Sharia, Sharia law, or Islamic law (Arabic: شريعة‎ (IPA: [ʃaˈriːʕa])) is the religious law forming part of the Islamic tradition.[2] It is derived from the religious precepts of Islam, particularly the Quran and the Hadith. In Arabic, the term sharīʿah refers to God's immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations. The manner of its application in modern times has been a subject of dispute between Muslim traditionalists and reformists.[2]

Traditional theory of Islamic jurisprudence recognizes four sources of sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning), and ijma (juridical consensus).[6] Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali and Jafari—developed methodologies for deriving sharia rulings from scriptural sources using a process known as ijtihad. Traditional jurisprudence distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics. Its rulings assign actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited. Thus, some areas of sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God’s will.

Historically, sharia was interpreted by independent jurists (muftis). Their legal opinions (fatwas) were taken into account by ruler-appointed judges who presided over qāḍī's courts, and by maẓālim courts, which were controlled by the ruler's council and administered criminal law. Ottoman rulers achieved additional control over the legal system by promulgating their own legal code (qanun) and turning muftis into state employees. Non-Muslim (dhimmi) communities had legal autonomy, except in cases of interconfessional disputes, which fell under jurisdiction of qadi's courts.

In the modern era, sharia-based criminal laws have been widely replaced by statutes inspired by European models. Judicial procedures and legal education in the Muslim world were likewise brought in line with European practice. While the constitutions of most Muslim-majority states contain references to sharia, its classical rules were largely retained only in personal status (family) laws. Legislative bodies which codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia, including reinstatement of hudud corporal punishments, such as stoning. In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of sharia advocated by progressive reformers.

The role of sharia has become a contested topic around the world. Attempts to impose it on non-Muslims have caused intercommunal violence in Nigeria[9] and may have contributed to the breakup of Sudan. Some Muslim-minority countries in Asia (such as Israel[148]), Africa, and Europe recognize the use of sharia-based family laws for their Muslim populations.[16] Some jurisdictions in North America have passed bans on use of sharia, framed as restrictions on religious or foreign laws.[149] There are ongoing debates as to whether sharia is compatible with secular forms of government, human rights, freedom of thought, and women's rights.[150][152]

Etymology and usage

Contemporary usage

The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality. For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith. Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims. For many Muslims, the word means simply "justice", and they will consider any law that promotes justice and social welfare to conform to sharia.

Jan Michiel Otto distinguishes four senses conveyed by the term sharia in religious, legal and political discourse:

  • Divine, abstract sharia: God's plan for mankind and the norms of behavior which should guide the Islamic community. Muslims of different perspectives agree in their respect for the abstract notion of sharia, but they differ in how they understand the practical implications of the term.
  • Classical sharia: the body of rules and principles elaborated by Islamic jurists during the first centuries of Islam.
  • Historical sharia(s): the body of rules and interpretations developed throughout Islamic history, ranging from personal beliefs to state legislation and varying across an ideological spectrum. Classical sharia has often served as a point of reference for these variants, but they have also reflected the influences of their time and place.
  • Contemporary sharia(s): the full spectrum of rules and interpretations that are developed and practiced at present.

A related term al-qānūn al-islāmī (القانون الإسلامي, Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.

Etymology

The primary range of meanings of the Arabic word šarīʿah, derived from the root š-r-ʕ, is related to religion and religious law. The lexicographical tradition records two major areas of use where the word šarīʿah can appear without religious connotation. In texts evoking a pastoral or nomadic environment, the word and its derivatives refer to watering animals at a permanent water-hole or to the seashore, with special reference to animals who come there. Another area of use relates to notions of stretched or lengthy. This range of meanings is cognate with the Hebrew saraʿ and is likely to be the origin of the meaning "way" or "path". Both these areas have been claimed to have given rise to aspects of the religious meaning.

Some scholars describe the word šarīʿah as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah ["The Way to Go"]), or "path to the water hole" and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.

Use in religious texts

In the Quran, šarīʿah and its cognate širʿah occur once each, with the meaning "way" or "path". The word šarīʿah was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word torah in the 10th century Arabic Old Testament known as Saʿadya Gaon. A similar use of the term can be found in Christian writers. The Arabic expression Sharīʿat Allāh (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]). In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh, which refers to a scholar's interpretation thereof.

Historical origins

According to the traditional Muslim view, the emergence of Islamic jurisprudence (fiqh) goes back to the lifetime of the Islamic prophet Muhammad. In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith. These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifah, Malik ibn Anas, Al-Shafi‘i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools (madhhabs) of Sunni jurisprudence.

Modern historians have presented alternative theories of the formation of fiqh. At first Western scholars accepted the general outlines of the traditional account. An influential revisionist hypothesis was advanced by Ignac Goldziher and elaborated by Joseph Schacht in the mid-20th century. Schacht argued that the hadith reflected local practices of early Muslim communities and their chains of transmission were extended back to Muhammad's companions at a later date, when it became accepted that legal norms must be formally grounded in scriptural sources. In his view, the real architect of Islamic jurisprudence was al-Shafi'i, who formulated this and other elements of classical legal theory in his work al-risala. Both these accounts gave rise to objections, and modern historians generally adopt more cautious, intermediate positions.

While the origin of hadith remains a subject of scholarly controversy, it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified other aspects, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the early Muslim communities. Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics. At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles. As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder. In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.

Traditional jurisprudence (fiqh)

Fiqh is traditionally divided into the fields of uṣūl al-fiqh (lit. the roots of fiqh), which studies the theoretical principles of jurisprudence, and furūʿ al-fiqh (lit. the branches of fiqh), which is devoted to elaboration of rulings on the basis of these principles.

Principles of jurisprudence (uṣūl al-fiqh)

Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity. However, they believed that use of reason alone is insufficient to distinguish right from wrong, and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad.

Traditional theory of Islamic jurisprudence elaborates how scriptures should be interpreted from the standpoint of linguistics and rhetoric. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date. In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas). It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools. This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question. The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notion of sunnah to include traditions of the imams.

Sources of sharia

  • Quran: In Islam, the Quran is considered to be the most sacred source of law. Classical jurists held its textual integrity to be beyond doubt on account of it having been handed down by many people in each generation, which is known as "recurrence" or "concurrent transmission" (tawātur). Only several hundred verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance, though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means.
  • Hadith: The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic. Early Islamic scholars developed a methodology for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains. These criteria narrowed down the vast corpus of prophetic traditions to several thousand "sound" hadiths, which were collected in several canonical compilations. The hadiths which enjoyed concurrent transmission were deemed unquestionably authentic; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge. The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages. Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings.
  • Consensus (ijma) could in principle elevate a ruling based on probable evidence to absolute certainty. This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error. This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community. However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development. A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion. The cases for which there was a consensus account for less than 1 percent of the body of classical jurisprudence.
  • Analogical reasoning (qiyas) : Qiyas is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule. In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the "cause" (ʿilla) shared by these situations, which in this case is identified to be intoxication. Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate. Twelver Shia jurisprudence does not recognize the use of qiyas, but relies on reason (ʿaql) in its place.

Ijtihad

The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity). A jurist who is qualified to practice ijtihad is known as a mujtahid. The use of independent reasoning to arrive at a ruling is contrasted with taqlid (imitation), which refers to following the rulings of a mujtahid. By the beginning of the 10th century, development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted. From the 18th century on, leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad, which they saw as a return to the vitality of early Islamic jurisprudence.

Decision types (aḥkām)

Sharia rulings fall into one of five categories known as “the five decisions” (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām). It is a sin or a crime to perform a forbidden action or not to perform a mandatory action. Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court. Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while allowed actions entail no judgement from God. Jurists disagree on whether the term ḥalāl covers the first three or the first four categories. The legal and moral verdict depends on whether the action is committed out of necessity (ḍarūra).

Aims of sharia and public interest

Maqāṣid (aims or purposes) of sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times. They were first clearly articulated by al-Ghazali (d. 1111), who argued that maslaha was God's general purpose in revealing the divine law, and that its specific aims was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property. Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law. Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning. Others regarded them as an independent source of law, whose general principles could override specific inferences based on the letter of scripture. While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence. These scholars expanded the inventory of maqasid to include such aims of sharia as reform and women's rights (Rashid Rida); justice and freedom (Mohammed al-Ghazali); and human dignity and rights (Yusuf al-Qaradawi).

Branches of law

The domain of furūʿ al-fiqh (lit. branches of fiqh) is traditionally divided into ʿibādāt (rituals or acts of worship) and muʿāmalāt (social relations). Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries. Each of these terms figuratively stood for a variety of subjects. For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics. Juristic works were arranged as a sequence of such smaller topics, each called a "book" (kitab). The special significance of ritual was marked by always placing its discussion at the start of the work.

Some historians distinguish a field of Islamic criminal law, which combines several traditional categories. Several crimes with scripturally prescribed punishments are known as hudud. Jurists developed various restrictions which in many cases made them virtually impossible to apply. Other crimes involving intentional bodily harm are judged according to a version of lex talionis that prescribes a punishment analogous to the crime (qisas), but the victims or their heirs may accept a monetary compensation (diya) or pardon the perpetrator instead; only diya is imposed for non-intentional harm. Other criminal cases belong to the category of taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge's discretion. In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia.

The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary). Mukhtasars were short specialized treatises or general overviews that could be used in a classroom or consulted by judges. A mabsut, which usually provided a commentary on a mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions. The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance. At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions. Other juristic genres include the qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar.

Schools of law

Image
Turkish mufti (17th century Spanish drawing)

The main Sunni schools of law (madhhabs) are the Hanafi, Maliki, Shafi'i and Hanbali madhhabs. They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab. These four schools recognize each other's validity and they have interacted in legal debate over the centuries. Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world. For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia. The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs. The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought. The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools. The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.

The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question). Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements. Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.


Social context

From the 9th century onward, the power to interpret 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. 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. Over the course of many centuries, imperial, political and technological change, including the Industrial Revolution and the French Revolution, ushered in an era of European world hegemony that gradually included the domination of many of the lands which had previously been ruled by Islamic empires. At the end of the Second World War, the European powers found themselves too weakened to maintain their empires as before. 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.

Application

Application by country

Image
Predominant madhhab by region of the Muslim world

Most Muslim-majority countries incorporate sharia at some level in their legal framework, with many calling it the highest law or the source of law of the land in their constitution.[36] Most use sharia for personal law (marriage, divorce, domestic violence, child support, family law, inheritance and such matters).[154] Elements of sharia are present, to varying extents, in the criminal justice system of many Muslim-majority countries. Saudi Arabia, Yemen, Brunei, Qatar, Pakistan, United Arab Emirates, Iraq, Iran, Afghanistan, Sudan and Mauritania apply the code predominantly or entirely while it applies in some parts of Indonesia.

Most Muslim-majority countries with sharia-prescribed hudud punishments in their legal code do not prescribe it routinely and use other punishments instead.[36][3] The harshest sharia penalties such as stoning, beheading and other forms of the death penalty are enforced with varying levels of consistency.[51]

Since the 1970s, most Muslim-majority countries have faced vociferous demands from their religious groups and political parties for immediate adoption of sharia as the sole, or at least primary, legal framework. Some moderates and liberal scholars within these Muslim countries have argued for limited expansion of sharia.

With the growing Muslim immigrant communities in Europe, there have been reports in some media of "no-go zones" being established where sharia law reigns supreme.[53][54] However, there is no evidence of the existence of "no-go zones", and these allegations are sourced from anti-immigrant groups falsely equating low-income neighborhoods predominantly inhabited by immigrants as "no-go zones".[36][56] In England, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, though this limited adoption of sharia is controversial.[21][155]

Enforcement

Sharia is enforced in Islamic nations in a number of ways, including mutaween (police enforcement) and hisbah. mutaween (Arabic: المطوعين، مطوعيةmuṭawwiʿīn, muṭawwiʿiyyah) are the government-authorized or government-recognized religious police (or clerical police) of Saudi Arabia. Elsewhere, enforcement of Islamic values in accordance with sharia is the responsibility of the Polisi Perda Syariah Islam in Aceh province of Indonesia, the Committee for the Propagation of Virtue and the Prevention of Vice (Gaza Strip) in parts of Palestine, and the Basiji Force in Iran.[7]

Hisbah (Arabic: حسبةḥisb(ah), or hisba) is a historic Islamic doctrine which means "accountability". Hisbah doctrine holds that it is a religious obligation of every Muslim that he or she report to the ruler (Sultan, government authorities) any wrong behavior of a neighbor or relative that violates sharia or insults Islam. The doctrine states that it is the divinely sanctioned duty of the ruler to intervene when such charges are made, and coercively "command right and forbid wrong" in order to keep everything in order according to sharia.[2][158] Al-Jama'a al-Islamiyya (considered a terrorist organization) suggest that enforcement of sharia under the Hisbah doctrine is the sacred duty of all Muslims, not just rulers.[2]

The doctrine of Hisbah in Islam may allow a Muslim to accuse another Muslim, ex-Muslim or non-Muslim for beliefs or behavior that harms Islamic society. This principle has been used in countries such as Egypt, Pakistan and others to bring blasphemy charges against apostates. For example, in Egypt, sharia was enforced on the Muslim scholar Nasr Abu Zayd, through the doctrine of Hisbah for apostasy.[160][161] Similarly, in Nigeria, after twelve northern Muslim-majority states such as Kano adopted a sharia-based penal code between 1999 and 2000, hisbah became the allowed method of sharia enforcement where Muslim citizens could police compliance of moral order based on sharia.[162] In Aceh province of Indonesia, Islamic vigilante activists have invoked Hisbah doctrine to enforce sharia on fellow Muslims as well as demanding that non-Muslims respect sharia.[163][164] Hisbah has been used in many Muslim majority countries to enforce sharia restrictions on blasphemy and criticism of Islam over internet and social media.

Sharia judicial proceedings have significant differences from 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[70][71] under the principle of stare decisis,[72] and unlike civil law, sharia is left to the interpretation in each case and has no formally codified universal statutes.

The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony. Witnesses, in a sharia court system, must be faithful, that is Muslim. Male Muslim witnesses are deemed more reliable than female Muslim witnesses, and non-Muslim witnesses considered unreliable and receive no priority in a sharia court. In civil cases in some countries, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.[134][167] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of sharia, such as those found in Hanbali madhhab.

Criminal cases

A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible, in sharia courts, for hudud crimes, that is the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft. Testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male.[9] 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.[9][9]

Muslim jurists have debated whether and when coerced confession and coerced witnesses are acceptable. In the Ottoman Criminal Code, the executive officials were allowed to use torture only if the accused had a bad reputation and there were already indications of his guilt, such as when stolen goods were found in his house, if he was accused of grievous bodily harm by the victim or if a criminal during investigation mentioned him as an accomplice. Confessions obtained under torture could not be used as a ground for awarding punishment unless they were corroborated by circumstantial evidence.

Civil cases

Quran  recommends written financial contracts with reliable witnesses, although there is dispute about equality of female testimony.[167]

Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice (Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a sharia court as a form of debt. Written contracts are paramount in sharia courts in the matters of dispute that are debt-related, which includes marriage contracts.[9] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.

In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses triumph over written contracts. Sharia system has held that written commercial contracts may be forged. Timur Kuran states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim nations and communities.[9]

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

Diya

In classical jurisprudence monetary compensation for bodily harm (diya or blood money) is assessed differently for different classes of victims. For example, for Muslim women the amount was half that assessed for a Muslim man.[171] Diya for the death of a free Muslim man is twice as high as for Jewish and Christian victims according to the Maliki and Hanbali madhhabs and three times as high according to Shafi'i rules. Several legals schools assessed diya for Magians (majus) at one-fifteenth the value of a free Muslim male.

Modern countries which incorporate classical diya rules into their legal system treat them in different ways. The Pakistan Penal Code modernized the Hanafi doctrine by eliminating distinctions between Muslims and non-Muslims.[172] In Iran, diya for non-Muslim victims professing one of the faiths protected under the constitution (Jews, Christians, and Zoroastrians) was made equal to diya for Muslims in 2004,[174] though according to a 2006 US State Department report, the penal code still discriminates against other religious minorities and women.[175] According to Human Rights Watch and the US State Department, in Saudi Arabia Jewish or Christian male plaintiffs are entitled to half the amount a Muslim male would receive, while for all other non-Muslim males the proportion is one-sixteenth.

Support and opposition

Support

A 2013 survey based on interviews of 38,000 Muslims, randomly selected from urban and rural parts in 39 countries using area probability designs, by the Pew Forum on Religion and Public Life found that a majority—in some cases "overwhelming" majority—of Muslims in a number of countries support making sharia the law of the land, including Afghanistan (99%), Iraq (91%), Niger (86%), Malaysia (86%), Pakistan (84%), Morocco (83%), Bangladesh (82%), Egypt (74%), Indonesia (72%), Jordan (71%), Uganda (66%), Ethiopia (65%), Mali (63%), Ghana (58%), and Tunisia (56%).[80] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less than 50%: Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Kosovo (20%), Albania (12%), Turkey (12%), Kazakhstan (10%), Azerbaijan (8%). Regarding specific averages, in South Asia, Sharia had 84% favorability rating among the respondents; in Southeast Asia 77%; in the Middle-East/North Africa 74%; in Sub-Saharan Africa 64%; in Southern-Eastern Europe 18%; and in Central Asia 12%.[80]

However, while most of those who support implementation of sharia favor using it in family and property disputes, fewer supported application of severe punishments such as whippings and cutting off hands, and interpretations of some aspects differed widely.[80] According to the Pew poll, among Muslims who support making sharia the law of the land, most do not believe that it should be applied to non-Muslims. In the Muslim-majority countries surveyed this proportion varied between 74% (of 74% in Egypt) and 19% (of 10% in Kazakhstan), as percentage of those who favored making sharia the law of the land. Polls demonstrate that for Egyptians, the 'Shariah' is associated with notions of political, social and gender justice.[148]

In 2008, Rowan Williams, the Archbishop of Canterbury, has suggested that Islamic and Orthodox Jewish courts should be integrated into the British legal system alongside ecclesiastical courts to handle marriage and divorce, subject to agreement of all parties and strict requirements for protection of equal rights for women. His reference to the sharia sparked a controversy. Later that year, Nicholas Phillips, then Lord Chief Justice of England and Wales, stated that there was "no reason why sharia principles [...] should not be the basis for mediation or other forms of alternative dispute resolution."[148] A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed supported the introduction of sharia into British law for Muslims.[148] Michael Broyde, professor of law at Emory University specializing in alternative dispute resolution and Jewish law,[148] has argued that sharia courts can be integrated into the American religious arbitration system, provided that they adopt appropriate institutional requirements as American rabbinical courts have done.[148]

Extremism

Image
Use of sharia by country:
  Sharia plays no role in the judicial system.
  Sharia applies to Muslim's personal law.
  Sharia applies in full, including criminal law.
  Regional variations in the application of sharia.

Fundamentalists, wishing to return to basic Islamic religious values and law, have in some instances imposed harsh sharia punishments for crimes, curtailed civil rights and violated human rights. Extremists have used the Quran and their own particular version of sharia to justify acts of war and terror against Muslim as well as non-Muslim individuals and governments, using alternate, conflicting interpretations of sharia and their notions of jihad.[81]

The sharia basis of arguments advocating terrorism is controversial. According to Bernard Lewis, "[a]t no time did the classical jurists offer any approval or legitimacy to what we nowadays call terrorism" and the terrorist practice of suicide bombing "has no justification in terms of Islamic theology, law or tradition". In the modern era the notion of jihad has lost its jurisprudential relevance and instead gave rise to an ideological and political discourse.[180] For al-Qaeda ideologues, in jihad all means are legitimate, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians.[81] According to these interpretations, Islam does not discriminate between military and civilian targets, but rather between Muslims and nonbelievers, whose blood can be legitimately spilled.[81]

Some scholars of Islam, such as Yusuf al-Qaradawi and Sulaiman Al-Alwan, have supported suicide attacks against Israeli civilians, arguing that they are army reservists and hence should be considered as soldiers, while Hamid bin Abdallah al-Ali declared that suicide attacks in Chechnya were justified as a "sacrifice".[81][181] Many prominent Islamic scholars, including al-Qaradawi himself, have issued condemnations of terrorism in general terms.[182] For example, Abdul-Aziz ibn Abdullah Al ash-Sheikh, the Grand Mufti of Saudi Arabia has stated that "terrorizing innocent people [...] constitute[s] a form of injustice that cannot be tolerated by Islam", while Muhammad Sayyid Tantawy, Grand Imam of al-Azhar and former Grand Mufti of Egypt has stated that "attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment".[81]

Opposition

In the Western world, sharia has been called a source of "hysteria",[183] "more controversial than ever", the one aspect of Islam that inspires "particular dread".[184] On the Internet, "dozens of self-styled counter-jihadis" emerged to campaign against sharia law, describing it in strict interpretations resembling those of Salafi Muslims.[184] Also, fear of sharia law and of "the ideology of extremism" among Muslims reportedly spread to mainstream conservative Republicans in the United States.[83] Former House Speaker Newt Gingrich won ovations calling for a federal ban on sharia law.[83] The issue of "liberty versus Sharia" was called a "momentous civilisational debate" by right-wing pundit Diana West.[87] In 2008 in Britain, the future Prime Minister (David Cameron) declared his opposition to "any expansion of Sharia law in the UK."[88] In Germany, in 2014, the Interior Minister (Thomas de Maizière) told a newspaper (Bild), "Sharia law is not tolerated on German soil."[36]

Some countries and jurisdictions have explicit bans on sharia law. In Canada, for example, sharia law has been explicitly banned in Quebec by a 2005 unanimous vote of the National Assembly,[16] while the province of Ontario allows family law disputes to be arbitrated only under Ontario law.[186] In the U.S., opponents of Sharia have sought to ban it from being considered in courts, where it has been routinely used alongside traditional Jewish and Catholic laws to decide legal, business, and family disputes subject to contracts drafted with reference to such laws, as long as they do not violate secular law or the U.S. constitution.[149] After failing to gather support for a federal law making observing Sharia a felony punishable by up to 20 years in prison, anti-Sharia activists have focused on state legislatures.[149] By 2014, bills aimed against use of Sharia have been introduced in 34 states and passed in 11.[149] These bills have generally referred to banning foreign or religious law in order to thwart legal challenges.[149]

According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "[a]nthropological 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."

Criticism

Image
Official from the Taliban beating a woman in Afghanistan for violating local interpretation of sharia.[59]

Compatibility with democracy

Ali Khan states 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".[16][16] Other scholars say sharia is not compatible with democracy, particularly where the country's constitution demands separation of religion and the democratic state.[16][16]

Courts in non-Muslim majority nations have generally ruled against the implementation of sharia, both in jurisprudence and within a community context, based on sharia's religious background. In Muslim nations, sharia has wide support with some exceptions.[16] For example, 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.[190][192]

On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".[92][193][94] 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".

Human rights

Several major, predominantly Muslim countries have 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 declared in the UN assembly that UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. Islamic scholars and Islamist political parties consider 'universal human rights' arguments as imposition of a non-Muslim culture on Muslim people, a disrespect of customary cultural practices and of Islam.[195][196] In 1990, the Organisation of Islamic Cooperation, a group representing all Muslim majority nations, met in Cairo to respond to the UDHR, then adopted the Cairo Declaration on Human Rights in Islam.[198]

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".

In 2009, the journal Free Inquiry summarized the criticism of the Cairo Declaration 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, Bangladesh, 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."

H. Patrick Glenn states that sharia is structured around the concept of mutual obligations of a collective, and it considers individual human rights as potentially disruptive and unnecessary to its revealed code of mutual obligations. In giving priority to this religious collective rather than individual liberty, the Islamic law justifies the formal inequality of individuals (women, non-Islamic people). Bassam Tibi states that sharia framework and human rights are incompatible.[200] Abdel al-Hakeem Carney, in contrast, states that sharia is misunderstood from a failure to distinguish sharia from siyasah (politics).[201]

Freedom of speech

The Cairo Declaration on Human Rights in Islam conditions free speech with sharia law: Article 22(a) of the Declaration states that "Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariah."[202]

Blasphemy in Islam is any form of cursing, questioning or annoying God, Muhammad or anything considered sacred in Islam.[203] The sharia of various Islamic schools of jurisprudence specify different punishment for blasphemy against Islam, by Muslims and non-Muslims, ranging from imprisonment, fines, flogging, amputation, hanging, or beheading. In some cases, sharia allows non-Muslims to escape death by converting and becoming a devout follower of Islam.

Blasphemy, as interpreted under sharia, is controversial.[96] Muslim nations have petitioned the United Nations to limit "freedom of speech" because "unrestricted and disrespectful opinion against Islam creates hatred".[97] Other nations, in contrast, consider blasphemy laws as violation of "freedom of speech", stating that freedom of expression is essential to empowering both Muslims and non-Muslims, and point to the abuse of blasphemy laws, where hundreds, often members of religious minorities, are being lynched, killed and incarcerated in Muslim nations, on flimsy accusations of insulting Islam.

Freedom of thought, conscience and religion

According to the United Nations' Universal Declaration of Human Rights, every human has the right to freedom of thought, conscience and religion; this right includes freedom to change their religion or belief. Sharia has been criticized for not recognizing this human right. According to scholars[150][101] of 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.[150]
  • 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.[150]
  • 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.[150]
  • 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 he or she rejects the offer, he or she may become a dhimmi. Failure to pay the tax may lead the non-Muslim to either be enslaved, killed or ransomed if captured.[150]

According to sharia theory, conversion of disbelievers and non-Muslims to Islam is encouraged as a religious duty for all Muslims, and leaving Islam (apostasy), expressing contempt for Islam (blasphemy), and religious conversion of Muslims is prohibited.[205] 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. Such laws are incompatible with the UDHR's requirement of freedom of thought, conscience and religion.[12][63] In another 2013 report based on international survey of religious attitudes, more than 50% of Muslim population in 6 out of 49 Islamic countries supported death penalty for any Muslim who leaves Islam (apostasy).[65] However it is also shown that the majority of Muslims in the 43 nations surveyed did not agree with this interpretation of sharia.

Some scholars claim sharia allows religious freedom because a sharia verse teaches, "there is no compulsion in religion."[207] Other scholars claim sharia recognizes only one proper religion, considers apostasy as sin punishable with death, and members of other religions as kafir (infidel); or hold that sharia demands that all apostates and kafir must be put to death, enslaved or be ransomed.[208] Yet other scholars suggest that sharia 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 sharia that explain why many Islamic countries have laws that restrict and criminalize apostasy, proselytism and their citizens' freedom of conscience and religion.

LGBT rights

Image
Shariah Court in Malacca, Malaysia.

Homosexual intercourse is illegal under sharia law, though the prescribed penalties differ from one school of jurisprudence to another. For example, some Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,[108] Saudi Arabia,[109] and in other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh,[164][110][209] same-sex sexual acts are illegal,[111] and LGBT people regularly face violence and discrimination.[112]

Women

Domestic violence

Many claim sharia law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.[210] Other scholars claim wife beating, for nashizah, is not consistent with modern perspectives of the Quran.

One of the verses of the Quran relating to permissibility of domestic violence is Surah 4:34.[113][115] Sharia has been criticized for ignoring women's rights in domestic abuse cases.[211][212][214] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify sharia-inspired laws to improve women's rights in Islamic nations, including women's rights in domestic abuse cases.[215][217][118]

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 sharia law provisions are discriminatory against women from a human rights perspective. In legal proceedings under sharia law, a woman’s testimony is worth half of a man’s before a court.[134]

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 sharia personal status laws, sharia 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 a few Middle Eastern countries, accounting for 1 in 6 of all marriages in Egypt and 1 in 3 marriages in Yemen. UNICEF and other studies state that the top five nations in the world with highest observed child marriage rates – Niger (75%), Chad (72%), Mali (71%), Bangladesh (64%), Guinea (63%) – are Islamic-majority countries where the personal laws for Muslims are sharia-based.[21][219] In his Cairo speech, President Obama spoke out against child marriage.[221]

Rape is considered a crime in all countries, but sharia 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 crime of Zina (adultery).[134][124][125]

Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran. A woman's inheritance is unequal and less than a man's, and dependent on many factors.[Quran ][223] For instance, a daughter's inheritance is usually half that of her brother's.[Quran ][223]

Until the 20th century, Islamic law granted Muslim women certain legal rights, such as the right to own property received as Mahr (brideprice) at her marriage. However, Islamic law does not grant non-Muslim women the same legal rights as the few it did grant Muslim women. Sharia recognizes the basic inequality between master and women slave, between free women and slave women, between Believers and non-Believers, as well as their unequal rights.[226] Sharia authorized the institution of slavery, using the words abd (slave) and the phrase ma malakat aymanukum ("that which your right hand owns") to refer to women slaves, seized as captives of war.[104] Under Islamic law, Muslim men could have sexual relations with female captives and slaves.[228]

Slave women under sharia did not have a right to own property or to move freely. Sharia, in Islam's history, provided a religious foundation for enslaving non-Muslim women (and men), but allowed for the manumission of slaves. However, manumission required that the non-Muslim slave first convert to Islam. A non-Muslim slave woman who bore children to her Muslim master became legally free upon her master's death, and her children were presumed to be Muslims like their father, in Africa and elsewhere.

Starting with the 20th century, Western legal systems evolved to expand women's rights, but women's rights under Islamic law have remained tied to the Quran, hadiths and their fundamentalist interpretation as sharia by Islamic jurists.

Elements of Islamic law have parallels in western legal systems. As example, the influence of Islam on the development of an international law of the sea can be discerned alongside that of the Roman influence.[229]

Makdisi states Islamic law also parallels the legal scholastic system in the West, which gave rise to the modern university system.[231] He writes that the triple status of faqih ("master of law"), mufti ("professor of legal opinions") and mudarris ("teacher"), conferred by the classical Islamic legal degree, had its equivalents in the medieval Latin terms magister, professor and doctor, respectively, although they all came to be used synonymously in both East and West.[231] Makdisi suggests that the medieval European doctorate, licentia docendi was modeled on the Islamic degree ijazat al-tadris wa-l-ifta’, of which it is a word-for-word translation, with the term ifta’ (issuing of fatwas) omitted.[231][232] He also argues that these systems shared fundamental freedoms: the freedom of a professor to profess his personal opinion and the freedom of a student to pass judgement on what he is learning.[231]

There are differences between Islamic and Western legal systems. For example, 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.[233] Interest prohibitions imposed secondary costs by discouraging record keeping and delaying the introduction of modern accounting.[234] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.[235]

See also