviour 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 behaviour in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.^[82]

Areas of Islamic law

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The areas of Islamic law include:

• Hygiene and purification laws, including the manner of cleansing, either wudhu or ghusl.
• Economic laws, including Zakāt, the annual almsgiving; Waqf, the religious endowment; the prohibition on interest or Riba; as well as inheritance laws.
• Dietary laws including Dhabihah, or ritual slaughter.
• Theological obligations, including the Hajj or pilgrimage, with its rituals such as Tawaf, Sa'yee and the Stoning of the Devil; salat, formal worship; Salat al-Janazah, the funeral prayer; and celebrating Eid al-Adha.
• Marital jurisprudence, including Nikah, the marriage contract; and divorce, known as Khula if initiated by a woman.
• Criminal jurisprudence, including Hudud, fixed punishments; Tazir, discretionary punishment; Qisas or retaliation; Diyya or blood money; and apostasy.
• Military jurisprudence, including Jihad, offensive and defensive; Hudna or truce; and rules regarding prisoners of war.
• Dress code, including hijab.
• Other topics include customs and behaviour, slavery and the status of non-Muslims.

Classification

Shari'ah law can be organized in different ways and Professor Abdur Rahman I. Doi, author of Shari'ah: The Islamic Law^[84][85] has divided Shari'ah content into five main branches: Family relations, Crime and punishment, Inheritance and disposal of property, The economic system, External and other relations.

"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, Funeral prayer, Taxes, Fasting, Pilgrimage, Trade, Inheritance, Marriage, Divorce, Justice.

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

Application

Legal and court proceedings

Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law. Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents^[86][87][88] under the principle of stare decisis,^[89] and unlike civil law, sharia does not utilize formally codified statutes^[90] (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle).

The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.^[91][92]

A confession, an oath, or the oral testimony of a witness are the main evidence admissible in a hudud case, written evidence is only admissible when deemed reliable by the judge, i.e., notaries.^[93] 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.^[94] 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.^[95] Non-Muslim minorities, however, could and did use sharia courts, even amongst themselves.^[96]

Sharia's rules on written evidence necessarily diminish the utility of written contracts to structure economic relations, and Timur Kuran has noted the predominance of a "largely oral contracting culture" in pre-modern Islamic society.^[97]

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.^[98] 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."^[99] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;^[99] instead oaths are a solemn procedure performed as a final part of the evidence process.

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."^[100]

Application by country

Today, the majority of Muslim countries apply only a few aspects of sharia. Most Muslim countries adopt only a few aspects of sharia, while a few countries apply the entire code.^[101] Most predominantly Muslim countries have not adopted hudud penalties in their criminal justice systems.^[101] The harshest penalties are enforced with varying levels of consistency.^[102] Since the early Islamic states of the eighth and ninth centuries, sharia always existed alongside other normative systems.^[103]

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.^[104]

Sharia law is officially recognised by the justice system in Israel in matters of personal status of Muslims if they choose a sharia court (e.g. marriage, divorce, guardianship). Judges' salaries are paid by the state.^[105] Lebanon also incorporates sharia law for Muslims in family matters only.^[106] Some states in northern Nigeria have reintroduced sharia courts.^[107] In practice the new sharia courts in Nigeria have most often meant the reintroduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery.^[108]

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".^{[109][110][111]}

Enforcement

The mutaween (Arabic: المطوعين، مطوعية‎ muṭawwiʿīn, muṭawwiʿiyyah)^[112] are the government-authorized or government-recognized religious police (or clerical police) of Saudi Arabia.

Support

A 2013 survey based on the opinion of 38,000 individuals by the Pew Forum on Religion and Public Life found that support for making sharia the official law of the land varies significantly among Muslims in different countries. In countries across South Asia, sub-Saharan Africa and the Middle East-North Africa region, a majority favours making sharia their country’s official legal code. By contrast, only a minority of Muslims across Central Asia and Southern and Eastern Europe want sharia to be the official law of the land; among the surveyed countries outside of these regions, Lebanon, Chad, Guinea-Bissau and Tanzania also have a majority against the introduction of official sharia.^[113]

Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia not just within their own borders; their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.^[114] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey's secular government.^[114] These movements can be considered neo-Sharism.^[115]

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.^[116]

Extremists have used the Quran and their own particular version of sharia^[117] to justify acts of war and terror against Western individuals and governments, and also against other Muslims believed to have Western sympathies. ^[118] Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.^[119]

Criticism

Compatibility with democracy

Sharia law involves elements of a democratic system, namely electoral procedure, though syntax as to what a "democracy" constitutes leaves this in question.^[120] Legal scholar L. Ali Khan argues that "constitutional orders founded on the principles of sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall".^[121][122]

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

On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".^{[123][124][125]} 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".^[126]

Human rights

Several major, predominantly Muslim countries criticized the Universal Declaration of Human Rights (UDHR) for its perceived failure to take into account the cultural and religious context of non-Western countries. Iran claimed that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. Therefore in 1990 the Organisation of the Islamic Conference, a group representing all Muslim majority nations, adopted the Cairo Declaration on Human Rights in Islam.

Ann Elizabeth Mayer points to notable absences from the Cairo Declaration: provisions for democratic principles, protection for religious freedom, freedom of association and freedom of the press, as well as equality in rights and equal protection under the law. Article 24 of the Cairo declaration states that "all the rights and freedoms stipulated in this Declaration are subject to the Islamic shari'a".^[127]

Professor H. Patrick Glenn notes that the European concept of human rights developed in reaction to an entrenched hierarchy of class and privilege contrary to, and rejected by, Islam. As implemented in sharia law, protection for the individual is defined in terms of mutual obligation rather than human rights. The concept of human rights, as applied in the European framework, is therefore unnecessary and potentially destructive to these mutual obligations. By "giving priority to human welfare over human liberty," Islamic law justifies the formal inequality of individuals by collective goals.^[128]

Many secularist, human rights, and leading organisations have criticized Saudi Arabia's stance on human rights. In 2009, the journal Free Inquiry summarized this criticism in an editorial: "We are deeply concerned with the changes to the Universal Declaration of Human Rights by a coalition of Islamic states within the United Nations that wishes to prohibit any criticism of religion and would thus protect Islam's limited view of human rights. In view of the conditions inside the Islamic Republic of Iran, Egypt, Pakistan, Saudi Arabia, the Sudan, Syria, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam."^[129]

Freedom of speech

Qadi 'Iyad argues that insulting the Prophet Muhammad is prohibited. Such criticism is blasphemy. However, the Quran does not command a death penalty for blasphemy.^[130]

Freedom of thought, conscience and religion

According to the United Nations' universal declaration of human rights,^[131] every human has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief. Sharia has been criticized for not recognizing this human right. According to scholars^{[30][132][133]} of traditional Islamic law, the applicable rules for religious conversion under Sharia are as follows:

• If a person converts to Islam, or is born and raised as a Muslim, then he or she will have full rights of citizenship in an Islamic state.
• Leaving Islam is a sin and a religious crime. Once any man or woman is officially classified as Muslim, because of birth or religious conversion, he or she will be subject to the death penalty if he or she becomes an apostate, that is, abandons his or her faith in Islam in order to become an atheist, agnostic or to convert to another religion. Before executing the death penalty, Sharia demands that the individual be offered one chance to return to Islam.
• If a person has never been a Muslim, and is not a kafir (infidel, unbeliever), he or she can live in an Islamic state by accepting to be a dhimmi, or under a special permission called aman. As a dhimmi or under aman, he or she will suffer certain limitations of rights as a subject of an Islamic state, and will not enjoy complete legal equality with Muslims.
• If a person has never been a Muslim, and is a kafir (infidel, unbeliever), Sharia demands that he or she should be offered the choice to convert to Islam and become a Muslim; if they reject the offer, he or she may either be killed, enslaved, or ransomed if captured.

According to Sharia theory, conversion of disbelievers and non-Muslims to Islam is encouraged as a religious duty for all Muslims, but leaving Islam (apostasy), expressing contempt for Islam (blasphemy), and religious conversion of Muslims is prohibited.^[134][135] Not all Islamic scholars agree with this interpretation of Sharia theory. In practice, as of 2011, 20 Islamic nations had laws declaring apostasy from Islam as illegal and a criminal offense. This is a violation of the freedom of thought, conscience and religion.^{[136][137][138][139]} In another 2013 report based on international survey of religious attitudes, more than 50% of Muslim population in 6 Islamic countries supported death penalty for any Muslim who leaves Islam (apostasy).^[140][141]

Some scholars claim that Sharia allows religious freedom because a Shari'a verse teaches, "there is no compulsion in religion."^[142] Others scholars claim Sharia recognizes only one proper religion, considers apostasy as sin punishable with death, and members of other religions as kafir (infidel);^[143] All apostates and kafir, Shari'a demands, must be put to death or enslaved or extracted ransoms from.^{[144][145][146][147]} Yet other scholars suggest that Shari'a has become a product of human interpretation and inevitably leads to disagreements about the “precise contents of the Shari'a." In the end, then, what is being applied is not Sharia, but what a particular group of clerics and government decide is Sharia. It is these differing interpretations of Shari'a that explain why many Islamic countries have laws that restrict and criminalize apostasy, proselytism and their citizen's freedom of conscience and religion.^[148][149]

LGBT rights

Homosexual sex is illegal under sharia law, though the prescribed penalties differ from one school of jurisprudence to another. For example, only few Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,^[150] Nigeria,^[151] Saudi Arabia,^[152] and Somalia.^[153] In other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh,^[154] same-sex sexual acts are illegal,^[155] and LGBT people regularly face violence and discrimination.^[156] In Turkey, Bahrain and Jordan, homosexual acts between consenting individuals are legal.^[157] There is a new movement of LGBT Muslims, particularly in Jordan, the UK with Imaan^[158] and Al-Fatiha in America. Books such as Islam and Homosexuality by Siraj Scott has also contributed to playing a proactive role in LGBT- and Islam-related ideas.

Women

Domestic violence

Many scholars^[31][159] claim Shari'a law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.^[160] Other scholars claim wife beating, for nashizah, is not consistent with modern perspectives of Quran.^[161]

One of the verses of Quran relating to permissibility of domestic violence is Surah 4:34.^[162][163] In deference to Surah 4:34, many nations with Shari'a law have refused to consider or prosecute cases of domestic abuse.^{[164][165][166][167]} Shari'a has been criticized for ignoring women's right in domestic abuse cases.^{[168][169][170][171]} Musawah/CEDAW, KAFA and other organizations have proposed ways to modify Shari'a-inspired laws to improve women's rights in Islamic nations, including women's rights in domestic abuse cases.^{[172][173][174][175]}

Personal status laws and child marriage

Shari'a is the basis for personal status laws in most Islamic majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report concludes that Shari'a law provisions are discriminatory against women from a human rights perspective. In legal proceedings under Shari'a law, a woman’s testimony is worth half of a man’s before a court.^[176]

Except for Iran, Lebanon and Bahrain which allow child marriages, the civil code in Islamic majority countries do not allow child marriage of girls. However, with Shari'a personal status laws, Shari'a courts in all these nations have the power to override the civil code. The religious courts permit girls less than 18 years old to marry. As of 2011, child marriages are common in Middle East, accounting for 1 in 6 all marriages in Egypt and 1 in 3 marriages in Yemen. Rape is considered a crime in all countries, but Shari'a courts in Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia in some cases allow a rapist to escape punishment by marrying his victim, while in other cases the victim who complains is often prosecuted with the Sharia crime of Zina (adultery).^{[176][177][178]}

Women's role in clergy

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, and usually lead other women in prayer.^[179] 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.^[180] Islam does not prohibit women from working in a servile, secondary state to men, as it says, "Treat your women well and be kind to them for they are your partners and committed helpers."^[181]

Women's right to property

Islam unequivocally allows both single and married women to own property in their own right.^[182] Islam grants women the right to inherit property from other family members, and these rights are detailed in the Quran. A woman's inheritance is different from a man's, both in quantity and attached obligations.^{[Quran 4:12]} For instance, a daughter's inheritance is usually half that of her brother's.^{[Quran 4:11]}

Until the 20th century, Islamic law granted women certain legal rights that Western legal systems did not grant women.^[183][184] Since the 20th century, Western legal systems have been thought to allow more women's rights than Islamic law, by allowing women to hold equal positions in society, with regards to employment, positions in government, and societal independence as in within familial settings.^[185]

Parallels with Western legal systems

Similarities and influences on English legal institutions have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".^[186]

Hawala, an early informal value transfer system, later influenced the development of the Aval in French civil law and the Avallo in Italian law.^[43] 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.^[42]

Islamic law also made "major contributions" to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways.^[187][188] The "Islamic influence on the development of an international law of the sea" can thus be discerned alongside that of the Roman influence.^[187]

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.^[189]

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.^[190] Interest prohibitions, also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.^[191] Such factors, according to Quran, have played a significant role in retarding economic development in the Middle East.^[192]

See also

References

Sources