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Sharia
From Wikipedia, the free encyclopedia
Sharia (Arabic: شريعة transliteration: Šarīʿah) is the body of Islamic religious law. The term means "way" or "path to the water source"; it is the legal framework within which the public and private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence and for Muslims living outside the domain. Sharia deals with many aspects of day-to-day life, including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.
There is no strictly static set of laws of sharia. Sharia is more of a system of how law ought to serve humanity, a consensus of the unified spirit, based on the Qur'an (the religious text of Islam), hadith (sayings and doings of Muhammad and his companions), Ijma (consensus), Qiyas (reasoning by analogy) and centuries of debate, interpretation and precedent.
Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. Most Sunni Muslims follow Hanafi, Hanbali, Maliki or Shafii, while most Shia Muslims follow the jaafari school of thought and are considered Twelvers.[1]
Islamic law is now the most widely used religious law, and one of the three most common legal systems of the world alongside common law and civil law.[2] During the Islamic Golden Age, classical Islamic law had a fairly significant influence on the development of common law,[3] and also influenced the development of several civil law institutions.[4]
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Etymology
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The term sharia itself derives from the verb "shara'a" (Arabic: شرع), which according to Abdul Mannan Omar's "Dictionary of the Holy Qur'an" connects to the idea of "system of divine law; way of belief and practice".[Qur'an 45:18]
Legal scholar L. Ali Khan explains that "the concept of sharia has been thoroughly confused in legal and common literature. For some Muslims, sharia consists of the Qur'an and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define sharia as law based upon the Qur'an, the Sunna, and classical fiqh derived from consensus (ijma) and analogy (qiyas).This definition of sharia inappropriately lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Qur'an and the Sunnah. The Qur'an and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to" dissipate confusion around the term Sharia.[5]
In the context of Islam
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Mainstream Islam distinguishes between fiqh (deep understanding, discernment), which refers to the inferences drawn by scholars, and sharia, which refers to the principles that lie behind the fiqh. Scholars hope that fiqh (jurisprudence) and sharia (law) are in harmony in any given case, but they cannot be sure.[6]
Sharia has certain laws which are regarded as divinely ordained, concrete and timeless for all relevant situations (for example, the ban against drinking liquor as an intoxicant). It also has certain laws which derived from principles established by Islamic lawyers and judges (mujtahidun).
Sources of Islamic law
The primary sources of Islamic law are the Qur'an and Sunnah.
To this, traditional Sunni Muslims add the consensus (ijma) of Muhammad's companions (sahaba) and Islamic jurists (ulema) on certain issues, and drawing analogy from the essence of divine principles and preceding rulings (qiyas). In situations where no concrete rules exist under the sources, law scholars use qiyas — various forms of reasoning, including by analogy. The consensus of the community or people, public interest, and others are also accepted as secondary sources where the first four primary sources allow.[citation needed]
Shi'a Muslims reject this approach. They strongly reject analogy (qiyas) as an easy way to innovations (bid'ah), and also reject consensus (ijma) as having any particular value in its own. During the period that the Sunni scholars developed those two tools, the Shi'a Imams were alive, and Shi'a view them as an extension of the Sunnah, so they view themselves as only deriving their laws (fiqh) from the Qur'an and Sunnah. A recurring theme in Shi'a jurisprudence is logic (mantiq),[7] something Shi'a believe they mention, employ and value to a higher degree than Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Qur'an and Sunnah.
In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Qur'an, anecdotes of Muhammad's practices and those of the 12 Imams, and the intellect (aql). The practices called Sharia today, however, also have roots in local customs (al-urf).[citation needed]
Islamic jurisprudence
Islamic jurisprudence is called fiqh and is divided into two parts:
- Usul al-fiqh (أصول الفقه) — roots of the law: the study of the sources and methodology
- Furu' al-fiqh (فروع الفقه) — branches of the law: the practical rules[citation needed]
The comprehensive nature of Sharia law is due to the belief that the law must provide all that is necessary for a person's spiritual and physical well-being. All possible actions of a Muslim are divided (in principle) into five categories:
- obligatory
- meritorious
- permissible
- reprehensible
- forbidden
Classical Islamic law
The formative period of Islamic jurisprudence 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.[8] 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 ar-Risālah. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.[9]
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.[3][4][10][11]
Origins
At the heart of Islamic law lies the teachings of God and the acts and sayings of His Prophet, Muhammad;[12] therefore, sharia, Islamic law, is founded on the Qur'an and the Sunnah. However, sharia was not fully developed at the time of Muhammad's death, but rather it evolved around the Muslim community or Ummah through which it would serve.
When sharia began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born,[13] a sense of community did not exist. Life in the desert was nomadic and tribal, thus the only factor that tied people together into various tribes was through common ancestry.[12] However, the nature of Islam challenged that ideology and brought all those who professed their submission to Islam into the Ummah. Additionally, Islam was not just a religion but a way of life and being that it transformed those who were once enemies into neighbors laws had to be instilled and so the doctrines of sharia took root. All who are Muslim are judged by sharia[14] – no matter the location or the culture.
However, people do not change overnight nor do their habits of everyday life – sharia was indeed guided through its development by lifestyles of the tribes in which was initially absorbed into Islam. Thus, through the understandings of the tribe, Islamic law would be a law of the community – for the community by the community – even if initially proposed by an individual “for they could not form part of the tribal law unless and until they were generally accepted as such.”[12] 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.”[12] So, while “each and every law must be rooted in either the Quran or the Sunna,”[15] without contradiction, tribal life brought about a sense of participation. Such participation is further reinforced by Muhammad who stated, “My community will never agree in error”[16] and thus, later recorded as a hadith.
After the death of Muhammad sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632-34) and Umar (634-44) in which many decision making matters were brought to the attention of the Prophet's closest comrades for consultation.[17] In AD 662, during the reign of Mu'awiya b. Abu Sufyan, life ceased to be nomadic and undertook an urban transformation which in turn created matters not originally covered by Islamic law.[17] Each and every gain, loss, and turn of Islamic society has played an active role in developing sharia which branches out into fiqh and Qanun respectively.
Comparisons with common law
The methodology of legal precedent and reasoning by analogy (Qiyas) used in Islamic law was similar to that of the common law legal system.[10] According to Justice Gamal Moursi Badr, Islamic law is like common law in that it "is not a written law" and the "provisions of Islamic law are to be sought first and foremost in the teachings of the authoritative jurists" (Ulema), hence Islamic law may "be called a lawyer's law if common law is a judge's law."[4]
Influence on English common law
It has been suggested that several fundamental English common law institutions may have been derived or adapted from similar legal instututions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily (see Arab-Norman culture), and "through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England."[18] and also by Crusaders during the Crusades. The connection with Norman law in Normandy may be real, but it should be remembered that common law owes a great deal to Anglo-Saxon traditions and forms, and in its current form represents an interplay between the two systems.
According to Professor John Makdisi, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif" in classical Maliki jurisprudence.[3] The Islamic Hawala institution also influenced the development of the agency institution in English common law.[4] Other English legal institutions such as "the scholastic method, the license to teach," the "law schools known as Inns of Court in England and Madrasas in Islam" may have also originated from Islamic law. These influences have led Makdisi to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".[3]
The Waqf in Islamic law, which developed during the 7th-9th centuries, bears a notable resemblance to the trusts in the English trust law.[19] For example, every Waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries.[20] Under both a Waqf and a trust, "property is reserved, and its usufruct appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus becomes inalienable; estates for life in favor of successive beneficiaries can be created" and "without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees or mutawillis."[21] The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East.[22][23] The introduction of the trust, or "use" was primarily motivated by the need to avoid medieval inheritance taxes. By transferring legal title to a third party, there was no need to pay feudal dues on the death of the father. In those times, it was common for an underage child to lose many of his rights to his feudal overlord if he succeeded before he came of age.
The precursor to the English jury trial was the Lafif trial in classical Maliki jurisprudence, which was developed between the 8th and 11th centuries in North Africa and Islamic Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters "which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff." The only characteristic of the English jury which the Islamic Lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to Professor John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus likely that the concept of the Lafif may have been introduced to England by the Normans and then evolved into the modern English jury.[3]. However, the hearing of trials before a body of citizens existed in the hundredcourts before Norman Conquest.
The precursor to the English assize of novel disseisin was the Islamic Istihqaq, an action "for the recovery of usurped land", in contrast to the previous Roman law which "emphasized possession in resolving such disputes." The "assize of novel disseisin broke with this tradition and emphasized ownership, as is found in the Islamic law of Istihqaq."[24] Islamic law also introduced the notion of allowing an accused suspect or defendant to have an agent or lawyer, known as a wakil, handle his/her defense. This was in contrast to early English common law, which "used lawyers to prosecute but the accused were left to handle their defense themselves." The English Parliament did not allow those accused of treason the right to retain lawyers until 1695, and for those accused of other felonies until 1836.[25]
Islamic jurists formulated early contract laws which introduced the application of formal rationality, legal rationality, legal logic (see Logic in Islamic philosophy) and legal reasoning in the use of contracts.[26] Islamic jurists also introduced the concepts of recession (Iqalah), frustration of purpose (istihalah al-tanfidh or "impossibility of performance"), Act of God (Afat Samawiyah or "Misfortune from Heaven") and force majeure in the law of contracts.[27] However, recission, frustration and other core concepts in the law of contract are relatively recent introductions into the Law of England, dating back to the Victorian period. Early case law indicates that it was impossible to rescind a contract for frustration even where performance became impossible.
Other possible influences of Islamic law on English common law include the concepts of a passive judge, impartial judge, res judicata, the judge as a blank slate, individual self-definition, justice rather than morality, the law above the state, individualism, freedom of contract, privilege against self-incrimination, fairness over truth, individual autonomy, untrained and transitory decision making, overlap in testimonial and adjudicative tasks, appeal, dissent, day in court, prosecution for perjury, oral testimony, and the judge as a moderator, supervisor, announcer and enforcer rather than an adjudicator.[28]
Comparison with law in the United States
Similarities between Islamic law and the common law of the United States have also been noted, particularly in regards to Constitutional law. According to Sameer S. Vohra, the United States Constitution is similar to the Qur’an in that the Constitution is "the supreme law of the land and the basis from which the laws of the legislature originate."[29] According to Asifa Quraishi, the methods used in the judicial interpretation of the Constitution are similar to that of the Qur'an, including the methods of "plain meaning literalism, historical understanding “originalism,” and reference to underlying purpose and spirit."[30] Vohra further notes that the legislature is similar to the Sunnah in that the "legislature takes the framework of the Constitution and makes directives that involve the specific day-to-day situations of its citizens."[29] He also writes that the judicial decision-making process is similar to the qiyas and ijma methods in that judicial decision-making is "a means by which the law is applied to individual disputes", that "words of the Constitution or of statutes do not specifically address all the possible situations to which they may apply" and that "at times, it requires the judiciary to either use the consensus of previous decisions or reason by analogy to find the correct principle to resolve the dispute."[31]
The earliest known lawsuits may also date back to Islamic law. There was a hadith tradition which reported that the Caliph Uthman Ibn Affan (580-656) attempted to sue a Jewish subject for recovery of a suit of armour, but his case was unsuccessful due to a lack of competent witnesses.[32] The concept of a lawsuit was also described in the Ethics of the Physician by Ishaq bin Ali al-Rahwi (854–931) of al-Raha, Syria, as part of an early medical peer review process, where the notes of a practicing Islamic physician were reviewed by peers and he/she could be sued by a maltreated patient if the reviews were negative.[33]
The earliest known prohibition of illegal drugs occurred under Islamic law, which prohibited the use of Hashish, a preparation of cannabis, as a recreational drug. Classical jurists in medieval Islamic jurisprudence, however, accepted the use of the Hashish drug for medicinal and therapeutic purposes, and agreed that its "medical use, even if it leads to mental derangement, remains exempt" from punishment. In the 14th century, the Islamic jurist Az-Zarkashi spoke of "the permissibility of its use for medical purposes if it is established that it is beneficial."[34] According to Mary Lynn Mathre, with "this legal distinction between the intoxicant and the medical uses of cannabis, medieval Muslim theologians were far ahead of present-day American law."[35]
Other similarities
Precursors to common law concepts in property law were found in classical Islamic property law, including the concepts of leasehold (including duty to take and keep in possession and holdover tenancy), joint ownership (including partition, pledge, bailment, lost property, license and trespass), acquisition (including intestate succession), duress (Ikrah), transfer by sale (including contract formation, meeting of the minds, declaration, duress and risk of loss), transfer by gift, rights and restrictions on transfers (including restraint on alienation, appurtenance, fixture, preemption, mortgage and water rights), will (including entitlement to shares, revocation, ademption, lapse, abatement and ambiguity), attacks on ownership (including concepts of theft, robbery, usurpation, nuisance, and defense of necessity), and causation (including remote consequences, intervening human cause, concurrent cause and uncertain cause). Many of these concepts were summarized in Islamic juristic texts, including the Hidayah by the Hanafi jurist al-Marghilani, the Minhaj al-Talibin by the Shafi`i jurist Yahya ibn Sharaf al-Nawawi, the Mukhtasar by the Maliki jurist Khalil ibn Ishaq al-Jundi, the Fatawa-e-Alamgiri by Hanafi jurists, and the Kasani.[11]
While some see the Islamic concept of Istihsan as being equivalent to the concept of equity in English law, others see it as being equivalent to the "reasoned distinction of precedent" in American law, in which case Istihsan may be referred to as the "reasoned distinction of qiyas (reasoning by analogy)". John Makdisi writes:[36]
Other precursors to common law concepts are found in classical Islamic law and jurisprudence, including advocacy,[37] ratio decidendi (illah),[38] arbitrary decision-making, legal opinion, discretion,[39] public policy (Istislah and Maslaha),[39][11] freedom of religion, equal protection, reasoning by analogy and distinction, and consensus and precedent.[11]
Influence on civil law
One of the institutions developed by classical Islamic jurists which influenced civil law was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the Aval in French civil law and the Avallo in Italian law.[4] 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.[3]
The transfer of debt, which was not permissible under Roman law but is practiced in modern civil law, may also have origins in Islamic law.[40] The concept of an agency was also an "institution unknown to Roman law", where it was not possible for an individual to "conclude a binding contract on behalf of another as his agent." The concept of an agency was introduced by Islamic jurists, and thus the civil law conception of agency may also have origins in Islamic law.[41] The Siete Partidas of Alfonso X, which was regarded as a "monument of legal science" in the civil law tradition, was also influenced by the Islamic legal treatise Villiyet written in Islamic Spain.[42][43]
Islamic law also introduced "two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith", which was a precursor to the concept of pacta sunt servanda in civil law and international law. Another influence of Islamic law on the civil law tradition was the presumption of innocence, which was introduced to Europe by Louis IX of France soon after he returned from Palestine during the Crusades. Prior to this, European legal procedure consisted of either trial by combat or trial by ordeal. In contrast, Islamic law was based on the presumption of innocence from its beginning, as declared by the Caliph Umar in the 7th century:[42]
The concept of Ombudsmen was derived from the example of the second Muslim Caliph, Umar (634-644) and the concept of Qadi al-Qadat (developed in the Muslim world), which influenced the Swedish King, Charles XII. In 1713, fresh from self-exile in Turkey, Charles XII created the Office of Supreme Ombudsman, which soon became the Chancellor of Justice.[44]
Influence on international law
- See also: Islamic Jurisprudence: An International Perspective, Islamic economics in the world, Islamic military jurisprudence, and Prisoners of war in Islam
The first treatise on international law (Siyar in Arabic) was the Introduction to the Law of Nations written at the end of the 8th century by Mohammed bin Hassan al-Shaybani[45] (d. 804), an Islamic jurist of the Hanafi school,[46] eight centuries before Hugo Grotius wrote the first European treatise on the subject. Al-Shaybani wrote a second more advanced treatise on the subject, and other jurists soon followed with a number of other multi-volume treatises written on international law during the Islamic Golden Age.[45] They dealt with both public international law as well as private international law.[47]
These early Islamic legal treatises covered the application of Islamic ethics, Islamic economic jurisprudence and Islamic military jurisprudence to international law,[46] and were concerned with a number of modern international law topics, including the law of treaties; the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatant civilians; contracts across the lines of battle; the use of poisonous weapons; and devastation of enemy territory.[45] The Umayyad and Abbasid Caliphs were also in continuous diplomatic negotiations with the Byzantine Empire on matters such as peace treaties, the exchange of prisoners of war, and payment of ransoms and tributes.[48]
After Sultan al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:[45]
"Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power."[49]
The Islamic legal principles of international law were largely based on Qur'an and the Sunnah of Muhammad, who gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's successor and close companion, Abu Bakr, in the form of ten rules for the Muslim army:[50]
Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.[50]
Islamic private international law arose as a result of the vast Muslim conquests and maritime explorations, giving rise to various conflicts of laws. A will, for example, was "not enforced even if its provisions accorded with Islamic law if it violated the law of the testator." Islamic jurists also developed elaborate rules for private international law regarding issues such as contracts and property, family relations and child custody, legal procedure and jurisdiction, religious conversion, and the return of aliens to an enemy country from the Islamic world. Democratic religious pluralism also existed in classical Islamic law, as the religious laws and courts of other religions, including Christianity, Judaism and Hinduism, were usually accommodated within the Islamic legal framework, as seen in the early Caliphate, al-Andalus, Indian subcontinent, and the Ottoman Millet system.[48][51]
Islamic law also introduced "two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith", which was a precursor to the concept of pacta sunt servanda in civil law and international law. Islamic law also "introduced it to international relations, making possible the systematic development of conventional law, which became a partial substitute for custom."[42]
Islamic law also made "major contributions" to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways. These included Muslim sailors being "paid a fixed wage “in advance” with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions" in which contracts should specify “a known fee for a known duration”, in contrast to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea venture’s profit, with shares allotted by rank, only after a voyage’s successful conclusion." Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the “high seas”, and they also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo." Islamic law also "departed from Justinian’s Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was also a precursor to the European commenda limited partnership. The “Islamic influence on the development of an international law of the sea” can thus be discerned alongside that of the Roman influence.[52]
There is evidence that early Islamic international law influenced the development of Western international law, through various routes such as the Crusades, Norman conquest of the Emirate of Sicily, and Reconquista of al-Andalus.[42] In particular, the Spanish jurist Francisco de Vitoria, and his successor Grotius, may have been influenced by Islamic international law through earlier Islamic-influenced writings such as the 1263 work Siete Partidas of Alfonso X, which was regarded as a "monument of legal science" in Europe at the time and was influenced by the Islamic legal treatise Villiyet written in Islamic Spain.[42][43]
Influence on legal education
Madrasahs were the first law schools, and it is likely that the "law schools known as Inns of Court in England" may have been derived from the Madrasahs which taught Islamic law and jurisprudence.[3]
The origins of the doctorate dates back to the ijazat attadris wa 'l-ifttd ("license to teach and issue legal opinions") in the medieval Islamic legal education system, which was equivalent to the Doctor of Laws qualification and was developed during the 9th century after the formation of the Madh'hab legal schools. To obtain a doctorate, a student "had to study in a guild school of law, usually four years for the basic undergraduate course" and ten or more years for a post-graduate course. The "doctorate was obtained after an oral examination to determine the originality of the candidate's theses," and to test the student's "ability to defend them against all objections, in disputations set up for the purpose" which were scholarly exercises practiced throughout the student's "career as a graduate student of law." After students completed their post-graduate education, they were awarded doctorates giving them the status of faqih (meaning "master of law"), mufti (meaning "professor of legal opinions") and mudarris (meaning "teacher"), which were later translated into Latin as magister, professor and doctor respectively.[3]
Human rights
- Further information: Early reforms under Islam and Islamic Jurisprudence: An International Perspective
In the field of human rights, early Islamic jurists introduced a number of advanced legal concepts before the 12th century which anticipated similar modern concepts in the field. These included the notions of the charitable trust and the trusteeship of property; the notion of brotherhood and social solidarity; the notions of human dignity and the dignity of labour; the notion of an ideal law; the condemnation of antisocial behavior; the presumption of innocence; the notion of "bidding unto good" (assistance to those in distress); and the notions of sharing, caring, universalism, fair industrial relations, fair contract, commercial integrity, freedom from usury, women's rights, privacy, abuse of rights, juristic personality, individual freedom, equality before the law, legal representation, non-retroactivity, supremacy of the law, judicial independence, judicial impartiality, limited sovereignity, tolerance, and democratic participation. Many of these concepts were adopted in medieval Europe through contacts with Islamic Spain and the Emirate of Sicily, and through the Crusades and the Latin translations of the 12th century.[53]
The concept of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter." Islamic jurists also anticipated the concept of the rule of law, the equal subjection of all classes to the ordinary law of the land, where no person is above the law and where officials and private citizens are under a duty to obey the same law. A Qadi (Islamic judge) was also not allowed to discriminate on the grounds of religion, race, colour, kinship or prejudice. There were also a number of cases where Caliphs had to appear before judges as they prepared to take their verdict.[54] There is evidence that John Locke's formulation of inalienable rights and conditional rulership, which were present in Islamic law centuries earlier, may have also been influenced by Islamic law, through his attendance of lectures given by Edward Pococke, a professor of Islamic studies.[55]
Early Islamic law recognized two sets of human rights. In addition to the category of civil rights and political rights (covered in the Universal Declaration of Human Rights), Islamic law also recognized an additional category: social, economic and cultural rights. This latter category was not recognized in the Western legal tradition until the International Covenant on Economic, Social and Cultural Rights in 1966.[56] The right of privacy, which was not recognized in Western legal traditions until modern times, was recogonized in Islamic law since the beginning of Islam.[49] In terms of women's rights, women generally had more legal rights under Islamic law than they did under Western legal systems until the 19th and 20th centuries.[57] For example, "French married women, unlike their Muslim sisters, suffered from restrictions on their legal capacity which were removed only in 1965."[58]
The concepts of welfare and pension were introduced in early Islamic law as forms of Zakat (charity), one of the Five Pillars of Islam, since the time of the Abbasid caliph Al-Mansur in the 8th century. The taxes (including Zakat and Jizya) collected in the treasury of an Islamic government was used to provide income for the needy, including the poor, elderly, orphans, widows, and the disabled. According to the Islamic jurist Al-Ghazali (Algazel, 1058-1111), the government was also expected to store up food supplies in every region in case a disaster or famine occurs. The Caliphate was thus one of the earliest welfare states.[59]
In the North Carolina Law Review journal, Professor John Makdisi of the University of North Carolina School of Law writes in "The Islamic Origins of the Common Law" article:
"[T]he manner in which an act was qualified as morally good or bad in the spiritual domain of Islamic religion was quite different from the manner in which that same act was qualified as legally valid or invalid in the temporal domain of Islamic law. Islamic law was secular, not canonical... Thus, it was a system focused on ensuring that an individual received justice, not that one be a good person."[60]
Count Leon Ostorog, a French jurist, wrote the following on classical Islamic law in 1927:
"Those Eastern thinkers of the ninth century laid down, on the basis of their theology, the principle of the Rights of Man, in those very terms, comprehending the rights of individual liberty, and of inviolability of person and property; described the supreme power in Islam, or Califate, as based on a contract, implying conditions of capacity and performance, and subject to cancellation if the conditions under the contract were not fulfilled; elaborated a Law of War of which the humane, chivalrous prescriptions would have put to the blush certain belligerents in the Great War; expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted."[61]
Democratic participation
In the early Islamic Caliphate, the head of state, the Caliph, had a position based on the notion of a successor to Muhammad's political authority, who, according to Sunnis, were ideally elected by the people or their representatives.[62] After the Rashidun Caliphs, later Caliphates during the Islamic Golden Age had a lesser degree of democratic participation, but since "no one was superior to anyone else except on the basis of piety and virtue" in Islam, and following the example of Muhammad, later Islamic rulers often held public consultations with the people in their affairs.[63][51]
Freedom of speech
During the Islamic Golden Age, there was an early emphasis on freedom of speech in the Islamic Caliphate. This was first declared by the Caliph Umar in the 7th century.[42] Later during the Abbasid period, freedom of speech was also declared by al-Hashimi, a cousin of caliph Al-Ma'mun (786–833), in the following letter to a religious opponent:[64]
"Bring forward all the arguments you wish and say whatever you please and speak your mind freely. Now that you are safe and free to say whatever you please appoint some arbitrator who will impartially judge between us and lean only towards the truth and be free from the empery of passion, and that arbitrator shall be Reason, whereby God makes us responsible for our own rewards and punishments. Herein I have dealt justly with you and have given you full security and am ready to accept whatever decision Reason may give for me or against me. For "There is no compulsion in religion" (Qur'an 2:256) and I have only invited you to accept our faith willingly and of your own accord and have pointed out the hideousness of your present belief. Peace be with you and the blessings of God!"[64]
According to George Makdisi and Hugh Goddard, "the idea of academic freedom" in universities was "modelled on Islamic custom" as practiced in the medieval Madrasah system from the 9th century.[65]
Slavery / Freeing of slaves
The major juristic schools of Islam have traditionally accepted the institution of slavery. However, Islam has prescribed five ways to free slaves, has severely chastised those who enslave free persons and has thus regulated the slave trade. The source of slaves was restricted to war in preference to killing whole tribes en masse, as was the tradition at the time.
Sharia and non-Muslims
Sharia attributes different legal rights to different groups. Sharia distinguishes between men and women, as well as between Muslims, "people of the Book" such as Jews and Christians and other non-Muslims.
Qanun
“After the fall of the Abbasids in 1258,” a practice known to the Turks and Mongols transformed itself into Qanun, which gave power to caliphs, governors, and sultans alike to “make their own regulations for activities not addressed by the sharia.”[16] The Qanun began to unfold as early as Umar I (586-644 CE).[16] Many of the regulations covered by Qanun were based on financial matters or tax systems adapted through the law and regulations of those territories Islam conquered.[16]
Modern Islamic law
During the 19th century, the history of Islamic law took a sharp turn due to new challenges the Muslim world faced: the West had risen to a global power and colonized a large part of the world, including Muslim territories. In the Western world, societies changed from the agricultural to the industrial stage, new social and political ideas emerged, and social models slowly shifted from hierarchical towards egalitarian. The Ottoman Empire and the rest of the Muslim world were in decline, and calls for reform became louder. In Muslim countries, codified state law started replacing the role of scholarly legal opinion. Western countries sometimes inspired, sometimes pressured, and sometimes forced Muslim states to change their laws. Secularist movements pushed for laws deviating from the opinions of the Islamic legal scholars. Islamic legal scholarship remained the sole authority for guidance in matters of rituals, worship, and spirituality, while they lost authority to the state in other areas. The Muslim community became divided into groups reacting differently to the change. This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).
- Secularists believe that the law of the state should be based on secular principles, not on Islamic legal theory.
- Traditionalists believe that the law of the state should be based on the traditional legal schools. However, traditional legal views are considered unacceptable by some modern Muslims, especially in areas like women's rights or slavery.[66]
- Reformers believe that new Islamic legal theories can produce modernized Islamic law[67] and lead to acceptable opinions in areas such as women's rights.[68]
Contemporary practice
There is tremendous variety in the interpretation and implementation of Islamic Law in Muslim societies today. Liberal movements within Islam have questioned the relevance and applicability of sharia from a variety of perspectives; Islamic feminism brings multiple points of view to the discussion. Several of the countries with the largest Muslim populations, including Indonesia, Bangladesh and Pakistan, have largely secular constitutions and laws, with only a few Islamic provisions in family law. Turkey has a constitution that is officially strongly secular. India and the Philippines are the only countries in the world which have separate Muslim civil laws, framed by the Muslim Personal Law board in India, and wholly based on Sharia and the Code of Muslim Personal Laws in the Philippines. However, the criminal laws are uniform. Some controversial sharia laws favour Muslim men, including polygamy and rejection of alimony.
Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and religious police assert social compliance. Laws derived from sharia are also applied in Afghanistan, Libya and Sudan. Some states in northern Nigeria have reintroduced Sharia courts.[69] In practice the new Sharia courts in Nigeria have most often meant the re-introduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery and apostasy.[citation needed]
Many, including the European Court of Human Rights, consider the punishments prescribed by Sharia as being barbaric and cruel. Islamic scholars argue that, if implemented properly, the punishments serve as a deterrent to crime.[70] In international media, practices by countries applying Islamic law have fallen under considerable criticism at times. This is particularly the case when the sentence carried out is seen to greatly tilt away from established standards of international human rights. This is true for the application of the death penalty for the crimes of adultery and homosexuality, amputations for the crime of theft, and flogging for fornication or public intoxication. [2]
A bill proposed by lawmakers in the Indonesian province of Aceh would impose Sharia law on 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".[71][72][73]
The interpretation of Islamic jurisprudence varies in different modern nations. In the Anglosphere and in Islamic countries with a history of British rule, for example, Islamic finance has been relatively successful due to the common-law nature of Islamic jurisprudence being compatible with English common law. On the other hand, Islamic finance has been relatively unsuccessful in certain regimes such as Iran, Pakistan and Sudan which have diverged from the common-law nature of Islamic jurisprudence and instead interpret "a common-law variant as if it were a civil law system."[10] For example, modern Iranian law is based on an "Islamic civil code" influenced by the Napoleonic code and German civil code.[74] According to the Archbishop of Canterbury Rowan Williams, "In some of the ways it has been codified and practised across the world, it has been appalling and applied to women in places like Saudi Arabia, it is grim."[75]
A prominent Islamic jurist explains the common-law nature of Islamic jurisprudence:
"It must be understood that when we claim that Islam has a satisfactory solution for every problem in any situation in all times to come, we do not mean that the Holy Quran and Sunna of the Holy Prophet or the rulings of Islamic scholars provide a specific answer to each and every minute detail of our socioeconomic life. What we mean is that the Holy Quran and the Holy Sunna of the Prophet have laid down the broad principles in the light of which the scholars of every time have deduced specific answers to the new situations arising in their age. Therefore, in order to reach a definite answer about a new situation the scholars of Shariah have to play a very important role. They have to analyze every question in light of the principles laid down by the Holy Quran and Sunna as well as in the light of the standards set by earlier jurists enumerated in the books of Islamic jurisprudence. This exercise is called Istinbat or Ijtihad. ... [T]he ongoing process of Istinbat keeps injecting new ideas, concepts and rulings into the heritage of Islamic jurisprudence."[76]
Another significant difference between the classical and modern systems of Islamic law is that classical Islamic law was "independent of any state mechanism", while modern Islamic law is "controlled by the state because the state often controls the legal scholars." According to Sameer S. Vohra, "This control mechanism results in a lack of the sort of pluralism that once made the Islamic legal system as innovative and fluid as its United States counterpart."[29]
Contemporary issues
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Democracy and human rights
- Further information: Islamic ethics, Islamic democracy, Shura, and Ijma
Some democrats and several official institutions in democratic countries (as the European Court for Human Rights) argue that Sharia is incompatible with a democratic state. These incompatibilities have been clarified in several legal disput