Monday, March 28, 2011

Sharia the law system inspired by the Quraan and the Sunna

Arabic: 'ash-sharī¢a
Turkish: Şeriat

The law system inspired by the Koran, the Sunna, older Arabic law systems, parallel traditions, and work of Muslim scholars over the two first centuries of Islam.
Origins and definitions
Sharia is often referred to as Islamic law, but this is wrong, as only a small part is irrefutably based upon the core Islamic text, the Koran. Correct designations would be "Muslim Law", "Islam-inspired", "Islam-derived," or even "the law system of Muslims."
This is well known to most Muslims, yet Sharia is always referred to as "based upon the Koran", hence it is the "will of God."One sees traces of many non-Muslim juridical systems in the Sharia, such as Old Arab Bedouin law, commercial law from Mecca, agrarian law from Madina, law from the conquered countries, Roman law and Jewish law.Also, calling the Sharia 'law' can be misleading, as Sharia extends beyond law. Sharia is the totality of religious, political, social, domestic and private life. Sharia is primarily meant for all Muslims, but applies to a certain extent also for people living inside a Muslim society. Muslims are not totally bound by the Sharia when they live or travel outside the Muslim world.Dogmatically, Sharia is not something the intelligence of man can prove wrong, it is only to be accepted by humans, since it is based on the will of God. This is clear from what we read in the Koran:
Koran sura 45: The Kneeling
17 ...then we gave you a Sharia in religion, follow it, and do not follow the lust of those who do not know...
The regulations of the Sharia can be divided into two groups:
1.      regulations on worship and ritual duties
2.      regulations of juridical and political nature
Use in modern times
But despite this, many parts of the Sharia have no or little importance in most Muslim societies, except in those that have gone through a phase of Islamization (Sudan, Iran, Saudi Arabia, and to some extent Libya). But the Sharia has much importance in domestic judicial fields like family, marriage and inheritance.
The modernist movement in Islam has opposed the traditional view of Sharia stating that the law cannot be changed by man, insisting that it should be applied to the actual situation and new ideas, meaning that new interpretations are allowed.
In Sunni Islam, there are four schools, madhhab, which all coexist in peace. No war has ever been fought over the issue of different schools, and students of religious subjects in most Muslim countries have to learn about all four schools. It is in many cases permissible to use a law from another school, if one feels that it is more appropriate. All schools have a lot in common, but there are many cases where the same act is regarded very differently. For the very same issue the schools can stretch from classifying things to be everything between forbidden and meritorious.
Fiqh is the science of Sharia, and is sometimes used as synonymous with it. Fiqh is collected in a number of books which are studied by students and used by the ulama. These books are studied and interpreted according to rules found in school, madhhab, the student or learned man belongs to. But most people belonging to the ulama cannot interpret freely the fiqh- books, this is a right reserved for the mufti, who can issue fatwas, 'legal opinions'.

Sharia law: A brief introduction

Sharia law: A brief introduction
Sharia Law - source and definitions:
The term "Sharia" (a.k.a. Shari'a) literally means "the path to a watering hole." The Guardian newspaper in the UK describes Sharia as: "... a religious code for living, in the same way that the Bible offers a moral system for Christians." 1 It is used to refer both to the Islamic system of law and the totality of the Islamic way of life. Sharia is derived both from:
            The teachings of the Qur'an. This is the Muslim holy book, which corresponds to the Jews' Torah and the Christians' Holy Bible. Muslims believe that the Qur'an is the Word of God, as dictated to the prophet Muhammad by the angel Gabriel.
            From Sunna, which is referred to as Islamic "Custom or practice; particularly that associated with the exemplary life of the Prophet Muhammad, comprising his deeds and utterances as recorded in the hadith." The hadith literally means "report" or "narrative" 2

Sharia law: founders and schools:
Perhaps the two greatest original founders of Sharia law were Malik ibn Anas and Ibn al-Shaf'i. Anas established the Maliki school of jurisprudence. Al-Shaf'i was one of Anas' students; he disagreed with his teacher about the reliability of the hadith. He felt that it was necessary to trace each hadith from the time of Muhammad through its chain of devout Muslims. This concern led to Islamic scholars considering "... which hadith were true and which were not." Needless to say this led to conflicts among scholars as to the proper application of Sharia law.
Ibn al-Shafi'i promoted the use of additional sources for Shari'a law:
            The technique of "... reasoning by analogy in order to develop new laws from existing laws." As the culture evolves, new types of problems emerge that need to be dealt with. Pre-implantation Genetic Diagnosis (PGD) used to prevent the development of a severely defective human embryo is one example.
            The technique of accepting the consensus of a Muslim community. The reasoning is that Allah would not allow an entire community to be in error on a basic Islamic principle.
There are four main schools of Sharia law:
            Hanbali: This is the most conservative school of Shari'a. It is used in Saudi Arabia and some states in Northern Nigeria.
            Hanifi: This is the most liberal school, and is relatively open to modern ideas.
            Maliki: This is based on the practices of the people of Medina during Muhammad's lifetime.
            Shafi'i: This is a conservative school that emphasizes on the opinions of the companions of the Prophet Muhammad.
What applies within one school of Sharia law does not necessarily apply in the other schools. For example, the Maliki Law School accepts evidence of pregnancy as proof that an unmarried woman has either committed adultery or been raped. The other schools "... do not recognize evidence of pregnancy as proof of Zina [Adultery]." 3
Recent history:
The Constitutional Rights Foundation notes that:
"In the 19th century, many Muslim countries came under the control or influence of Western colonial powers. As a result, Western-style laws, courts, and punishments began to appear within the Sharia. Some countries like Turkey totally abandoned the Sharia and adopted new law codes based on European systems...Modern legislation along with Muslim legal scholars who are attempting to relate the will of Allah to the 20th century have reopened the door to interpreting the Sharia. This has happened even in highly traditional Saudi Arabia, where Islam began....Since 1980, some countries with fundamentalist Islamic regimes like Iran have attempted to reverse the trend of westernization and return to the classic Sharia." 4
Within Sharia law, there are a group of "Haram" offenses which carry severe punishments. These include pre-marital sexual intercourse, sex by divorced persons, post-marital sex, adultery, false accusation of unlawful intercourse, drinking alcohol, theft, and highway robbery. Haram sexual offenses can carry a sentence of stoning to death or severe flogging. An eyewitness account of Soraya M, a woman executed by stoning, can be read on an anti-Iranian web site. Caution: do not read this if you have a weak stomach; it is quite graphic. 5
Sharia law  has been adopted in various forms by many countries, ranging from a strict interpretation in Saudi Arabia and northern states of Nigeria, to a relatively liberal interpretation in much of Malaysia. 1
Sharia law is intended to be only applicable to Muslims. Christians and other non-Muslims are supposed to be exempt from the provisions of the law; this is a provision that is not universally followed..

Books on Sharia law:
            Muhammad Salim Awa, "Punishment in Islamic Law : A Comparative Study," American Trust Publications, (1982).
            M. Cherif Bassiouni, Ed., "The Islamic Criminal Justice System," Oceana, (1982).
            Wael B. Hallaq, "Law and Legal Theory in Classical and Medieval Islam," Variorum, (1995).
            Majid Khadduri, Ed., "Law in the Middle East,", Middle East Institute, (1955).

Governing Under Sharia

Islam: Governing Under Sharia
(aka shariah, shari'a)

Toni Johnson, Senior Staff Writer
Lauren Vriens

Updated: November 10, 2010

Sharia, or Islamic law, influences the legal code in most Muslim countries. A movement to allow sharia to govern personal status law, a set of regulations that pertain to marriage, divorce, inheritance, and custody, is even expanding into the West. "There are so many varying interpretations of what sharia actually means that in some places it can be incorporated into political systems relatively easily," says Steven A. Cook, CFR senior fellow for Middle Eastern studies. Sharia's influence on both personal status law and criminal law is highly controversial, though. Some interpretations are used to justify cruel punishments such as amputation and stoning as well as unequal treatment of women in inheritance, dress, and independence. The debate is growing as to whether sharia can coexist with secularism, democracy, or even modernity.
What is Sharia?
Also meaning "path" in Arabic, sharia guides all aspects of Muslim life including daily routines, familial and religious obligations, and financial dealings. It is derived primarily from the Quran and the Sunna--the sayings, practices, and teachings of the Prophet Mohammed. Precedents and analogy applied by Muslim scholars are used to address new issues. The consensus of the Muslim community also plays a role in defining this theological manual.
Sharia developed several hundred years after the Prophet Mohammed's death in 632 CE as the Islamic empire expanded to the edge of North Africa in the West and to China in the East. Since the Prophet Mohammed was considered the most pious of all believers, his life and ways became a model for all other Muslims and were collected by scholars into what is known as the hadith. As each locality tried to reconcile local customs and Islam, hadith literature grew and developed into distinct schools of Islamic thought: the Sunni schools, Hanbali, Maliki, Shafi'i, Hanafi; and the Shiite school, Ja'fari. Named after the scholars that inspired them, they differ in the weight each applies to the sources from which sharia is derived, the Quran, hadith, Islamic scholars, and consensus of the community. The Hanbali school, known for following the most Orthodox form of Islam, is embraced in Saudi Arabia and by the Taliban. The Hanafi school, known for being the most liberal and the most focused on reason and analogy, is dominant among Sunnis in Central Asia, Egypt, Pakistan, India, China, Turkey, the Balkans, and the Caucasus. The Maliki school is dominant in North Africa and the Shafi'i school in Indonesia, Malaysia, Brunei Darussalam, and Yemen. Shia Muslims follow the Ja'fari school, most notably in Shia-dominant Iran. The distinctions have more impact on the legal systems in each country, however, than on individual Muslims, as many do not adhere to one school in their personal lives.
Controversy: Punishment and Equality under Sharia
Marriage and divorce are the most significant aspects of sharia, but criminal law is the most controversial. In sharia, there are categories of offenses: those that are prescribed a specific punishment in the Quran, known as hadd punishments, those that fall under a judge's discretion, and those resolved through a tit-for-tat measure (ie., blood money paid to the family of a murder victim). There are five hadd crimes: unlawful sexual intercourse (sex outside of marriage and adultery), false accusation of unlawful sexual intercourse, wine drinking (sometimes extended to include all alcohol drinking), theft, and highway robbery. Punishments for hadd offenses--flogging, stoning, amputation, exile, or execution--get a significant amount of media attention when they occur. These sentences are not often prescribed, however. "In reality, most Muslim countries do not use traditional classical Islamic punishments," says Ali Mazrui of the Institute of Global Cultural Studies in a Voice of America interview. These punishments remain on the books in some countries but lesser penalties are often considered sufficient.
Despite official reluctance to use hadd punishments, vigilante justice still takes place. Honor killings, murders committed in retaliation for bringing dishonor on one's family, are a worldwide problem. While precise statistics are scarce, the UN estimates thousands of women are killed annually in the name of family honor (National Geographic). Other practices that are woven into the sharia debate, such as female genital mutilation, adolescent marriages, polygamy, and gender-biased inheritance rules, elicit as much controversy. There is significant debate over what the Quran sanctions and what practices were pulled from local customs and predate Islam. Those that seek to eliminate or at least modify these controversial practices cite the religious tenet of tajdid. The concept is one of renewal, where Islamic society must be reformed constantly to keep it in its purest form. "With the passage of time and changing circumstances since traditional classical jurisprudence was founded, people's problems have changed and conversely, there must be new thought to address these changes and events," says Dr. Abdul Fatah Idris, head of the comparative jurisprudence department at Al-Azhar University in Cairo. Though many scholars share this line of thought, there are those who consider the purest form of Islam to be the one practiced in the seventh century.
Sharia vs. Secularism
In a 2007 University of Maryland poll (PDF), more than 60 percent of the populations in Egypt, Morocco, Pakistan, and Indonesia responded that democracy was a good way to govern their respective countries, while at the same time, an average of 71 percent agreed with requiring "strict application of [sharia] law in every Islamic country." Whether democracy and Islam can coexist is a topic of heated debate. Some Islamists argue democracy is a purely Western concept imposed on Muslim countries. Others feel Islam necessitates a democratic system and that democracy has a basis in the Quran since "mutual consultation" among the people is commended (42:38 Quran). John L. Esposito and John O. Voll explain the debate in a 2001 article in the journal Humanities.
Noah Feldman, a former CFR adjunct senior fellow, writes in a 2008 New York Times Magazine article that the full incorporation of Islamic law is viewed as creating "a path to just and legitimate government in much of the Muslim world." It places duplicitous rulers alongside their constituents under the rule of God. "For many Muslims today, living in corrupt autocracies, the call for [sharia] is not a call for sexism, obscurantism or savage punishment but for an Islamic version of what the West considers its most prized principle of political justice: the rule of law," Feldman argues.
On the other hand, some Muslim scholars say that secular government is the best way to observe sharia. "Enforcing a [sharia] through coercive power of the state negates its religious nature, because Muslims would be observing the law of the state and not freely performing their religious obligation as Muslims," says Abdullahi Ahmed An-Na'im, a professor of law at Emory University and author of a book on the future of sharia. Opinions on the best balance of Islamic law and secular law vary, but sharia has been incorporated into political systems in three general ways:
  • Dual Legal System. Many majority Muslim countries have a dual system in which the government is secular but Muslims can choose to bring familial and financial disputes to sharia courts. The exact jurisdiction of these courts varies from country to country, but usually includes marriage, divorce, inheritance, and guardianship. Examples can be seen in Nigeria and Kenya, which have sharia courts that rule on family law for Muslims. A variation exists in Tanzania, where civil courts apply sharia or secular law according to the religious backgrounds of the defendants. Several countries, including Lebanon and Indonesia, have mixed jurisdiction courts based on residual colonial legal systems and supplemented with sharia. Western countries are also exploring the idea of allowing Muslims to apply Islamic law in familial and financial disputes. In late 2008, Britain officially allowed sharia tribunals (NYT) governing marriage, divorce, and inheritance to make legally binding decisions if both parties agreed. The new system is in line with separate mediation allowed for Anglican and Jewish communities in England. Criminal law remains under the gavel of the existing legal system. "There is no reason why principles of sharia law, or any other religious code, should not be the basis for mediation," Britain's top judge, Lord Nicholas Phillips, said in a July 2008 speech (PDF). Supporters of this initiative, such as the archbishop of Canterbury, Rowan Williams, argue that it would help maintain social cohesion (BBC) in European societies increasingly divided by religion. However, some research suggests the process to be discriminatory toward women (BBC). Other analysts suggest the system has led to grey areas. Britain's Muslims come from all over the world, Ishtiaq Ahmed, a spokesperson for the Council for Mosques in England, told the BBC, noting that this makes it hard to discern at times "where the rulings of the sharia finish and long-held cultural practices start." Sharia has recently become a topic of political concern in the United States. The state of Oklahoma passed a ballot measure in November 2010 to ban the use of sharia law in court cases, which supporters are calling "a preemptive strike against Islamic law" (ABCNews). Several opponents of new mosques being built around the United States, including one near Ground Zero, have cited fear of the spread of sharia as a reason for opposition. And about a third of Americans in an August 2010 Newsweek poll suspect U.S. President Barack Obama sympathizes with Islamist goals (PDF) to impose sharia.
  • Government under God. In those Muslim countries where Islam is the official religion listed in the constitution, sharia is declared to be a source, or the source, of the laws. Examples include Saudi Arabia, Kuwait, Bahrain, Yemen, and the United Arab Emirates, where the governments derive their legitimacy from Islam. In Pakistan, Egypt, Iran, and Iraq, among others, it is also forbidden to enact legislation that is antithetical to Islam. Saudi Arabia employs one of the strictest interpretations of sharia. Women are not allowed to drive, are under the guardianship of male relatives at all times, and must be completely covered in public. Elsewhere, governments are much more lenient, as in the United Arab Emirates, where alcohol is tolerated. Non-Muslims are not expected to obey sharia and in most countries, they are the jurisdiction of special committees and adjunct courts under the control of the government.
  • Completely Secular. Muslim countries where the government is declared to be secular in the constitution include Azerbaijan, Tajikistan, Chad, Somalia, and Senegal. Islamist parties run for office occasionally in these countries and sharia often influences local customs. Popular Islamist groups are often viewed as a threat by existing governments. As in Azerbaijan in the 1990s, secularism is sometimes upheld by severe government crackdowns on Islamist groups and political parties. Similar clashes have occurred in Turkey. Under the suspicion that the majority party, the Islamist Justice and Development Party, was trying to establish sharia, Turkey's chief prosecutor petitioned the constitutional court (Economist) in March 2008 to bar the party from politics altogether. One of the politicians indicted, Prime Minister Recep Tayyip Erdogan, told Newsweek, "Turkey has achieved what people said could never be achieved--a balance between Islam, democracy, secularism and modernity." Secular Muslim countries are a minority, however, and the popularity of Islamist political parties are narrowing the gap between religion and state.
Modern Economies and Sharia
Growing at an estimated 15 percent annually, Islamic banking and finance is a worldwide industry that modifies modern business practices to conform to the rules of sharia. Central to this field is riba, the charging or payment of interest, banned under Islamic law. Clever twists on standard financial products like credit cards, savings accounts, mortgages, loans, and even trust funds bypass the interest business model. A 2008 report by the General Council for Islamic Banks and Financial Institutions estimates the Islamic banking industry to stand at $442 billion. Even big name banks such as Citigroup, HSBC, and Deutsche Bank are developing Islamic banking sectors to cater to the demand. The industry is small in comparison to the global market, but may grow as some non-Muslims are turning to sharia-compliant services. Some of the ethically minded are also switching over to sharia-compliant investments. Businesses are required to avoid transactions related to forbidden things, such as weapons, alcohol, tobacco, gambling, pornography and pork, and investors are guaranteed that their money won't end up financing those industries. Governments are also looking to get a piece of the pie: Malaysia is the largest issuer of sharia-compliant bonds and Indonesia launched its own in January 2009.

Fear of sharia in Tennessee

Fear of sharia in Tennessee
Senator Bill Ketron's bill goes further than other irrational US reactions to Islam by attempting to outlaw sharia entirely
The United Kingdom has officially sanctioned the use of Islamic tribunals to settle some disputes, and in Germany, Islamic legal scholars such as Mathias Rohe have noted the compatibility of Islamic law to German law. The application of Islamic Law in Europe may remain controversial, but in the court of American public opinion, the idea of the Islamic legal system having any application in the US provokes massive social angst and sleazy political opportunism.
The southern state of Tennessee is the latest example of an irrational fear of Islam, which threatens American values and Muslim civil liberties. Bill Ketron Jr, a Republican State Senator in Tennessee who was first elected in 2002, introduced Senate bill 1028 to outlaw sharia. The fiery language of the bill is not unfamiliar in the American public square: In the lead-up to the 2010 elections we saw Newt Gingrich and other candidates for election, Islamophobic commentators and websites warn of the threat of sharia.
Senate bill 1028 goes further than other states have gone, attempting to outlaw sharia entirely. It provides the Tennessee state attorney general with the authority to designate "sharia organisations", defined as "two or more persons conspiring to support, or acting in concert in support of, sharia or in furtherance of the imposition of sharia within any state or territory of the United States." According to the bill, anyone who provides material support or resources to a designated sharia organisation could be charged with a felony and face up to 15 years of jail.
The bill simplistically equates sharia with terrorism without any proof and declares that it is "treasonous" and incompatible with the US constitution. It incorrectly identifies sharia as a political doctrine that "requires all its adherents to actively support the establishment of a political society based upon sharia as foundational or supreme law and the replacement of any political entity not governed by sharia with a sharia political order." The bill goes on to state: "Sharia requires all its adherents to actively and passively support the replacement of American constitutional republic, including the representative government of this state with a political system based upon sharia."
The very start of the language of the bill is profoundly disturbing. Sharia is falsely equated with Islamic law. Sharia refers to God's will, laws, principles and values, found in the Qur'an and the traditions of the prophet Muhammad. Islamic law is the product of early jurists who interpreted and developed during it in the early Islamic centuries.
The hysteria continues with unsubstantiated accusations: "The knowing adherence to sharia and to foreign sharia authorities is prima facie evidence of an act in support of the overthrow of the United States government and the government of this state through the abrogation, destruction, or violation of the United States and Tennessee Constitutions by the likely use of imminent criminal violence and terrorism with the aim of imposing sharia on the people of this state."
The bill states that its goal is not to outlaw freedom of religion or the practice of Islam. However, though breathtakingly devoid of evidence of any call to impose sharia in Tennessee or anywhere else in the US, it uncritically condemns sharia and asserts that it represents a major threat to Tennessee, brush-stroking the vast majority of mainstream Muslims and Islam in America.
For its understanding of the nature and role of Islamic law, it relies on the rhetoric of terrorists such as Osama Bin Laden and the harsh application and punishments meted out in some parts of the world.
The bill is a cheap and transparent attempt by Ketron to pander to the misplaced fears of some citizens. In his district, there has been a heated debate over the building of a new mosque in Murfreesboro.
The fear that Islamic law could supplant American law is simply misplaced. While devout Jews can follow Jewish law and Christians follow their doctrines and laws and be at the same time fully American citizens, can Muslims? Of course. Like followers of other faiths, Muslims can and do fulfil the personal religious obligations of their faith without supplanting the laws of their country. The United Kingdom offers a good example: the rulings of a network of sharia courts are enforceable, when both parties to a dispute have agreed to abide by them, and where they do not conflict with English law, with the full power of the judicial system, through the county courts or high court.
Not only do anti-sharia in America fearmongers show an appalling ignorance of the meaning and nature of sharia as a moral compass but they also do not provide offer any evidence that their concerns have a solid foundation in reality. Moreover, their concerns fly in the face of hard evidence to the contrary. In America, Muslims, like members of other faiths, can draw on their religious law to govern internal matters and as a guide in family and social behaviour as long as they do not violate civil law.
Mr Ketron, are you listening?