Monday, March 28, 2011

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).

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