“Islamic law” redirects here. For Islamic jurisprudence, see
Fiqh.
Sharia applies in full, covering personal status issues as well as criminal proceedings
Sharia applies in personal status issues (such as marriage, divorce, inheritance, and child custody)
Regional variations in the application of Sharia
Members of the Organisation of Islamic Cooperation where Sharia plays no role in the judicial system
Sharia or sharia law (Arabic: شريعة (IPA: [ʃaˈriːʕa]), is the Islamic legal system[1] derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term sharia comes from the Arabic language term sharīʿah, which means a body of moral and religious law derived from religious prophecy, as opposed to human legislation.[2][3][4]
Sharia deals with many topics, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, everyday etiquette and fasting. Adherence to sharia has served as one of the distinguishing characteristics of the Muslim faith historically.[5] In its strictest and most historically coherent definition, sharia is considered in Islam as the infallible law of God.[6]
There are two primary sources of sharia: the Quran, and the Hadiths (opinions and life example of Muhammad).[7] For topics and issues not directly addressed in these primary sources, sharia is derived. The derivation differs between the various sects of Islam (Sunni and Shia), and various jurisprudence schools such as Hanafi, Maliki, Shafi’i, Hanbali andJafari.[8][9] The sharia in these schools is derived hierarchically using one or more of the following guidelines: Ijma(usually the consensus of Muhammad’s companions), Qiyas (analogy derived from the primary sources), Istihsan(ruling that serves the interest of Islam in the discretion of Islamic jurists) and Urf (customs).[8][10]
Sharia is a significant source of legislation in various Muslim countries. Some apply all or a majority of the sharia code, and these include Saudi Arabia, Sudan, Iran, Afghanistan, Pakistan, Brunei, United Arab Emirates, Qatar, Yemen andMauritania. In these countries, sharia prescribed punishments such as beheading, flogging and stoning continue to be practiced judicially or extra-judicially.[11][12] The introduction of sharia is a longstanding goal for Islamist movements globally, including in Western countries, but attempts to impose sharia have been accompanied by controversy,[13]violence,[14] and even warfare.[15] Most countries do not recognize sharia; however, some countries in Asia, Africa and Europe recognize parts of sharia and accept it as the law on divorce, inheritance and other personal affairs of their Islamic population.[16] In Britain, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, and this limited adoption of sharia is controversial.[17]
The concept of crime, judicial process, justice and punishment embodied in sharia is different from that of secular law.[18] The differences between sharia and secular laws have led to an ongoing controversy as to whether sharia is compatible with secular forms of government, human rights, freedom of thought, and women’s rights.[19][20][21]
Etymology and origins[edit]
Scholars describe the word sharia (/ʃɑːˈriːɑː/, also shari’a, šarīʿah) as an archaic Arabic word denoting “pathway to be followed” (analogous to the Hebrew termHalakhah [“The Way to Go”]),[22] or “path to the water hole”. The latter definition comes from the fact that the path to water is the whole way of life in an arid desert environment.[23]
The etymology of sharia as a “path” or “way” comes from the Quranic verse[Quran 45:18]: “Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not.”[22] Malik Ghulam Farid in his Dictionary of the Holy Quran, believes the “Way” in 45:18 (quoted above) derives from shara’a (as prf. 3rd. p.m. sing.), meaning “He ordained”. Other forms also appear: shara’u[Quran 45:13] as (prf. 3rd. p.m. plu.), “they decreed (a law)”[Quran 42:21]; and shir’atun (n.) meaning “spiritual law”[Quran 5:48].[24]
The Arabic word sharīʿa has origins in the concept of ‘religious law’; the word is commonly used by Arabic-speaking peoples of the Middle East and designates a prophetic religion in its totality. Thus, sharīʿat Mūsā means religious law of Moses (Judaism), sharīʿat al-Masīḥ means religious law of Christianity, sharīʿat al-Madjūs means religious law of Zoroastrianism.[3]
The Arabic expression شريعة الله (God’s Law) is a common translation for תורת אלוהים (‘God’s Law’ in Hebrew) and νόμος τοῦ θεοῦ (‘God’s Law’ in Greek in the New Testament [Rom. 7: 22]).[25] In contemporary Islamic literature, sharia refers to divine law of Islam as revealed by prophet Muhammad, as well as in his function as model and exemplar of the law.[3]
Sharia in the Islamic world is also known as Qānūn-e Islāmī (قانون اسلامی).[citation needed]
History
In Islam, the origin of sharia is the Qu’ran, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca).[26]
Sharia underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) for Sunni Muslims, and Imam Ali for Shia Muslims, during which time many questions were brought to the attention of Muhammad’s closest comrades for consultation.[27] During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.[27] Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.
The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[28] Progress in theory was started by 8th and 9th century Islamic scholars Abu Hanifa, Malik bin Anas, Al-Shafi’i, Ahmad ibn Hanbal and others.[8][29] Al-Shafi‘i is credited with deriving the theory of valid norms for sharia (uṣūl al-fiqh), arguing for a traditionalist, literal interpretation of Quran, Hadiths and methodology for law as revealed therein, to formulate sharia.[30][31]
A number of 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. These shaped different versions of sharia in different schools of Islamic jurisprudence, called fiqhs.[32][33][34]
The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions.[35] Under the Umayyads Islamic scholars were “sidelined” from administration of justice and attempts to systematically uphold and develope Islamic law would wait for Abbasid rule.[36] The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence.[37] The Abbasid made the institution of qadi independent from the government, but this separation wasn’t always respected.[38]
Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Quran or the sunnah. Imam Shafi’i declared: “atradition from the Prophet must be accepted as soon as it become known…If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favor of the tradition from the Prophet.” Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behavior for Muslims.[39]
In modern times, the Muslim community have divided points of view: secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines; traditionalists believe that the law of the state should be based on the traditional legal schools;[40] reformers believe that new Islamic legal theories can produce modernized Islamic law[41] and lead to acceptable opinions in areas such as women’s rights.[42] This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).
There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.[43][44]
Definitions and disagreements
Sharia, in its strictest definition, is a divine law, as expressed in the Quran and Muhammad’s example (often called the sunnah). As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the law.[45][46] Many scholars have pointed out that the sharia is not formally a code,[47] nor a well-defined set of rules.[48] The sharia is characterized as a discussion on the duties of Muslims[47] based on both the opinion of the Muslim community and extensive literature.[49] Hunt Janin and Andre Kahlmeyer thus conclude that the sharia is “long, diverse, and complicated.”[48]
From the 9th century onward, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.[50] 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.[51] 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.[52][53] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires as before.[54] 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.[55][56]
According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, “Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite.” Otto’s analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.[57]
Sources of sharia law
There are two sources of sharia (understood as the divine law): the Quran and the Sunnah. The Quran is viewed as the unalterable word of God. It is considered in Islam to be an infallible part of sharia. The Quran covers a host of topics including God, personal laws for Muslim men and Muslim women, laws on community life, laws on expected interaction of Muslims with non-Muslims, apostates and ex-Muslims, laws on finance, morals, eschatology, and others.[58][59] The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah’s importance as a source of sharia, is confirmed by several verses of the Quran (e.g.[Quran 33:21]).[60] The Sunnah is primarily contained in the hadith or reports of Muhammad’s sayings, his actions, his tacit approval of actions and his demeanor. While there is only one Quran, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasa’i, Ibn Majah. The collections by al-Bukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them.[61] For Shias, the Sunnah include life and sayings of The Twelve Imams.[62]
Quran versus Hadith
Muslims who reject the Hadith as a source of law, sometimes referred to as Quranists,[63][64] suggest that only laws derived exclusively from the Quran are valid.[65]They state that the hadiths in modern use are not explicitly mentioned in the Quran as a source of Islamic theology and practice, they were not recorded in written form until more than two centuries after the death of the prophet Muhammed.[63] They also state that the authenticity of the hadiths remains a question.[66][67]
The vast majority of Muslims, however, consider hadiths, which describe the words, conduct and example set by Muhammad during his life, as a source of law and religious authority second only to the Qur’an.[68] Similarly, most Islamic scholars believe both Quran and sahih hadiths to be a valid source of sharia, with Quranic verse 33.21, among others,[69][70] as justification for this belief.[64]
Ye have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the Praise of Allah.
It is not fitting for a Believer, man or woman, when a matter has been decided by Allah and His Messenger to have any option about their decision: if any one disobeys Allah and His Messenger, he is indeed on a clearly wrong Path.
For vast majority of Muslims, sharia has historically been, and continues to be derived from both the Quran and the Hadiths.[64][68][70] The Sahih Hadiths of Sunni Muslims contain isnad, or a chain of guarantors reaching back to a companion of Muhammad who directly observed the words, conduct and example he set – thus providing the theological ground to consider the hadith to be a sound basis for sharia.[64][70] For Sunni Muslims, the musannaf in Sahih Bukhari and Sahih Muslim is most trusted and relied upon as source for Sunni Sharia.[71] Shia Muslims, however, do not consider the chain of transmitters of Sunni hadiths as reliable, given these transmitters belonged to Sunni side in Sunni-Shia civil wars that followed after Muhammad’s death.[72] Shia rely on their own chain of reliable guarantors, trusting compilations such as Kitab al-Kafi and Tahdhib al-Ahkam instead, and later hadiths (usually called akhbār by Shi’i).[73][74] The Shia version of hadiths contain the words, conduct and example set by Muhammad and Imams, which they consider as sinless, infallible and an essential source of sharia for Shi’ite Muslims.[72][75]However, in substance, the Shi’ite hadiths resemble the Sunni hadiths, with one difference – the Shia hadiths additionally include words and actions of its Imams (al-hadith al-walawi), the biological descendants of Muhammad, and these too are considered an important source for sharia by Shi’ites.[73][76]
Disagreements on Quran
Main article:
Naskh (tafsir)
- Authenticity and writing of Quran
Some scholars such as John Wansbrough have challenged the authenticity of the Quran and whether it was written in the time of Muhammad.[77] In contrast, Estelle Whelan has refuted Wansbrough presenting evidence such as the inscriptions on the Dome of the Rock.[78][79] John Burton states that medieval era Islamic texts claiming Quran was compiled after the death of the Prophet were forged to preserve the status-quo.[80] The final version of the Quran, states Burton, was compiled while the Prophet was still alive.[81] Most scholars accept that the Quran as is used for Sharia, was compiled into the final current form during the caliphate of Uthman.[82][83]
- Abrogation and textual inconsistencies
From the founding of Islam, the Muslim community has also debated the authenticity of compiled verses and the consistency within the Quran.[84][85] The inconsistencies in deriving sharia from the Quran, were recognized and formally complicated by verses 2.106 and 16.101 of the Quran, which are known as the “verses of abrogation (Naskh)”,[86]
When We substitute one revelation for another, – and Allah knows best what He reveals (in stages),– they say, “Thou art but a forger”: but most of them understand not.
The principle of abrogation has been historically accepted and applied by Islamic jurists on both the Quran and the Sunnah.[84][86] Sharia is thus determined through a chronological study of the primary sources, where older revelations are considered invalid and overruled by later revelations.[86][87] While an overwhelming majority of historical and modern Islamic scholars have accepted the principle of abrogation for the Quran and the Sunnah, some modern scholars disagree that the principle of abrogation necessarily applies to the Quran.[88]
Islamic jurisprudence (Fiqh)
Fiqh (school of Islamic jurisprudence) represents the process of deducing and applying sharia principles, as well as the collective body of specific laws deduced from sharia using the fiqh methodology.[8] While Quran and Hadith sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh covers all aspects of law, including religious, civil, political, constitutional and procedural law.[89] Fiqh deploys the following to create Islamic laws:[8]
- Injunctions, revealed principles and interpretations of the Quran (Used by all schools and sects of Islam)
- Interpretation of the Sunnah (Muhammad’s practices, opinions and traditions) and principles therein, after establishing the degree of reliability of hadith’s chain of reporters (Used by all schools and sects of Islam)
If the above two sources do not provide guidance for an issue, then different fiqhs deploy the following in a hierarchical way:[8]
- Ijma, collective reasoning and consensus amongst authoritative Muslims of a particular generation, and its interpretation by Islamic scholars. This fiqh principle for sharia is derived from Quranic verse 4:59.[90] Typically, the recorded consensus of Sahabah (Muhammad’s companions) is considered authoritative and most trusted. If this is unavailable, then the recorded individual reasoning (Ijtihad) of Muhammad companions is sought. In Islam’s history, some Muslim scholars have argued that Ijtihad allows individual reasoning of both the earliest generations of Muslims and later generation Muslims, while others have argued that Ijtihad allows individual reasoning of only the earliest generations of Muslims. (Used by all schools of Islam, Jafari fiqh accepts only Ijtihad of Shia Imams)[8][91]
- Qiyas, analogy is deployed if Ijma or historic collective reasoning on the issue is not available. Qiyas represents analogical deduction, the support for using it in fiqh is based on Quranic verse 2:59, and this methodology was started by Abu Hanifa.[92] This principle is considered weak by Hanbali fiqh, and it usually avoids Qiyas for sharia. (Used by all Sunni schools of Islam, but rejected by Shia Jafari)[8][10]
- Istihsan, which is the principle of serving the interest of Islam and public as determined by Islamic jurists. This method is deployed if Ijtihad and Qiyas fail to provide guidance. It was started by Hanafi fiqh as a form of Ijtihad (individual reasoning). Maliki fiqh called it Masalih Al-Mursalah, or departure from strict adherence to the Texts for public welfare. The Hanbali fiqh called it Istislah and rejected it, as did Shafi’i fiqh. (Used by Hanafi, Maliki, but rejected by Shafii, Hanbali and Shia Jafari fiqhs)[8][10][30]
- Istihab and Urf which mean continuity of pre-Islamic customs and customary law. This is considered as the weakest principle, accepted by just two fiqhs, and even in them recognized only when the custom does not violate or contradict any Quran, Hadiths or other fiqh source. (Used by Hanafi, Maliki, but rejected by Shafii, Hanbali and Shia Jafari fiqhs)[8][10]
- Schools of law
Map of the Muslim world with the main schools of Islamic law (madhhab)
A Madhhab is a Muslim school of law that follows a fiqh (school of religious jurisprudence). In the first 150 years of Islam, there were many madhhab. Several of the Sahābah, or contemporary “companions” of Muhammad, are credited with founding their own. In the Sunni sect of Islam, the Islamic jurisprudence schools of Medina (Al-Hijaz, now in Saudi Arabia) created the Maliki madhhab, while those in Kufa (now in Iraq) created the Hanafimadhhab.[93] Abu al-Shafi’i, who started as a student of Maliki school of Islamic law, and later was influenced by Hanafi school of Islamic law, disagreed with some of the discretion these schools gave to jurists, and founded the more conservative Shafi’i madhhab, which spread from jurisprudence schools in Baghdad (Iraq) and Cairo (Egypt).[94] Ahmad ibn Hanbal, a student of al-Shafi’i, went further in his criticism of Maliki and Hanafi fiqhs, criticizing the abuse and corruption of sharia from jurist discretion and consensus of later generation Muslims, and he founded the more strict, traditionalist Hanbali school of Islamic law.[95] Other schools such as the Jaririwere established later, which eventually died out.
Sunni sect of Islam has four major surviving schools of sharia: Hanafi, Maliki, Shafi’i, Hanbali; one minor school is named Ẓāhirī. Shii sect of Islam has three: Ja’fari(major), Zaydi and Ismaili.[96][97][98] There are other minority fiqhs as well, such as the Ibadi school of Khawarij sect, and those of Sufi and Ahmadi sects.[89][99] All Sunni and Shia schools of sharia rely first on the Quran and the sayings/practices of Muhammad in the Sunnah. Their differences lie in the procedure each uses to create Islam-compliant laws when those two sources do not provide guidance on a topic.[100] The Salafi movement creates sharia based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims.[101]
Hanafi-based sharia spread with the patronage and military expansions led by Turkic Sultans and Ottoman Empire in West Asia, Southeast Europe, Central Asia and South Asia.[103] It is currently the largest madhhab of Sunni Muslims.[104] Maliki-based sharia is predominantly found in West Africa, North Africa and parts of Arabia.[104] Shafii-based sharia spread with patronage and military expansions led by maritime Sultans, and is mostly found in coastal regions of East Africa, Arabia, South Asia, Southeast Asia and islands in the Indian ocean.[105] The Hanbali-based sharia prevails in the smallest Sunni madhhab, predominantly found in the Arabian peninsula.[104] The Shia Jafari-based sharia is mostly found in Persian region and parts of West Asia and South Asia.
- Categories of law
Along with interpretation, each fiqh classifies its interpretation of sharia into one of the following five categories: fard (obligatory), mustahabb (recommended),mubah (neutral), makruh (discouraged), and haraam (forbidden). A Muslim is expected to adhere to that tenet of sharia accordingly.[106]
- Actions in the fard category are those mandatory on all Muslims. They include the five daily prayers, fasting, articles of faith, obligatory giving of zakat (charity, tax) to zakat collectors,[107][108] and the hajj pilgrimage to Mecca.[106]
- The mustahabb category includes proper behaviour in matters such as marriage, funeral rites and family life. As such, it covers many of the same areas as civil law in the West. Sharia courts attempt to reconcile parties to disputes in this area using the recommended behaviour as their guide. A person whose behaviour is not mustahabb can be ruled against by the judge.[109]
- Mubah category of behaviour is neither discouraged nor recommended, neither forbidden nor required; it is permissible.[106]
- Makruh behaviour, while it is not sinful of itself, is considered undesirable among Muslims. It may also make a Muslim liable to criminal penalties under certain circumstances.[109]
- Haraam behaviour is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Quran. Certain Muslim dietary and clothing restrictions also fall into this category.[106]
The recommended, neutral and discouraged categories are drawn largely from accounts of the life of Muhammad. To say a behaviour is sunnah is to say it is recommended as an example of the life and sayings of Muhammad. These categories form the basis for proper behaviour in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.[106]
Areas of Islamic law
The areas of Islamic law include:
- Hygiene and purification laws, including the manner of cleansing, either wudhu or ghusl.
- Economic laws, including Zakāt, the annual almsgiving; Waqf, the religious endowment; the prohibition on interest or Riba; as well as inheritance laws.
- Dietary laws including Dhabihah, or ritual slaughter.
- Theological obligations, including the Hajj or pilgrimage, with its rituals such as Tawaf, Sa’yee and the Stoning of the Devil; salat, formal worship; Salat al-Janazah, the funeral prayer; and celebrating Eid al-Adha.
- Marital jurisprudence, including Nikah, the marriage contract; and divorce, known as Khula if initiated by a woman.
- Criminal jurisprudence, including Hudud, fixed punishments; Tazir, discretionary punishment; Qisas or retaliation;Diyya or blood money; and apostasy.
- Military jurisprudence, including Jihad, offensive and defensive; Hudna or truce; and rules regarding prisoners of war.
- Dress code, including hijab.
- Other topics include customs and behaviour, slavery and the status of non-Muslims.
- Other classifications
Shari’ah law has been grouped in different ways, such as:[110][111] Family relations, Crime and punishment, Inheritance and disposal of property, The economic system, External and other relations.
“Reliance of the Traveller“, an English translation of a fourteenth-century CE reference on the Shafi’i school of fiqh written by Ahmad ibn Naqib al-Misri, organizes sharia law into the following topics: Purification, prayer, funeral prayer, taxes, fasting, pilgrimage, trade, inheritance, marriage, divorce and justice.
In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.
Disagreement on the objectives of Islamic law
A number of scholars have advanced “objectives” (مقاصد maqaṣid al-Shariah also “goals” or “purposes”) they believe the Sharia is intended to achieve. Abu Hamid Al-Ghazali argued that they were the preservation of Islamic religion, and in the temporal world the protection of life, progeny, intellect and wealth of Muslims.[112][113]Yazid et al summarize sharia’s objective to be recognize the limitations of reason, and complement the role of reason with revelation.[114] They state that objective of sharia in Islamic finance is to provide rules and regulations from the Quran and Sunnah.[114]
Jan Otto writes that moderate Muslims and puritan Muslims differ in their interpretation of the objectives of sharia.[115] The moderate Muslims consider sharia to be a flexible code of law, where technicalities of its wording cannot subvert sharia’s objectives to “help Muslims in their quest for submission, humility, gratitude before God, and a quest for Godliness”.[115] In contrast, according to Otto, puritan Muslims believe that sharia is a strict, complete and exact set of rules that one must submit to, by strict compliance, because it is only “through meticulous obedience, Muslims will avoid punishment of God in after-life and will enter heaven” which is the ultimate objective, and it does not matter if some sharia “law is harsh or that its application results in social suffering, this perception is considered delusional”.[115]
Application
Application by country
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
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.[116][117] Most use sharia for personal law (marriage, divorce, domestic violence, child support, family law, inheritance and such matters).[118][119] Elements of sharia are present, to varying extents, in the criminal justice system of many Muslim-majority countries.[12]Saudi Arabia, Yemen, Brunei, Qatar, United Arab Emirates, Iraq, Iran, Pakistan, Afghanistan, Sudan andMauritania apply the code predominantly or entirely.[12][120]
Most Muslim-majority countries with sharia-prescribed hudud punishments in their legal code, do not prescribe it routinely and use other punishments instead.[116][121] The harshest sharia penalties such as stoning, beheadingand the death penalty are enforced with varying levels of consistency.[122]
Since 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.[123] Some moderates and liberal scholars within these Muslim countries have argued for limited expansion of sharia.[124]
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.[125][126] 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.”[127][128]
Enforcement
Sharia is enforced in Islamic nations in a number of ways, including mutaween and hisbah.[citation needed]
The mutaween (Arabic: المطوعين، مطوعية muṭawwiʿīn, muṭawwiʿiyyah)[129] are the government-authorized or government-recognized religious police (or clericalpolice) of Saudi Arabia. Elsewhere, enforcement of Islamic values in accordance with sharia is the responsibility of Polisi Perda Syariah Islam in Aceh province ofIndonesia,[130] Committee for the Propagation of Virtue and the Prevention of Vice (Gaza Strip) in parts of Palestine, and Basiji Force in Iran.[131]
Hisbah (Arabic: حسبة ḥisb(ah), or hisba) is a historic Islamic doctrine which means “accountability”.[134] 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.[135][136][137] Some Salafist suggest that enforcement of sharia under the Hisbah doctrine is the sacred duty of all Muslims, not just rulers.[135] The doctrine of Hisbah in Islam has traditionally allowed any Muslim to accuse another Muslim, ex-Muslim or non-Muslim for beliefs or behavior that may harm Islamic society. This principle has been used in countries such as Egypt, Pakistan and others to bring blasphemy charges against apostates.[138]For example, in Egypt, sharia was enforced on the Muslim scholar Nasr Abu Zayd, through the doctrine of Hasbah, when he committed apostasy.[139][140] Similarly, in Nigeria, after twelve northern Muslim-majority states such as Kano adopted sharia-based penal code between 1999 and 2000, hisbah became the allowed method of sharia enforcement, where all Muslim citizens could police compliance of moral order based on sharia.[141] In Aceh province of Indonesia, Islamic vigilante activists have invoked Hasbah doctrine to enforce sharia on fellow Muslims as well as demanding non-Muslims to respect sharia.[142]Hisbah has been used in many Muslim majority countries, from Morocco to Egypt and in West Asia to enforce sharia restrictions on blasphemy and criticism of Islam over internet and social media.[143][144][145]
Legal and court proceedings
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 discoveryprocess, and no cross-examination of witnesses. Unlike common law, judges’ verdicts do not set binding precedents[146][147] under the principle of stare decisis,[148]and unlike civil law, sharia is left to the interpretation in each case and has no formally codified universal statutes.[149]
The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.[150] Witnesses, in a sharia court system, must be faithful, that is Muslim.[151] 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.[152][153] In civil cases, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.[154][155] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of sharia, such as those found in Hanbali madhhab.[151]
- 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.[156][157][158] 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.[159] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and othercircumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.[160][161]
Muslim jurists have debated whether and when coerced confession and coerced witnesses are acceptable. The majority opinion of jurists in the Hanafi madhhab, for example, ruled that torture to get evidence is acceptable and such evidence is valid, but a 17th-century text by Hanafi jurist Muhammad Shaykhzade argued that coerced confession should be invalid; Shaykhzade acknowledged that beating to get confession has been authorized in fatwas by many Islamic jurists.[162]
- Civil cases
Quran recommends written contracts in the case of debt-related transactions, and oral contracts for commercial and other civil contracts.[155][163] 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.[164] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.[165]
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.[165][166]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.[166][167]
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.[168] 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.”[169] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[169] instead oaths are a solemn procedure performed as a final part of the evidence process.
- Sentencing
Sharia courts treat women and men as unequal, with Muslim woman’s life and blood-money compensation sentence (Diyya) as half as that of a Muslim man’s life.[170][171] Sharia also treats Muslims and non-Muslims as unequal in the sentencing process.[172] Human Rights Watch and United States’ Religious Freedom Report note that in sharia courts of Saudi Arabia, “The calculation of accidental death or injury compensation is discriminatory. In the event a court renders a judgment in favor of a plaintiff who is a Jewish or Christian male, the plaintiff is only entitled to receive 50 percent of the compensation a Muslim male would receive; all other non-Muslims [Buddhists, Hindus, Jains, Atheists] are only entitled to receive one-sixteenth of the amount a male Muslim would receive”.[173][174][175]
Saudi Arabia follows Hanbali sharia, whose historic jurisprudence texts considered a Christian or Jew life as half the worth of a Muslim. Jurists of other schools of law in Islam have ruled differently. For example, Shafi’i sharia considers a Christian or Jew life as a third the worth of a Muslim, and Maliki‘s sharia considers it worth half.[172] The legal schools of Hanafi, Maliki and Shafi’i Sunni Islam as well as those of twelver Shia Islam have considered the life of polytheists and atheists as one-fifteenth the value of a Muslim during sentencing.[172]
Support
Anti-democracy, pro-Sharia public demonstration in 2014 in
Maldives.
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 support for making sharia the official law of the land is very high in many Muslim-majority countries: 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%).[176] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less then 50%: Kosovo (20%), Albania (12%), Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Turkey (12%), Azerbaijan (8%).[176]
In Muslim-majority countries and among Muslims who say sharia should be the law of the land, a percentage between 74% (Egypt) and 19% (Kazakhstan) want sharia law to apply to non-Muslims as well.
A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed wanted sharia in British law.[178]
Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia not just within their own borders; their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.[179] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey’s secular government.[179] These movements can be considered neo-Sharism.[180]
Extremism
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.[181][182]
The sharia basis of arguments of those advocating terrorism, however, remain controversial. Some scholars state that Islamic law prohibits the killing of civilian non-combatants; in contrast, others interpret Islamic law differently, concluding that all means are legitimate to reach their aims, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians, in order to universalize Islam.[181] Islam, in these interpretations, “does not make target differences between militaries and civilians but between Muslims and unbelievers. Therefore it is legitimated (sic) to spill civilians’ blood”.[181] Other scholars of Islam, interpret sharia differently, stating, according to Engeland-Nourai, “attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment […]. It’s not courageous to attack innocent children, women and civilians. It is courageous to protect freedom; it is courageous to defend one and not to attack”.[181][183]
Criticism
A protester opposing the Park51project, carries an anti-sharia sign.
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”.[184][185]Other scholars say sharia is not compatible with democracy, particularly where the country’s constitution demands separation of religion and the democratic state.[186][187]
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.[188] 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.[189][190]
On appeal by Refah the European Court of Human Rights determined that “sharia is incompatible with the fundamental principles of democracy”.[191][192][193] 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”.[194]
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.[195] 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.[196][197] 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][199]
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“.[200]
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, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam.”[201]
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).[202] Bassam Tibi states that sharia framework and human rights are incompatible.[203] Abdel al-Hakeem Carney, in contrast, states that sharia is misunderstood from a failure to distinguish sharia from siyasah (politics).[204]
Freedom of speech
Blasphemy in Islam is any form of cursing, questioning or annoying God, Muhammad or anything considered sacred in Islam.[205][206][207] 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.[205][208][209] In some cases, sharia allows non-Muslims to escape death by converting and becoming a devout follower of Islam.[210]
Blasphemy, as interpreted under sharia, is controversial. Muslim nations have petitioned the United Nations to limit “freedom of speech” because “unrestricted and disrespectful opinion against Islam creates hatred”.[211] Other nations, in contrast, consider blasphemy laws as violation of “freedom of speech”,[212] 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.[213][214]
Freedom of thought, conscience and religion
According to the United Nations’ Universal Declaration of Human Rights,[215] 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[19][216][217] 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.[218]
- 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.[218]
- 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.[218]
- 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.[218]
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.[219][220] 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.[221][222][223][224] 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).[225][226] 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 Shari’a verse teaches, “there is no compulsion in religion.”[227] Other scholars claim sharia recognizes only one proper religion, considers apostasy as sin punishable with death, and members of other religions as kafir (infidel);[228] or hold that Shari’a demands that all apostates and kafir must be put to death, enslaved or be ransomed.[229][230][231][232] Yet other scholars suggest that Shari’a has become a product of human interpretation and inevitably leads to disagreements about the “precise contents of the Shari’a.” In the end, then, what is being applied is not sharia, but what a particular group of clerics and government decide is sharia. It is these differing interpretations of Shari’a that explain why many Islamic countries have laws that restrict and criminalize apostasy, proselytism and their citizens’ freedom of conscience and religion.[233][234]
LGBT rights
Main article:
LGBT in IslamHomosexual intercourse is illegal under sharia law, though the prescribed penalties differ from one school of jurisprudence to another. For example, only a few Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,[235] Saudi Arabia,[236] and Somalia.[237] In other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh,[238] same-sex sexual acts are illegal,[239] and LGBT people regularly face violence and discrimination.[240]
Women
Domestic violence
Many scholars[20][241] claim Shari’a law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.[242] Other scholars claim wife beating, for nashizah, is not consistent with modern perspectives of the Quran.[243]
One of the verses of the Quran relating to permissibility of domestic violence is Surah 4:34.[244][245] In deference to Surah 4:34, many nations with Shari’a law have refused to consider or prosecute cases of domestic abuse.[246][247][248][249] Shari’a has been criticized for ignoring women’s rights in domestic abuse cases.[250][251][252][253] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify Shari’a-inspired laws to improve women’s rights in Islamic nations, including women’s rights in domestic abuse cases.[254][255][256][257]
Personal status laws and child marriag
Shari’a is the basis for personal status laws in most Islamic majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report concludes that Shari’a law provisions are discriminatory against women from a human rights perspective. In legal proceedings under Shari’a law, a woman’s testimony is worth half of a man’s before a court.[154]
Except for Iran, Lebanon and Bahrain which allow child marriages, the civil code in Islamic majority countries do not allow child marriage of girls. However, with Shari’a personal status laws, Shari’a courts in all these nations have the power to override the civil code. The religious courts permit girls less than 18 years old to marry. As of 2011, child marriages are common in a few Middle Eastern countries, accounting for 1 in 6 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.[258][259]
Rape is considered a crime in all countries, but Shari’a courts in Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia in some cases allow a rapist to escape punishment by marrying his victim, while in other cases the victim who complains is often prosecuted with the crime of Zina (adultery).[154][260][261]
Women’s right to property and consent
Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran.[262] A woman’s inheritance is unequal and less than a man’s, and dependent on many factors.[Quran 4:12][263] For instance, a daughter’s inheritance is usually half that of her brother’s.[Quran 4:11][263]
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, that Western legal systems did not grant to women.[264][265] 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.[266][267] 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.[266][268] Under Islamic law, Muslim men could have sexual relations with female captives and slaves without her consent.[269][270]
Slave women under sharia did not have a right to own property, right to free movement or right to consent.[271][272] Sharia, in Islam’s history, provided religious foundation for enslaving non-Muslim women (and men), as well as encouraged slave’s manumission. However, manumission required that the non-Muslim slave first convert to Islam.[273][274] Non-Muslim slave women who bore children to their Muslim masters became legally free upon her master’s death, and her children were presumed to be Muslims as their father, in Africa,[273] and elsewhere.[275]
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 Quran, hadiths and their faithful interpretation as sharia by Islamic jurists.[270][276]
Parallels with Western legal systems
Elements of Islamic law have influenced western legal systems. As example, the influence of Islamic influence on the development of an international law of the sea” can be discerned alongside that of the Roman influence.[277]
Makdisi states Islamic law also influenced the legal scholastic system of the West.[278] The study of legal text and degrees have parallels between Islamic studies of sharia and the Western system of legal studies. For example, the status of faqih (meaning “master of law“), mufti (meaning “professor of legal opinions“) andmudarris (meaning “teacher”), which were later translated into Latin as magister, professor and doctor respectively.[278]
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.[279] Interest prohibitions also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.[280] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.[281]
See also
Pronk Palisades 
Should President Obama and Former Secretary of State Hillary Clinton Apologize For A Failed Foreign Policy Leading To Genocide and Democide in Iraq, Syria, and Libya? — Yes, but They Never Take Responsibility For Their Failures But Blame It On Others — No Wonder Carson and American People Oppose A Muslim President — ‘How Do You Spell Genocide? O-B-A-M-A’ — Videos
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The Pronk Pops Show Podcasts
Pronk Pops Show 537: September 21, 2015
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Story 1: Should President Obama and Former Secretary of State Hillary Clinton Apologize For A Failed Foreign Policy Leading To Genocide and Democide in Iraq, Syria, and Libya? — Yes, but They Never Take Responsibility For Their Failures But Blame It On Others — No Wonder Carson and American People Oppose A Muslim President — ‘How Do You Spell Genocide? O-B-A-M-A’ — Videos
United States Constitution
Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
https://www.law.cornell.edu/constitution/articlevi
U.S. Bill of Rights
Amendment I (1): Freedom of religion, speech, and the press; rights of assembly and petition
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
https://www.constitutionfacts.com/us-constitution-amendments/bill-of-rights/
Sharia Law
Sharia law is the law of Islam. The Sharia (also spelled Shariah or Shari’a) law is cast from the actions and words of Muhammad, which are called “Sunnah,” and the Quran, which he authored.
The Sharia law itself cannot be altered, but the interpretation of the Sharia law, called “figh,” by imams is given some leeway.
As a legal system, the Sharia law covers a very wide range of topics. While other legal codes deal primarily with public behavior, Sharia law covers public behavior, private behavior and private beliefs. Of all legal systems in the world today, Islam’s Sharia law is the most intrusive and strict, especially against women.
According to the Sharia law:
• Theft is punishable by amputation of the right hand (above).
• Criticizing or denying any part of the Quran is punishable by death.
• Criticizing or denying Muhammad is a prophet is punishable by death.
• Criticizing or denying Allah, the moon god of Islam is punishable by death.
• A Muslim who becomes a non-Muslim is punishable by death.
• A non-Muslim who leads a Muslim away from Islam is punishable by death.
• A non-Muslim man who marries a Muslim woman is punishable by death.
• A man can marry an infant girl and consummate the marriage when she is 9 years old.
• Girls’ clitoris should be cut (per Muhammad‘s words in Book 41, Kitab Al-Adab, Hadith 5251).
• A woman can have 1 husband, but a man can have up to 4 wives; Muhammad can have more.
• A man can unilaterally divorce his wife but a woman needs her husband’s consent to divorce.
• A man can beat his wife for insubordination.
• Testimonies of four male witnesses are required to prove rape against a woman.
• A woman who has been raped cannot testify in court against her rapist(s).
• A woman’s testimony in court, allowed only in property cases, carries half the weight of a man’s.
• A female heir inherits half of what a male heir inherits.
• A woman cannot drive a car, as it leads to fitnah (upheaval).
• A woman cannot speak alone to a man who is not her husband or relative.
• Meat to be eaten must come from animals that have been sacrificed to Allah – i.e., be Halal.
• Muslims should engage in Taqiyya and lie to non-Muslims to advance Islam.
• The list goes on.
http://www.billionbibles.org/sharia/sharia-law.html
HUMAN GENOCIDE DOCUMENTARY. IRAQ AND SYRIA . ISIS, USA, UN ::: 2ND AUGUST 2014
Christians in Iraq are heeding an ultimatum by the Islamic State of Iraq and the Levant to convert to Islam, get out or be killed.
Reports from the Middle East say that large numbers of Christians have fled the northern city of Mosul — now under control of the ISIL — after a message warning them to get out by Saturday was broadcast by loudspeakers on the city’s mosques.
An ISIL document reviewed by AFP said that there would be “nothing for them but the sword” if Christians didn’t adhere to the deadline.
The ISIL announcement also said that Christians could stay and pay a tax, often known as a “jizya,” though the exact amount was unspecified. A jizya is a historical policy of allowing non-Muslims to keep their own religion and their property if they pay a certain amount to Islamic rulers.
In centuries past, there have been examples of Christians paying the tax and living peacefully with Muslims. Recently however, it has often been exploited as a form of extortion against non-Muslims.
Many Christian families fleeing Mosul didn’t seem to put much trust in the promise of peace.
The aim of this documentary is to raise awareness.
WE ARE URGING ALL: PEOPLE TO SPEAK UP AND DO SOMETHING!!!
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Republican presidential candidate Ben Carson said today he would not support a Muslim as president on meet the press The retired neurosurgeon also said Islam, as a religion, was inconsistent with the Constitution. Carson told NBC’s “Meet the Press” he believed a president’s faith should matter “depending on what that faith is.” “I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that,” Carson said. “If it’s [a president’s faith] inconsistent with the values and principles of America, then of course it should matter.” Carson, who has been near the top of several presidential polls, said he would consider voting for a Muslim in Congress “[depending] on who that Muslim is and what their policies are.” ABC News has reached out to Carson’s campaign for comment.
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Sharia Law and the U.S. Constitution
[Update I: I have streamlined the following post to be easily readable to the average layman, but informative enough for a lawyer or law professor to learn a bit more on the similarities and differences between Sharia and U.S. Law]
Is Sharia compatible with the U.S. Constitution?
The simple answer is of course “no”.
But lets take a look at some aspects of Sharia Law and where it may or may not conflict with the U.S. Constitution. (For disclosure I am not a lawyer nor a legal expert in Sharia or U.S. Law.)
First, what is Sharia?
Wikipedia states Sharia refers to the sacred law of Islam. All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails. Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.
In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).
The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.
The following is a truncated version with a couple of modifications (eliminating repetitious ibids and links) of multiple Wikipedia entries [with my comments]:
Legal and Court Proceedings:
Wikipedia states that Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law.
1. Sharia courts do not generally employ lawyers; plaintiffs and defendants represent themselves.
2. Trials are conducted solely by the judge, and there is no jury system.
3. There is no pre-trial discovery process, no cross-examination of witnesses, and no penalty of perjury (on the assumption that no witness would thus endanger his soul) Unlike common law, judges’ verdicts do not set binding precedents under the principle of stare decisis and unlike civil law, Sharia does not utilize formally codified statutes (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle).
4. Instead of precedents and codes, Sharia relies on medieval jurist’s manuals and collections of non-binding legal opinions, or fatwas, issued by religious scholars (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.
5. Sharia courts’ rules of evidence also maintain a distinctive custom of prioritizing oral testimony and excluding written and documentary evidence (including forensic and circumstantial evidence), on the basis that it could be tampered with or forged.
6. A confession, an oath, or the oral testimony of a witness are the only evidence admissible in a Sharia court, written evidence is only admissible with the attestations of multiple, witnesses deemed reliable by the judge, i.e. notaries.
7. Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character; testimony to establish the crime of adultery, or zina must be from four direct witnesses.
8. Forensic evidence (i.e. fingerprints, ballistics, blood samples, DNA etc.) and othercircumstantial 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. Testimony from women is given only half the weight of men [in most sources outside of Wikipedia Sharia states that a woman’s testimony only carries the weight of 1/4th of a man’s], and testimony from non-Muslims may be excluded altogether (if against a Muslim).
10. 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.
11. 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.
12. Sharia courts, with their tradition of pro se representation, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, juries and voir dire proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings. [that’s one way of putting it]
13. This can provide significant increases in speed and efficiency (at the cost of the safeguards provided in secular legal systems), and can be an advantage in jurisdictions where the general court system is slow or corrupt, and where few litigants can afford lawyers. (end Wikipedia)
This is not a concise review of the difference nor similarities between U.S. Law and Sharia. It is only meant to educate us on what Sharia law is in comparison to our legal system.
http://the-american-catholic.com/2010/06/25/sharia-law-and-the-u-s-constitution/
Sharia
Sharia applies in full, covering personal status issues as well as criminal proceedings
Sharia applies in personal status issues (such as marriage, divorce, inheritance, and child custody)
Regional variations in the application of Sharia
Members of the Organisation of Islamic Cooperation where Sharia plays no role in the judicial system
Sharia or sharia law (Arabic: شريعة (IPA: [ʃaˈriːʕa]), is the Islamic legal system[1] derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term sharia comes from the Arabic language term sharīʿah, which means a body of moral and religious law derived from religious prophecy, as opposed to human legislation.[2][3][4]
Sharia deals with many topics, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, everyday etiquette and fasting. Adherence to sharia has served as one of the distinguishing characteristics of the Muslim faith historically.[5] In its strictest and most historically coherent definition, sharia is considered in Islam as the infallible law of God.[6]
There are two primary sources of sharia: the Quran, and the Hadiths (opinions and life example of Muhammad).[7] For topics and issues not directly addressed in these primary sources, sharia is derived. The derivation differs between the various sects of Islam (Sunni and Shia), and various jurisprudence schools such as Hanafi, Maliki, Shafi’i, Hanbali andJafari.[8][9] The sharia in these schools is derived hierarchically using one or more of the following guidelines: Ijma(usually the consensus of Muhammad’s companions), Qiyas (analogy derived from the primary sources), Istihsan(ruling that serves the interest of Islam in the discretion of Islamic jurists) and Urf (customs).[8][10]
Sharia is a significant source of legislation in various Muslim countries. Some apply all or a majority of the sharia code, and these include Saudi Arabia, Sudan, Iran, Afghanistan, Pakistan, Brunei, United Arab Emirates, Qatar, Yemen andMauritania. In these countries, sharia prescribed punishments such as beheading, flogging and stoning continue to be practiced judicially or extra-judicially.[11][12] The introduction of sharia is a longstanding goal for Islamist movements globally, including in Western countries, but attempts to impose sharia have been accompanied by controversy,[13]violence,[14] and even warfare.[15] Most countries do not recognize sharia; however, some countries in Asia, Africa and Europe recognize parts of sharia and accept it as the law on divorce, inheritance and other personal affairs of their Islamic population.[16] In Britain, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, and this limited adoption of sharia is controversial.[17]
The concept of crime, judicial process, justice and punishment embodied in sharia is different from that of secular law.[18] The differences between sharia and secular laws have led to an ongoing controversy as to whether sharia is compatible with secular forms of government, human rights, freedom of thought, and women’s rights.[19][20][21]
Etymology and origins[edit]
Scholars describe the word sharia (/ʃɑːˈriːɑː/, also shari’a, šarīʿah) as an archaic Arabic word denoting “pathway to be followed” (analogous to the Hebrew termHalakhah [“The Way to Go”]),[22] or “path to the water hole”. The latter definition comes from the fact that the path to water is the whole way of life in an arid desert environment.[23]
The etymology of sharia as a “path” or “way” comes from the Quranic verse[Quran 45:18]: “Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not.”[22] Malik Ghulam Farid in his Dictionary of the Holy Quran, believes the “Way” in 45:18 (quoted above) derives from shara’a (as prf. 3rd. p.m. sing.), meaning “He ordained”. Other forms also appear: shara’u[Quran 45:13] as (prf. 3rd. p.m. plu.), “they decreed (a law)”[Quran 42:21]; and shir’atun (n.) meaning “spiritual law”[Quran 5:48].[24]
The Arabic word sharīʿa has origins in the concept of ‘religious law’; the word is commonly used by Arabic-speaking peoples of the Middle East and designates a prophetic religion in its totality. Thus, sharīʿat Mūsā means religious law of Moses (Judaism), sharīʿat al-Masīḥ means religious law of Christianity, sharīʿat al-Madjūs means religious law of Zoroastrianism.[3]
Sharia in the Islamic world is also known as Qānūn-e Islāmī (قانون اسلامی).[citation needed]
History
In Islam, the origin of sharia is the Qu’ran, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca).[26]
Sharia underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) for Sunni Muslims, and Imam Ali for Shia Muslims, during which time many questions were brought to the attention of Muhammad’s closest comrades for consultation.[27] During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.[27] Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.
The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[28] Progress in theory was started by 8th and 9th century Islamic scholars Abu Hanifa, Malik bin Anas, Al-Shafi’i, Ahmad ibn Hanbal and others.[8][29] Al-Shafi‘i is credited with deriving the theory of valid norms for sharia (uṣūl al-fiqh), arguing for a traditionalist, literal interpretation of Quran, Hadiths and methodology for law as revealed therein, to formulate sharia.[30][31]
A number of 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. These shaped different versions of sharia in different schools of Islamic jurisprudence, called fiqhs.[32][33][34]
The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions.[35] Under the Umayyads Islamic scholars were “sidelined” from administration of justice and attempts to systematically uphold and develope Islamic law would wait for Abbasid rule.[36] The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence.[37] The Abbasid made the institution of qadi independent from the government, but this separation wasn’t always respected.[38]
Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Quran or the sunnah. Imam Shafi’i declared: “atradition from the Prophet must be accepted as soon as it become known…If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favor of the tradition from the Prophet.” Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behavior for Muslims.[39]
In modern times, the Muslim community have divided points of view: secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines; traditionalists believe that the law of the state should be based on the traditional legal schools;[40] reformers believe that new Islamic legal theories can produce modernized Islamic law[41] and lead to acceptable opinions in areas such as women’s rights.[42] This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).
There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.[43][44]
Definitions and disagreements
Sharia, in its strictest definition, is a divine law, as expressed in the Quran and Muhammad’s example (often called the sunnah). As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the law.[45][46] Many scholars have pointed out that the sharia is not formally a code,[47] nor a well-defined set of rules.[48] The sharia is characterized as a discussion on the duties of Muslims[47] based on both the opinion of the Muslim community and extensive literature.[49] Hunt Janin and Andre Kahlmeyer thus conclude that the sharia is “long, diverse, and complicated.”[48]
From the 9th century onward, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.[50] 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.[51] 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.[52][53] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires as before.[54] 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.[55][56]
According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, “Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite.” Otto’s analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.[57]
Sources of sharia law
There are two sources of sharia (understood as the divine law): the Quran and the Sunnah. The Quran is viewed as the unalterable word of God. It is considered in Islam to be an infallible part of sharia. The Quran covers a host of topics including God, personal laws for Muslim men and Muslim women, laws on community life, laws on expected interaction of Muslims with non-Muslims, apostates and ex-Muslims, laws on finance, morals, eschatology, and others.[58][59] The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah’s importance as a source of sharia, is confirmed by several verses of the Quran (e.g.[Quran 33:21]).[60] The Sunnah is primarily contained in the hadith or reports of Muhammad’s sayings, his actions, his tacit approval of actions and his demeanor. While there is only one Quran, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasa’i, Ibn Majah. The collections by al-Bukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them.[61] For Shias, the Sunnah include life and sayings of The Twelve Imams.[62]
Quran versus Hadith
Muslims who reject the Hadith as a source of law, sometimes referred to as Quranists,[63][64] suggest that only laws derived exclusively from the Quran are valid.[65]They state that the hadiths in modern use are not explicitly mentioned in the Quran as a source of Islamic theology and practice, they were not recorded in written form until more than two centuries after the death of the prophet Muhammed.[63] They also state that the authenticity of the hadiths remains a question.[66][67]
The vast majority of Muslims, however, consider hadiths, which describe the words, conduct and example set by Muhammad during his life, as a source of law and religious authority second only to the Qur’an.[68] Similarly, most Islamic scholars believe both Quran and sahih hadiths to be a valid source of sharia, with Quranic verse 33.21, among others,[69][70] as justification for this belief.[64]
For vast majority of Muslims, sharia has historically been, and continues to be derived from both the Quran and the Hadiths.[64][68][70] The Sahih Hadiths of Sunni Muslims contain isnad, or a chain of guarantors reaching back to a companion of Muhammad who directly observed the words, conduct and example he set – thus providing the theological ground to consider the hadith to be a sound basis for sharia.[64][70] For Sunni Muslims, the musannaf in Sahih Bukhari and Sahih Muslim is most trusted and relied upon as source for Sunni Sharia.[71] Shia Muslims, however, do not consider the chain of transmitters of Sunni hadiths as reliable, given these transmitters belonged to Sunni side in Sunni-Shia civil wars that followed after Muhammad’s death.[72] Shia rely on their own chain of reliable guarantors, trusting compilations such as Kitab al-Kafi and Tahdhib al-Ahkam instead, and later hadiths (usually called akhbār by Shi’i).[73][74] The Shia version of hadiths contain the words, conduct and example set by Muhammad and Imams, which they consider as sinless, infallible and an essential source of sharia for Shi’ite Muslims.[72][75]However, in substance, the Shi’ite hadiths resemble the Sunni hadiths, with one difference – the Shia hadiths additionally include words and actions of its Imams (al-hadith al-walawi), the biological descendants of Muhammad, and these too are considered an important source for sharia by Shi’ites.[73][76]
Disagreements on Quran
Some scholars such as John Wansbrough have challenged the authenticity of the Quran and whether it was written in the time of Muhammad.[77] In contrast, Estelle Whelan has refuted Wansbrough presenting evidence such as the inscriptions on the Dome of the Rock.[78][79] John Burton states that medieval era Islamic texts claiming Quran was compiled after the death of the Prophet were forged to preserve the status-quo.[80] The final version of the Quran, states Burton, was compiled while the Prophet was still alive.[81] Most scholars accept that the Quran as is used for Sharia, was compiled into the final current form during the caliphate of Uthman.[82][83]
From the founding of Islam, the Muslim community has also debated the authenticity of compiled verses and the consistency within the Quran.[84][85] The inconsistencies in deriving sharia from the Quran, were recognized and formally complicated by verses 2.106 and 16.101 of the Quran, which are known as the “verses of abrogation (Naskh)”,[86]
The principle of abrogation has been historically accepted and applied by Islamic jurists on both the Quran and the Sunnah.[84][86] Sharia is thus determined through a chronological study of the primary sources, where older revelations are considered invalid and overruled by later revelations.[86][87] While an overwhelming majority of historical and modern Islamic scholars have accepted the principle of abrogation for the Quran and the Sunnah, some modern scholars disagree that the principle of abrogation necessarily applies to the Quran.[88]
Islamic jurisprudence (Fiqh)
Fiqh (school of Islamic jurisprudence) represents the process of deducing and applying sharia principles, as well as the collective body of specific laws deduced from sharia using the fiqh methodology.[8] While Quran and Hadith sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh covers all aspects of law, including religious, civil, political, constitutional and procedural law.[89] Fiqh deploys the following to create Islamic laws:[8]
If the above two sources do not provide guidance for an issue, then different fiqhs deploy the following in a hierarchical way:[8]
Map of the Muslim world with the main schools of Islamic law (madhhab)
A Madhhab is a Muslim school of law that follows a fiqh (school of religious jurisprudence). In the first 150 years of Islam, there were many madhhab. Several of the Sahābah, or contemporary “companions” of Muhammad, are credited with founding their own. In the Sunni sect of Islam, the Islamic jurisprudence schools of Medina (Al-Hijaz, now in Saudi Arabia) created the Maliki madhhab, while those in Kufa (now in Iraq) created the Hanafimadhhab.[93] Abu al-Shafi’i, who started as a student of Maliki school of Islamic law, and later was influenced by Hanafi school of Islamic law, disagreed with some of the discretion these schools gave to jurists, and founded the more conservative Shafi’i madhhab, which spread from jurisprudence schools in Baghdad (Iraq) and Cairo (Egypt).[94] Ahmad ibn Hanbal, a student of al-Shafi’i, went further in his criticism of Maliki and Hanafi fiqhs, criticizing the abuse and corruption of sharia from jurist discretion and consensus of later generation Muslims, and he founded the more strict, traditionalist Hanbali school of Islamic law.[95] Other schools such as the Jaririwere established later, which eventually died out.
Sunni sect of Islam has four major surviving schools of sharia: Hanafi, Maliki, Shafi’i, Hanbali; one minor school is named Ẓāhirī. Shii sect of Islam has three: Ja’fari(major), Zaydi and Ismaili.[96][97][98] There are other minority fiqhs as well, such as the Ibadi school of Khawarij sect, and those of Sufi and Ahmadi sects.[89][99] All Sunni and Shia schools of sharia rely first on the Quran and the sayings/practices of Muhammad in the Sunnah. Their differences lie in the procedure each uses to create Islam-compliant laws when those two sources do not provide guidance on a topic.[100] The Salafi movement creates sharia based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims.[101]
Hanafi-based sharia spread with the patronage and military expansions led by Turkic Sultans and Ottoman Empire in West Asia, Southeast Europe, Central Asia and South Asia.[102][103] It is currently the largest madhhab of Sunni Muslims.[104] Maliki-based sharia is predominantly found in West Africa, North Africa and parts of Arabia.[104] Shafii-based sharia spread with patronage and military expansions led by maritime Sultans, and is mostly found in coastal regions of East Africa, Arabia, South Asia, Southeast Asia and islands in the Indian ocean.[105] The Hanbali-based sharia prevails in the smallest Sunni madhhab, predominantly found in the Arabian peninsula.[104] The Shia Jafari-based sharia is mostly found in Persian region and parts of West Asia and South Asia.
Along with interpretation, each fiqh classifies its interpretation of sharia into one of the following five categories: fard (obligatory), mustahabb (recommended),mubah (neutral), makruh (discouraged), and haraam (forbidden). A Muslim is expected to adhere to that tenet of sharia accordingly.[106]
The recommended, neutral and discouraged categories are drawn largely from accounts of the life of Muhammad. To say a behaviour is sunnah is to say it is recommended as an example of the life and sayings of Muhammad. These categories form the basis for proper behaviour in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.[106]
Areas of Islamic law
(fiqh)
The areas of Islamic law include:
Shari’ah law has been grouped in different ways, such as:[110][111] Family relations, Crime and punishment, Inheritance and disposal of property, The economic system, External and other relations.
“Reliance of the Traveller“, an English translation of a fourteenth-century CE reference on the Shafi’i school of fiqh written by Ahmad ibn Naqib al-Misri, organizes sharia law into the following topics: Purification, prayer, funeral prayer, taxes, fasting, pilgrimage, trade, inheritance, marriage, divorce and justice.
In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.
Disagreement on the objectives of Islamic law
A number of scholars have advanced “objectives” (مقاصد maqaṣid al-Shariah also “goals” or “purposes”) they believe the Sharia is intended to achieve. Abu Hamid Al-Ghazali argued that they were the preservation of Islamic religion, and in the temporal world the protection of life, progeny, intellect and wealth of Muslims.[112][113]Yazid et al summarize sharia’s objective to be recognize the limitations of reason, and complement the role of reason with revelation.[114] They state that objective of sharia in Islamic finance is to provide rules and regulations from the Quran and Sunnah.[114]
Jan Otto writes that moderate Muslims and puritan Muslims differ in their interpretation of the objectives of sharia.[115] The moderate Muslims consider sharia to be a flexible code of law, where technicalities of its wording cannot subvert sharia’s objectives to “help Muslims in their quest for submission, humility, gratitude before God, and a quest for Godliness”.[115] In contrast, according to Otto, puritan Muslims believe that sharia is a strict, complete and exact set of rules that one must submit to, by strict compliance, because it is only “through meticulous obedience, Muslims will avoid punishment of God in after-life and will enter heaven” which is the ultimate objective, and it does not matter if some sharia “law is harsh or that its application results in social suffering, this perception is considered delusional”.[115]
Application
Application by country
Use of Sharia by country:
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.[116][117] Most use sharia for personal law (marriage, divorce, domestic violence, child support, family law, inheritance and such matters).[118][119] Elements of sharia are present, to varying extents, in the criminal justice system of many Muslim-majority countries.[12]Saudi Arabia, Yemen, Brunei, Qatar, United Arab Emirates, Iraq, Iran, Pakistan, Afghanistan, Sudan andMauritania apply the code predominantly or entirely.[12][120]
Most Muslim-majority countries with sharia-prescribed hudud punishments in their legal code, do not prescribe it routinely and use other punishments instead.[116][121] The harshest sharia penalties such as stoning, beheadingand the death penalty are enforced with varying levels of consistency.[122]
Since 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.[123] Some moderates and liberal scholars within these Muslim countries have argued for limited expansion of sharia.[124]
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.[125][126] 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.”[127][128]
Enforcement
Sharia is enforced in Islamic nations in a number of ways, including mutaween and hisbah.[citation needed]
The mutaween (Arabic: المطوعين، مطوعية muṭawwiʿīn, muṭawwiʿiyyah)[129] are the government-authorized or government-recognized religious police (or clericalpolice) of Saudi Arabia. Elsewhere, enforcement of Islamic values in accordance with sharia is the responsibility of Polisi Perda Syariah Islam in Aceh province ofIndonesia,[130] Committee for the Propagation of Virtue and the Prevention of Vice (Gaza Strip) in parts of Palestine, and Basiji Force in Iran.[131]
Official from the Department ofPropagation of Virtue and the Prevention of Vice, beating a woman inAfghanistan for violating local interpretation of sharia.[132][133]
Hisbah (Arabic: حسبة ḥisb(ah), or hisba) is a historic Islamic doctrine which means “accountability”.[134] 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.[135][136][137] Some Salafist suggest that enforcement of sharia under the Hisbah doctrine is the sacred duty of all Muslims, not just rulers.[135] The doctrine of Hisbah in Islam has traditionally allowed any Muslim to accuse another Muslim, ex-Muslim or non-Muslim for beliefs or behavior that may harm Islamic society. This principle has been used in countries such as Egypt, Pakistan and others to bring blasphemy charges against apostates.[138]For example, in Egypt, sharia was enforced on the Muslim scholar Nasr Abu Zayd, through the doctrine of Hasbah, when he committed apostasy.[139][140] Similarly, in Nigeria, after twelve northern Muslim-majority states such as Kano adopted sharia-based penal code between 1999 and 2000, hisbah became the allowed method of sharia enforcement, where all Muslim citizens could police compliance of moral order based on sharia.[141] In Aceh province of Indonesia, Islamic vigilante activists have invoked Hasbah doctrine to enforce sharia on fellow Muslims as well as demanding non-Muslims to respect sharia.[142]Hisbah has been used in many Muslim majority countries, from Morocco to Egypt and in West Asia to enforce sharia restrictions on blasphemy and criticism of Islam over internet and social media.[143][144][145]
Legal and court proceedings
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 discoveryprocess, and no cross-examination of witnesses. Unlike common law, judges’ verdicts do not set binding precedents[146][147] under the principle of stare decisis,[148]and unlike civil law, sharia is left to the interpretation in each case and has no formally codified universal statutes.[149]
The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.[150] Witnesses, in a sharia court system, must be faithful, that is Muslim.[151] 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.[152][153] In civil cases, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.[154][155] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of sharia, such as those found in Hanbali madhhab.[151]
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.[156][157][158] 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.[159] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and othercircumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.[160][161]
Muslim jurists have debated whether and when coerced confession and coerced witnesses are acceptable. The majority opinion of jurists in the Hanafi madhhab, for example, ruled that torture to get evidence is acceptable and such evidence is valid, but a 17th-century text by Hanafi jurist Muhammad Shaykhzade argued that coerced confession should be invalid; Shaykhzade acknowledged that beating to get confession has been authorized in fatwas by many Islamic jurists.[162]
Quran recommends written contracts in the case of debt-related transactions, and oral contracts for commercial and other civil contracts.[155][163] 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.[164] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.[165]
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.[165][166]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.[166][167]
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.[168] 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.”[169] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[169] instead oaths are a solemn procedure performed as a final part of the evidence process.
Sharia courts treat women and men as unequal, with Muslim woman’s life and blood-money compensation sentence (Diyya) as half as that of a Muslim man’s life.[170][171] Sharia also treats Muslims and non-Muslims as unequal in the sentencing process.[172] Human Rights Watch and United States’ Religious Freedom Report note that in sharia courts of Saudi Arabia, “The calculation of accidental death or injury compensation is discriminatory. In the event a court renders a judgment in favor of a plaintiff who is a Jewish or Christian male, the plaintiff is only entitled to receive 50 percent of the compensation a Muslim male would receive; all other non-Muslims [Buddhists, Hindus, Jains, Atheists] are only entitled to receive one-sixteenth of the amount a male Muslim would receive”.[173][174][175]
Saudi Arabia follows Hanbali sharia, whose historic jurisprudence texts considered a Christian or Jew life as half the worth of a Muslim. Jurists of other schools of law in Islam have ruled differently. For example, Shafi’i sharia considers a Christian or Jew life as a third the worth of a Muslim, and Maliki‘s sharia considers it worth half.[172] The legal schools of Hanafi, Maliki and Shafi’i Sunni Islam as well as those of twelver Shia Islam have considered the life of polytheists and atheists as one-fifteenth the value of a Muslim during sentencing.[172]
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 support for making sharia the official law of the land is very high in many Muslim-majority countries: 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%).[176] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less then 50%: Kosovo (20%), Albania (12%), Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Turkey (12%), Azerbaijan (8%).[176]
In Muslim-majority countries and among Muslims who say sharia should be the law of the land, a percentage between 74% (Egypt) and 19% (Kazakhstan) want sharia law to apply to non-Muslims as well.[177]
A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed wanted sharia in British law.[178]
Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia not just within their own borders; their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.[179] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey’s secular government.[179] These movements can be considered neo-Sharism.[180]
Extremism
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.[181][182]
The sharia basis of arguments of those advocating terrorism, however, remain controversial. Some scholars state that Islamic law prohibits the killing of civilian non-combatants; in contrast, others interpret Islamic law differently, concluding that all means are legitimate to reach their aims, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians, in order to universalize Islam.[181] Islam, in these interpretations, “does not make target differences between militaries and civilians but between Muslims and unbelievers. Therefore it is legitimated (sic) to spill civilians’ blood”.[181] Other scholars of Islam, interpret sharia differently, stating, according to Engeland-Nourai, “attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment […]. It’s not courageous to attack innocent children, women and civilians. It is courageous to protect freedom; it is courageous to defend one and not to attack”.[181][183]
Criticism
A protester opposing the Park51project, carries an anti-sharia sign.
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”.[184][185]Other scholars say sharia is not compatible with democracy, particularly where the country’s constitution demands separation of religion and the democratic state.[186][187]
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.[188] 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.[189][190]
On appeal by Refah the European Court of Human Rights determined that “sharia is incompatible with the fundamental principles of democracy”.[191][192][193] 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”.[194]
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.[195] 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.[196][197] 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][199]
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“.[200]
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, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam.”[201]
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).[202] Bassam Tibi states that sharia framework and human rights are incompatible.[203] Abdel al-Hakeem Carney, in contrast, states that sharia is misunderstood from a failure to distinguish sharia from siyasah (politics).[204]
Freedom of speech
Blasphemy in Islam is any form of cursing, questioning or annoying God, Muhammad or anything considered sacred in Islam.[205][206][207] 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.[205][208][209] In some cases, sharia allows non-Muslims to escape death by converting and becoming a devout follower of Islam.[210]
Blasphemy, as interpreted under sharia, is controversial. Muslim nations have petitioned the United Nations to limit “freedom of speech” because “unrestricted and disrespectful opinion against Islam creates hatred”.[211] Other nations, in contrast, consider blasphemy laws as violation of “freedom of speech”,[212] 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.[213][214]
Freedom of thought, conscience and religion
According to the United Nations’ Universal Declaration of Human Rights,[215] 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[19][216][217] of Islamic law, the applicable rules for religious conversion under sharia are as follows:
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.[219][220] 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.[221][222][223][224] 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).[225][226] 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 Shari’a verse teaches, “there is no compulsion in religion.”[227] Other scholars claim sharia recognizes only one proper religion, considers apostasy as sin punishable with death, and members of other religions as kafir (infidel);[228] or hold that Shari’a demands that all apostates and kafir must be put to death, enslaved or be ransomed.[229][230][231][232] Yet other scholars suggest that Shari’a has become a product of human interpretation and inevitably leads to disagreements about the “precise contents of the Shari’a.” In the end, then, what is being applied is not sharia, but what a particular group of clerics and government decide is sharia. It is these differing interpretations of Shari’a that explain why many Islamic countries have laws that restrict and criminalize apostasy, proselytism and their citizens’ freedom of conscience and religion.[233][234]
LGBT rights
Homosexual intercourse is illegal under sharia law, though the prescribed penalties differ from one school of jurisprudence to another. For example, only a few Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,[235] Saudi Arabia,[236] and Somalia.[237] In other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh,[238] same-sex sexual acts are illegal,[239] and LGBT people regularly face violence and discrimination.[240]
Women
Domestic violence
Many scholars[20][241] claim Shari’a law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.[242] Other scholars claim wife beating, for nashizah, is not consistent with modern perspectives of the Quran.[243]
One of the verses of the Quran relating to permissibility of domestic violence is Surah 4:34.[244][245] In deference to Surah 4:34, many nations with Shari’a law have refused to consider or prosecute cases of domestic abuse.[246][247][248][249] Shari’a has been criticized for ignoring women’s rights in domestic abuse cases.[250][251][252][253] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify Shari’a-inspired laws to improve women’s rights in Islamic nations, including women’s rights in domestic abuse cases.[254][255][256][257]
Personal status laws and child marriag
Shari’a is the basis for personal status laws in most Islamic majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report concludes that Shari’a law provisions are discriminatory against women from a human rights perspective. In legal proceedings under Shari’a law, a woman’s testimony is worth half of a man’s before a court.[154]
Except for Iran, Lebanon and Bahrain which allow child marriages, the civil code in Islamic majority countries do not allow child marriage of girls. However, with Shari’a personal status laws, Shari’a courts in all these nations have the power to override the civil code. The religious courts permit girls less than 18 years old to marry. As of 2011, child marriages are common in a few Middle Eastern countries, accounting for 1 in 6 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.[258][259]
Rape is considered a crime in all countries, but Shari’a courts in Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia in some cases allow a rapist to escape punishment by marrying his victim, while in other cases the victim who complains is often prosecuted with the crime of Zina (adultery).[154][260][261]
Women’s right to property and consent
Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran.[262] A woman’s inheritance is unequal and less than a man’s, and dependent on many factors.[Quran 4:12][263] For instance, a daughter’s inheritance is usually half that of her brother’s.[Quran 4:11][263]
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, that Western legal systems did not grant to women.[264][265] 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.[266][267] 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.[266][268] Under Islamic law, Muslim men could have sexual relations with female captives and slaves without her consent.[269][270]
Slave women under sharia did not have a right to own property, right to free movement or right to consent.[271][272] Sharia, in Islam’s history, provided religious foundation for enslaving non-Muslim women (and men), as well as encouraged slave’s manumission. However, manumission required that the non-Muslim slave first convert to Islam.[273][274] Non-Muslim slave women who bore children to their Muslim masters became legally free upon her master’s death, and her children were presumed to be Muslims as their father, in Africa,[273] and elsewhere.[275]
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 Quran, hadiths and their faithful interpretation as sharia by Islamic jurists.[270][276]
Parallels with Western legal systems
Elements of Islamic law have influenced western legal systems. As example, the influence of Islamic influence on the development of an international law of the sea” can be discerned alongside that of the Roman influence.[277]
Makdisi states Islamic law also influenced the legal scholastic system of the West.[278] The study of legal text and degrees have parallels between Islamic studies of sharia and the Western system of legal studies. For example, the status of faqih (meaning “master of law“), mufti (meaning “professor of legal opinions“) andmudarris (meaning “teacher”), which were later translated into Latin as magister, professor and doctor respectively.[278]
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.[279] Interest prohibitions also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.[280] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.[281]
See also
Further reading
External links
https://en.wikipedia.org/wiki/Sharia
Ben Carson says no Muslim should ever become US president
The Republican presidential candidate Ben Carson has said no Muslim should be president of the United States of America.
In an interview with NBC for broadcast on Sunday morning, the retired neurosurgeon said: “I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that.”
Carson’s discussion with Meet the Press host Chuck Todd centered around controversy that arose this week when Donald Trump – the real-estate mogul keeping Carson in second place in the polls – failed to correct an audience member at a New Hampshire campaign rally who said President Obama was a Muslim.
The audience member also appeared to advocate the forcible removal of Muslims from the US.
On Saturday, in a series of tweets on the subject, Trump defended himself and said: “Am I morally obligated to defend the president every time somebody says something bad or controversial about him? I don’t think so!”
Trump: I was not obligated to correct questioner who called Obama Muslim
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He also addressed the issue in an appearance before an evangelical audience in Iowa, at which he brandished a Bible and said: “You see, I’m better than you thought.”
In such circles, Trump has lost some support to Carson.
In his NBC interview, Carson was asked: “So do you believe that Islam is consistent with the constitution?”
“No,” he said, “I don’t, I do not.”
Article VI of the US constitution states: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
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The first amendment to the constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
Carson, a Christian, is a member of the Seventh Day Adventist church. In October, he will publish a new book, written with his wife Candy Carson and entitled A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties.
In publicity material issued by Penguin Random House, Carson is quoted as saying: “I believe that making a difference starts with understanding our amazing founding document, the US constitution.
“And as someone who has performed brain surgery thousands of times, I can assure you that the constitution isn’t brain surgery.
He adds that he and his wife wrote the book to “help defend” the constitution “from those who misinterpret and undermine it”.
Carson did have a constituency to speak to, however. In a recent poll, 38% of voters said they would not vote for a Muslim president.
Quiet rise of Ben Carson is shaking up Republican presidential race
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The Ohio governor, John Kasich, who is polling an average of 2.5%, enough for 10th place out of 16, was also asked by NBC if he “would ever have a problem with a Muslim becoming president”.
Kasich, one of the more moderate candidates in the GOP field, also had to field a question about whether he was a Republican at all. He did not say he would have a problem with a Muslim president, but nor did he dismiss the question.
“You know, I mean, that’s such a hypothetical question,” Kasich said. “The answer is, at the end of the day, you’ve got to go through the rigours, and people will look at everything.
“But, for me, the most important thing about being president is you have leadership skills, you know what you’re doing, and you can help fix this country and raise this country. Those are the qualifications that matter to me.”
Carson was also asked if he would consider voting for a Muslim candidate for Congress.
He said: “Congress is a different story, but it depends on who that Muslim is and what their policies are, just as it depends on what anybody else says, you know.”
Two members of Congress, both Democrats, are Muslim: Keith Ellison of Minnesota was elected to the House of Representatives in 2007 and André Carson of Indiana followed in 2008.
Every American should be disturbed … national figures are engaging in and tolerating blatant acts of religious bigotry
Representative Keith Ellison
This week, Ellison carried a clock around Congress to show support for Ahmed Mohamed, a 14-year-old boy who was arrested at his school in Irving, Texas, over suspicions a homemade clock was in fact a bomb.
On Sunday Ellison, the first Muslim ever elected to Congress, released a statement in answer to Carson’s comments.
“For Ben Carson, Donald Trump, or any other Republican politician to suggest that someone of any faith is unfit for office is out of touch with who we are as a people,” he said.
“It’s unimaginable that the leading GOP presidential candidates are resorting to fear mongering to benefit their campaigns, and every American should be disturbed that these national figures are engaging in and tolerating blatant acts of religious bigotry.”
Ahmed Mohamed is tired, excited to meet Obama – and wants his clock back
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According to the Pew Research Center, the 114th Congress contains 491 Christians, of which 306 are Protestant, split between 13 sects though without any declared Anabaptists, Quakers or Pietists.
Another 164 members of Congress are Catholic, while 16 are Mormon and five Orthodox Christian. As well as the two Muslims there are 28 Jewish and two Buddhist members of Congress; there is one Hindu member, one Unitarian Universalist and one “unaffiliated”.
Nine members of Congress either told the Pew researchers they didn’t know what religion they were, or refused to answer the question.
On Meet the Press, Carson continued: “And, you know, if there’s somebody who’s of any faith, but they say things, and their life has been consistent with things that will elevate this nation and make it possible for everybody to succeed, and bring peace and harmony, then I’m with them.”
Asked if he believed President Obama was both born in the US – another issue raised at the Trump rally on Thursday and not rebutted by the candidate – and a Christian, Carson said: “I believe that he is. I have no reason to doubt what he says.”
http://www.theguardian.com/us-news/2015/sep/20/ben-carson-no-muslim-us-president-trump-obama
Carson says he does not agree with a Muslim being elected president
Republican presidential candidate Ben Carson suggested Sunday that a Muslim should not be president, extending the new and unexpected religion debate on the 2016 campaign trail.
“I would not advocate that we put a Muslim in charge of this nation,” Carson, a Christian and retired neurosurgeon, said on NBC’s “Meet the Press.” “I absolutely would not agree with that.”
Carson, a top-tier 2016 candidate and popular among the GOP’s evangelical wing, made the statement after fellow Republican candidate Donald Trump was addressed by a man during a rally Thursday in New Hampshire who said President Obama is a Muslim.
“We have a problem in this country,” the unidentified man said. “It’s called Muslim. … You know our current president is one.”
Obama says he is a Christian. But Trump has declined to address the issue, saying he is not “morally obligated” to set straight the record.
Carson also described the Islamic faith as inconsistent with the Constitution. However, he did not specify in what way Islam ran counter to constitutional principles.
Carson said he believes Obama is a Christian and has “no reason to doubt what he says.”
He also said he would consider voting for a Muslim running for Congress, depending on “who that Muslim is and what their policies are.”
Carson also made a distinction when it came to electing Muslims to Congress, calling it a “different story” from the presidency that “depends on who that Muslim is and what their policies are, just as it depends on what anybody else says.”
Congress has two Muslim members, Democratic Reps. Keith Ellison of Minnesota and Andre Carson of Indiana.
“If there’s somebody who’s of any faith, but they say things, and their life has been consistent with things that will elevate this nation and make it possible for everybody to succeed, and bring peace and harmony, then I’m with them,” Carson said.
Trump on Sunday told ABC’s “This Week” that he doesn’t talk about other people’s faith and that Obama is “very capable of defending himself.”
He also said the politically correct statement is that Muslims are not a problem in the United States but the reality is that “some” associated with terrorism pose a worldwide threat.
“We can say … everything’s wonderful,” Trump said. “But certainly it is a problem. … if I want to say no, not at all, people would laugh at me.”
Fellow GOP contender and Florida Sen. Marco Rubio told ABC about the Muslim debate: “This has nothing to do with the future of our country. These issues have been discussed ad nauseam over the last few years. It’s a big waste of time. Barack Obama will not be president in a year and a half. It’s time to start talking about the future of America and the people that are at home.”
Carson’s comments drew strong criticism from the country’s largest Muslim civil rights and advocacy organization, the Council on American-Islamic Relations.
“To me this really means he is not qualified to be president of the United States,” said the group’s spokesman, Ibrahim Hooper. “You cannot hold these kinds of views and at the same time say you will represent all Americans, of all faiths and backgrounds.”
Hooper said the Constitution expressly forbids religious tests for those seeking public office and called for the repudiation of “these un-American comments.”
In a separate appearance on NBC, fellow 2016 GOP candidate Ohio Gov. John Kasich, was asked whether he would have a problem with a Muslim in the White House.
“The answer is, at the end of the day, you’ve got to go through the rigors, and people will look at everything. But, for me, the most important thing about being president is you have leadership skills, you know what you’re doing and you can help fix this country and raise this country. Those are the qualifications that matter to me.”
Texas Sen. Ted Cruz, who taped Sunday an episode of Iowa Press, an Iowa Public Television program, was asked if he agreed with Carson’s statements on Muslims being president. “The Constitution specifies that there shall be no religious test for public office, and I am a constitutionalist,” Cruz said.
Democratic National Committee Chairwoman Florida Rep. Debbie Wasserman Schultz said, “It’s hard to understand what’s so difficult about supporting an American citizen’s right to run for president.
“But unsurprisingly, this left Republicans scratching their heads. Of course a Muslim, or any other American citizen, can run for president, end of story.”
http://www.foxnews.com/politics/2015/09/21/carson-suggests-muslim-should-not-be-elected-president/
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Story 1: Should President Obama and Former Secretary of State Hillary Clinton Apologize For A Failed Foreign Policy Leading To Genocide and Democide in Iraq, Syria, and Libya? — Yes, but They Never Take Responsibility For Their Failures But Blame It On Others — No Wonder Carson and American People Oppose A Muslim President — ‘How Do You Spell Genocide? O-B-A-M-A’ — Videos
United States Constitution
Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
https://www.law.cornell.edu/constitution/articlevi
U.S. Bill of Rights
Amendment I (1): Freedom of religion, speech, and the press; rights of assembly and petition
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
https://www.constitutionfacts.com/us-constitution-amendments/bill-of-rights/
Sharia Law
Sharia law is the law of Islam. The Sharia (also spelled Shariah or Shari’a) law is cast from the actions and words of Muhammad, which are called “Sunnah,” and the Quran, which he authored.
The Sharia law itself cannot be altered, but the interpretation of the Sharia law, called “figh,” by imams is given some leeway.
As a legal system, the Sharia law covers a very wide range of topics. While other legal codes deal primarily with public behavior, Sharia law covers public behavior, private behavior and private beliefs. Of all legal systems in the world today, Islam’s Sharia law is the most intrusive and strict, especially against women.
According to the Sharia law:
• Theft is punishable by amputation of the right hand (above).
• Criticizing or denying any part of the Quran is punishable by death.
• Criticizing or denying Muhammad is a prophet is punishable by death.
• Criticizing or denying Allah, the moon god of Islam is punishable by death.
• A Muslim who becomes a non-Muslim is punishable by death.
• A non-Muslim who leads a Muslim away from Islam is punishable by death.
• A non-Muslim man who marries a Muslim woman is punishable by death.
• A man can marry an infant girl and consummate the marriage when she is 9 years old.
• Girls’ clitoris should be cut (per Muhammad‘s words in Book 41, Kitab Al-Adab, Hadith 5251).
• A woman can have 1 husband, but a man can have up to 4 wives; Muhammad can have more.
• A man can unilaterally divorce his wife but a woman needs her husband’s consent to divorce.
• A man can beat his wife for insubordination.
• Testimonies of four male witnesses are required to prove rape against a woman.
• A woman who has been raped cannot testify in court against her rapist(s).
• A woman’s testimony in court, allowed only in property cases, carries half the weight of a man’s.
• A female heir inherits half of what a male heir inherits.
• A woman cannot drive a car, as it leads to fitnah (upheaval).
• A woman cannot speak alone to a man who is not her husband or relative.
• Meat to be eaten must come from animals that have been sacrificed to Allah – i.e., be Halal.
• Muslims should engage in Taqiyya and lie to non-Muslims to advance Islam.
• The list goes on.
http://www.billionbibles.org/sharia/sharia-law.html
HUMAN GENOCIDE DOCUMENTARY. IRAQ AND SYRIA . ISIS, USA, UN ::: 2ND AUGUST 2014
Christians in Iraq are heeding an ultimatum by the Islamic State of Iraq and the Levant to convert to Islam, get out or be killed.
Reports from the Middle East say that large numbers of Christians have fled the northern city of Mosul — now under control of the ISIL — after a message warning them to get out by Saturday was broadcast by loudspeakers on the city’s mosques.
An ISIL document reviewed by AFP said that there would be “nothing for them but the sword” if Christians didn’t adhere to the deadline.
The ISIL announcement also said that Christians could stay and pay a tax, often known as a “jizya,” though the exact amount was unspecified. A jizya is a historical policy of allowing non-Muslims to keep their own religion and their property if they pay a certain amount to Islamic rulers.
In centuries past, there have been examples of Christians paying the tax and living peacefully with Muslims. Recently however, it has often been exploited as a form of extortion against non-Muslims.
Many Christian families fleeing Mosul didn’t seem to put much trust in the promise of peace.
The aim of this documentary is to raise awareness.
WE ARE URGING ALL: PEOPLE TO SPEAK UP AND DO SOMETHING!!!
help world’s
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Fox’s Oliver North: ‘How Do You Spell Genocide? O-B-A-M-A’
Priests from Iraq and Syria: what’s happening in the Middle East is genocide
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How Is Sharia Law Dangerous for Western Society?
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485. Was Muhammad A Prophet Of Peace?
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Enforcing Sharia in Raqqa: The Islamic State (Part 3)
Shocking documentary about Islam – The world’s most dangerous cult! ISIS ISLAMIC STATE
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Sharia Law In America‽
David woods story of sharia law in America!
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Shariamerica: Islam, Obama, and the Establishment Clause
US caught working to impose Islamic Sharia Law
Irving, Texas says “take a hike” to foreign (i.e. Sharia) laws
Ann Coulter on Muslims
Ben Carson Does Not Believe a Muslim Should Be President Meet The Press
Republican presidential candidate Ben Carson said today he would not support a Muslim as president on meet the press The retired neurosurgeon also said Islam, as a religion, was inconsistent with the Constitution. Carson told NBC’s “Meet the Press” he believed a president’s faith should matter “depending on what that faith is.” “I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that,” Carson said. “If it’s [a president’s faith] inconsistent with the values and principles of America, then of course it should matter.” Carson, who has been near the top of several presidential polls, said he would consider voting for a Muslim in Congress “[depending] on who that Muslim is and what their policies are.” ABC News has reached out to Carson’s campaign for comment.
Ben Carson Does ‘Not Advocate’ A Muslim As President Sun, Sep 20 Republican presidential candidate Dr. Ben Carson tells Chuck Todd that the faith of a presidential candidate should matter to voters “if it is inconsistent with the values … of America.”
GOP candidate Carson: Muslim shouldn’t be elected president
Cruz says no religious test for the presidency
The Alex Jones Show (VIDEO Commercial Free) Sunday September 20 2015: Sharia vs. Constitution
Muslim-American group calls on Ben Carson to drop out
Important: 260 Million Unarmed Civilians Killed – Democide = Death By Government
Sharia Law and the U.S. Constitution
[Update I: I have streamlined the following post to be easily readable to the average layman, but informative enough for a lawyer or law professor to learn a bit more on the similarities and differences between Sharia and U.S. Law]
Is Sharia compatible with the U.S. Constitution?
The simple answer is of course “no”.
But lets take a look at some aspects of Sharia Law and where it may or may not conflict with the U.S. Constitution. (For disclosure I am not a lawyer nor a legal expert in Sharia or U.S. Law.)
First, what is Sharia?
Wikipedia states Sharia refers to the sacred law of Islam. All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails. Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.
In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).
The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.
The following is a truncated version with a couple of modifications (eliminating repetitious ibids and links) of multiple Wikipedia entries [with my comments]:
Legal and Court Proceedings:
Wikipedia states that Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law.
1. Sharia courts do not generally employ lawyers; plaintiffs and defendants represent themselves.
2. Trials are conducted solely by the judge, and there is no jury system.
3. There is no pre-trial discovery process, no cross-examination of witnesses, and no penalty of perjury (on the assumption that no witness would thus endanger his soul) Unlike common law, judges’ verdicts do not set binding precedents under the principle of stare decisis and unlike civil law, Sharia does not utilize formally codified statutes (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle).
4. Instead of precedents and codes, Sharia relies on medieval jurist’s manuals and collections of non-binding legal opinions, or fatwas, issued by religious scholars (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.
5. Sharia courts’ rules of evidence also maintain a distinctive custom of prioritizing oral testimony and excluding written and documentary evidence (including forensic and circumstantial evidence), on the basis that it could be tampered with or forged.
6. A confession, an oath, or the oral testimony of a witness are the only evidence admissible in a Sharia court, written evidence is only admissible with the attestations of multiple, witnesses deemed reliable by the judge, i.e. notaries.
7. Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character; testimony to establish the crime of adultery, or zina must be from four direct witnesses.
8. Forensic evidence (i.e. fingerprints, ballistics, blood samples, DNA etc.) and othercircumstantial 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. Testimony from women is given only half the weight of men [in most sources outside of Wikipedia Sharia states that a woman’s testimony only carries the weight of 1/4th of a man’s], and testimony from non-Muslims may be excluded altogether (if against a Muslim).
10. 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.
11. 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.
12. Sharia courts, with their tradition of pro se representation, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, juries and voir dire proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings. [that’s one way of putting it]
13. This can provide significant increases in speed and efficiency (at the cost of the safeguards provided in secular legal systems), and can be an advantage in jurisdictions where the general court system is slow or corrupt, and where few litigants can afford lawyers. (end Wikipedia)
This is not a concise review of the difference nor similarities between U.S. Law and Sharia. It is only meant to educate us on what Sharia law is in comparison to our legal system.
http://the-american-catholic.com/2010/06/25/sharia-law-and-the-u-s-constitution/
Sharia
Sharia applies in full, covering personal status issues as well as criminal proceedings
Sharia applies in personal status issues (such as marriage, divorce, inheritance, and child custody)
Regional variations in the application of Sharia
Members of the Organisation of Islamic Cooperation where Sharia plays no role in the judicial system
Sharia or sharia law (Arabic: شريعة (IPA: [ʃaˈriːʕa]), is the Islamic legal system[1] derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term sharia comes from the Arabic language term sharīʿah, which means a body of moral and religious law derived from religious prophecy, as opposed to human legislation.[2][3][4]
Sharia deals with many topics, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, everyday etiquette and fasting. Adherence to sharia has served as one of the distinguishing characteristics of the Muslim faith historically.[5] In its strictest and most historically coherent definition, sharia is considered in Islam as the infallible law of God.[6]
There are two primary sources of sharia: the Quran, and the Hadiths (opinions and life example of Muhammad).[7] For topics and issues not directly addressed in these primary sources, sharia is derived. The derivation differs between the various sects of Islam (Sunni and Shia), and various jurisprudence schools such as Hanafi, Maliki, Shafi’i, Hanbali andJafari.[8][9] The sharia in these schools is derived hierarchically using one or more of the following guidelines: Ijma(usually the consensus of Muhammad’s companions), Qiyas (analogy derived from the primary sources), Istihsan(ruling that serves the interest of Islam in the discretion of Islamic jurists) and Urf (customs).[8][10]
Sharia is a significant source of legislation in various Muslim countries. Some apply all or a majority of the sharia code, and these include Saudi Arabia, Sudan, Iran, Afghanistan, Pakistan, Brunei, United Arab Emirates, Qatar, Yemen andMauritania. In these countries, sharia prescribed punishments such as beheading, flogging and stoning continue to be practiced judicially or extra-judicially.[11][12] The introduction of sharia is a longstanding goal for Islamist movements globally, including in Western countries, but attempts to impose sharia have been accompanied by controversy,[13]violence,[14] and even warfare.[15] Most countries do not recognize sharia; however, some countries in Asia, Africa and Europe recognize parts of sharia and accept it as the law on divorce, inheritance and other personal affairs of their Islamic population.[16] In Britain, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, and this limited adoption of sharia is controversial.[17]
The concept of crime, judicial process, justice and punishment embodied in sharia is different from that of secular law.[18] The differences between sharia and secular laws have led to an ongoing controversy as to whether sharia is compatible with secular forms of government, human rights, freedom of thought, and women’s rights.[19][20][21]
Etymology and origins[edit]
Scholars describe the word sharia (/ʃɑːˈriːɑː/, also shari’a, šarīʿah) as an archaic Arabic word denoting “pathway to be followed” (analogous to the Hebrew termHalakhah [“The Way to Go”]),[22] or “path to the water hole”. The latter definition comes from the fact that the path to water is the whole way of life in an arid desert environment.[23]
The etymology of sharia as a “path” or “way” comes from the Quranic verse[Quran 45:18]: “Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not.”[22] Malik Ghulam Farid in his Dictionary of the Holy Quran, believes the “Way” in 45:18 (quoted above) derives from shara’a (as prf. 3rd. p.m. sing.), meaning “He ordained”. Other forms also appear: shara’u[Quran 45:13] as (prf. 3rd. p.m. plu.), “they decreed (a law)”[Quran 42:21]; and shir’atun (n.) meaning “spiritual law”[Quran 5:48].[24]
The Arabic word sharīʿa has origins in the concept of ‘religious law’; the word is commonly used by Arabic-speaking peoples of the Middle East and designates a prophetic religion in its totality. Thus, sharīʿat Mūsā means religious law of Moses (Judaism), sharīʿat al-Masīḥ means religious law of Christianity, sharīʿat al-Madjūs means religious law of Zoroastrianism.[3]
Sharia in the Islamic world is also known as Qānūn-e Islāmī (قانون اسلامی).[citation needed]
History
In Islam, the origin of sharia is the Qu’ran, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca).[26]
Sharia underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) for Sunni Muslims, and Imam Ali for Shia Muslims, during which time many questions were brought to the attention of Muhammad’s closest comrades for consultation.[27] During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.[27] Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.
The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[28] Progress in theory was started by 8th and 9th century Islamic scholars Abu Hanifa, Malik bin Anas, Al-Shafi’i, Ahmad ibn Hanbal and others.[8][29] Al-Shafi‘i is credited with deriving the theory of valid norms for sharia (uṣūl al-fiqh), arguing for a traditionalist, literal interpretation of Quran, Hadiths and methodology for law as revealed therein, to formulate sharia.[30][31]
A number of 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. These shaped different versions of sharia in different schools of Islamic jurisprudence, called fiqhs.[32][33][34]
The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions.[35] Under the Umayyads Islamic scholars were “sidelined” from administration of justice and attempts to systematically uphold and develope Islamic law would wait for Abbasid rule.[36] The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence.[37] The Abbasid made the institution of qadi independent from the government, but this separation wasn’t always respected.[38]
Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Quran or the sunnah. Imam Shafi’i declared: “atradition from the Prophet must be accepted as soon as it become known…If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favor of the tradition from the Prophet.” Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behavior for Muslims.[39]
In modern times, the Muslim community have divided points of view: secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines; traditionalists believe that the law of the state should be based on the traditional legal schools;[40] reformers believe that new Islamic legal theories can produce modernized Islamic law[41] and lead to acceptable opinions in areas such as women’s rights.[42] This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).
There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.[43][44]
Definitions and disagreements
Sharia, in its strictest definition, is a divine law, as expressed in the Quran and Muhammad’s example (often called the sunnah). As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the law.[45][46] Many scholars have pointed out that the sharia is not formally a code,[47] nor a well-defined set of rules.[48] The sharia is characterized as a discussion on the duties of Muslims[47] based on both the opinion of the Muslim community and extensive literature.[49] Hunt Janin and Andre Kahlmeyer thus conclude that the sharia is “long, diverse, and complicated.”[48]
From the 9th century onward, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.[50] 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.[51] 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.[52][53] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires as before.[54] 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.[55][56]
According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, “Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite.” Otto’s analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.[57]
Sources of sharia law
There are two sources of sharia (understood as the divine law): the Quran and the Sunnah. The Quran is viewed as the unalterable word of God. It is considered in Islam to be an infallible part of sharia. The Quran covers a host of topics including God, personal laws for Muslim men and Muslim women, laws on community life, laws on expected interaction of Muslims with non-Muslims, apostates and ex-Muslims, laws on finance, morals, eschatology, and others.[58][59] The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah’s importance as a source of sharia, is confirmed by several verses of the Quran (e.g.[Quran 33:21]).[60] The Sunnah is primarily contained in the hadith or reports of Muhammad’s sayings, his actions, his tacit approval of actions and his demeanor. While there is only one Quran, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasa’i, Ibn Majah. The collections by al-Bukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them.[61] For Shias, the Sunnah include life and sayings of The Twelve Imams.[62]
Quran versus Hadith
Muslims who reject the Hadith as a source of law, sometimes referred to as Quranists,[63][64] suggest that only laws derived exclusively from the Quran are valid.[65]They state that the hadiths in modern use are not explicitly mentioned in the Quran as a source of Islamic theology and practice, they were not recorded in written form until more than two centuries after the death of the prophet Muhammed.[63] They also state that the authenticity of the hadiths remains a question.[66][67]
The vast majority of Muslims, however, consider hadiths, which describe the words, conduct and example set by Muhammad during his life, as a source of law and religious authority second only to the Qur’an.[68] Similarly, most Islamic scholars believe both Quran and sahih hadiths to be a valid source of sharia, with Quranic verse 33.21, among others,[69][70] as justification for this belief.[64]
For vast majority of Muslims, sharia has historically been, and continues to be derived from both the Quran and the Hadiths.[64][68][70] The Sahih Hadiths of Sunni Muslims contain isnad, or a chain of guarantors reaching back to a companion of Muhammad who directly observed the words, conduct and example he set – thus providing the theological ground to consider the hadith to be a sound basis for sharia.[64][70] For Sunni Muslims, the musannaf in Sahih Bukhari and Sahih Muslim is most trusted and relied upon as source for Sunni Sharia.[71] Shia Muslims, however, do not consider the chain of transmitters of Sunni hadiths as reliable, given these transmitters belonged to Sunni side in Sunni-Shia civil wars that followed after Muhammad’s death.[72] Shia rely on their own chain of reliable guarantors, trusting compilations such as Kitab al-Kafi and Tahdhib al-Ahkam instead, and later hadiths (usually called akhbār by Shi’i).[73][74] The Shia version of hadiths contain the words, conduct and example set by Muhammad and Imams, which they consider as sinless, infallible and an essential source of sharia for Shi’ite Muslims.[72][75]However, in substance, the Shi’ite hadiths resemble the Sunni hadiths, with one difference – the Shia hadiths additionally include words and actions of its Imams (al-hadith al-walawi), the biological descendants of Muhammad, and these too are considered an important source for sharia by Shi’ites.[73][76]
Disagreements on Quran
Some scholars such as John Wansbrough have challenged the authenticity of the Quran and whether it was written in the time of Muhammad.[77] In contrast, Estelle Whelan has refuted Wansbrough presenting evidence such as the inscriptions on the Dome of the Rock.[78][79] John Burton states that medieval era Islamic texts claiming Quran was compiled after the death of the Prophet were forged to preserve the status-quo.[80] The final version of the Quran, states Burton, was compiled while the Prophet was still alive.[81] Most scholars accept that the Quran as is used for Sharia, was compiled into the final current form during the caliphate of Uthman.[82][83]
From the founding of Islam, the Muslim community has also debated the authenticity of compiled verses and the consistency within the Quran.[84][85] The inconsistencies in deriving sharia from the Quran, were recognized and formally complicated by verses 2.106 and 16.101 of the Quran, which are known as the “verses of abrogation (Naskh)”,[86]
The principle of abrogation has been historically accepted and applied by Islamic jurists on both the Quran and the Sunnah.[84][86] Sharia is thus determined through a chronological study of the primary sources, where older revelations are considered invalid and overruled by later revelations.[86][87] While an overwhelming majority of historical and modern Islamic scholars have accepted the principle of abrogation for the Quran and the Sunnah, some modern scholars disagree that the principle of abrogation necessarily applies to the Quran.[88]
Islamic jurisprudence (Fiqh)
Fiqh (school of Islamic jurisprudence) represents the process of deducing and applying sharia principles, as well as the collective body of specific laws deduced from sharia using the fiqh methodology.[8] While Quran and Hadith sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh covers all aspects of law, including religious, civil, political, constitutional and procedural law.[89] Fiqh deploys the following to create Islamic laws:[8]
If the above two sources do not provide guidance for an issue, then different fiqhs deploy the following in a hierarchical way:[8]
Map of the Muslim world with the main schools of Islamic law (madhhab)
A Madhhab is a Muslim school of law that follows a fiqh (school of religious jurisprudence). In the first 150 years of Islam, there were many madhhab. Several of the Sahābah, or contemporary “companions” of Muhammad, are credited with founding their own. In the Sunni sect of Islam, the Islamic jurisprudence schools of Medina (Al-Hijaz, now in Saudi Arabia) created the Maliki madhhab, while those in Kufa (now in Iraq) created the Hanafimadhhab.[93] Abu al-Shafi’i, who started as a student of Maliki school of Islamic law, and later was influenced by Hanafi school of Islamic law, disagreed with some of the discretion these schools gave to jurists, and founded the more conservative Shafi’i madhhab, which spread from jurisprudence schools in Baghdad (Iraq) and Cairo (Egypt).[94] Ahmad ibn Hanbal, a student of al-Shafi’i, went further in his criticism of Maliki and Hanafi fiqhs, criticizing the abuse and corruption of sharia from jurist discretion and consensus of later generation Muslims, and he founded the more strict, traditionalist Hanbali school of Islamic law.[95] Other schools such as the Jaririwere established later, which eventually died out.
Sunni sect of Islam has four major surviving schools of sharia: Hanafi, Maliki, Shafi’i, Hanbali; one minor school is named Ẓāhirī. Shii sect of Islam has three: Ja’fari(major), Zaydi and Ismaili.[96][97][98] There are other minority fiqhs as well, such as the Ibadi school of Khawarij sect, and those of Sufi and Ahmadi sects.[89][99] All Sunni and Shia schools of sharia rely first on the Quran and the sayings/practices of Muhammad in the Sunnah. Their differences lie in the procedure each uses to create Islam-compliant laws when those two sources do not provide guidance on a topic.[100] The Salafi movement creates sharia based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims.[101]
Hanafi-based sharia spread with the patronage and military expansions led by Turkic Sultans and Ottoman Empire in West Asia, Southeast Europe, Central Asia and South Asia.[102][103] It is currently the largest madhhab of Sunni Muslims.[104] Maliki-based sharia is predominantly found in West Africa, North Africa and parts of Arabia.[104] Shafii-based sharia spread with patronage and military expansions led by maritime Sultans, and is mostly found in coastal regions of East Africa, Arabia, South Asia, Southeast Asia and islands in the Indian ocean.[105] The Hanbali-based sharia prevails in the smallest Sunni madhhab, predominantly found in the Arabian peninsula.[104] The Shia Jafari-based sharia is mostly found in Persian region and parts of West Asia and South Asia.
Along with interpretation, each fiqh classifies its interpretation of sharia into one of the following five categories: fard (obligatory), mustahabb (recommended),mubah (neutral), makruh (discouraged), and haraam (forbidden). A Muslim is expected to adhere to that tenet of sharia accordingly.[106]
The recommended, neutral and discouraged categories are drawn largely from accounts of the life of Muhammad. To say a behaviour is sunnah is to say it is recommended as an example of the life and sayings of Muhammad. These categories form the basis for proper behaviour in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.[106]
Areas of Islamic law
(fiqh)
The areas of Islamic law include:
Shari’ah law has been grouped in different ways, such as:[110][111] Family relations, Crime and punishment, Inheritance and disposal of property, The economic system, External and other relations.
“Reliance of the Traveller“, an English translation of a fourteenth-century CE reference on the Shafi’i school of fiqh written by Ahmad ibn Naqib al-Misri, organizes sharia law into the following topics: Purification, prayer, funeral prayer, taxes, fasting, pilgrimage, trade, inheritance, marriage, divorce and justice.
In some areas, there are substantial differences in the law between different schools of fiqh, countries, cultures and schools of thought.
Disagreement on the objectives of Islamic law
A number of scholars have advanced “objectives” (مقاصد maqaṣid al-Shariah also “goals” or “purposes”) they believe the Sharia is intended to achieve. Abu Hamid Al-Ghazali argued that they were the preservation of Islamic religion, and in the temporal world the protection of life, progeny, intellect and wealth of Muslims.[112][113]Yazid et al summarize sharia’s objective to be recognize the limitations of reason, and complement the role of reason with revelation.[114] They state that objective of sharia in Islamic finance is to provide rules and regulations from the Quran and Sunnah.[114]
Jan Otto writes that moderate Muslims and puritan Muslims differ in their interpretation of the objectives of sharia.[115] The moderate Muslims consider sharia to be a flexible code of law, where technicalities of its wording cannot subvert sharia’s objectives to “help Muslims in their quest for submission, humility, gratitude before God, and a quest for Godliness”.[115] In contrast, according to Otto, puritan Muslims believe that sharia is a strict, complete and exact set of rules that one must submit to, by strict compliance, because it is only “through meticulous obedience, Muslims will avoid punishment of God in after-life and will enter heaven” which is the ultimate objective, and it does not matter if some sharia “law is harsh or that its application results in social suffering, this perception is considered delusional”.[115]
Application
Application by country
Use of Sharia by country:
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.[116][117] Most use sharia for personal law (marriage, divorce, domestic violence, child support, family law, inheritance and such matters).[118][119] Elements of sharia are present, to varying extents, in the criminal justice system of many Muslim-majority countries.[12]Saudi Arabia, Yemen, Brunei, Qatar, United Arab Emirates, Iraq, Iran, Pakistan, Afghanistan, Sudan andMauritania apply the code predominantly or entirely.[12][120]
Most Muslim-majority countries with sharia-prescribed hudud punishments in their legal code, do not prescribe it routinely and use other punishments instead.[116][121] The harshest sharia penalties such as stoning, beheadingand the death penalty are enforced with varying levels of consistency.[122]
Since 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.[123] Some moderates and liberal scholars within these Muslim countries have argued for limited expansion of sharia.[124]
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.[125][126] 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.”[127][128]
Enforcement
Sharia is enforced in Islamic nations in a number of ways, including mutaween and hisbah.[citation needed]
The mutaween (Arabic: المطوعين، مطوعية muṭawwiʿīn, muṭawwiʿiyyah)[129] are the government-authorized or government-recognized religious police (or clericalpolice) of Saudi Arabia. Elsewhere, enforcement of Islamic values in accordance with sharia is the responsibility of Polisi Perda Syariah Islam in Aceh province ofIndonesia,[130] Committee for the Propagation of Virtue and the Prevention of Vice (Gaza Strip) in parts of Palestine, and Basiji Force in Iran.[131]
Official from the Department ofPropagation of Virtue and the Prevention of Vice, beating a woman inAfghanistan for violating local interpretation of sharia.[132][133]
Hisbah (Arabic: حسبة ḥisb(ah), or hisba) is a historic Islamic doctrine which means “accountability”.[134] 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.[135][136][137] Some Salafist suggest that enforcement of sharia under the Hisbah doctrine is the sacred duty of all Muslims, not just rulers.[135] The doctrine of Hisbah in Islam has traditionally allowed any Muslim to accuse another Muslim, ex-Muslim or non-Muslim for beliefs or behavior that may harm Islamic society. This principle has been used in countries such as Egypt, Pakistan and others to bring blasphemy charges against apostates.[138]For example, in Egypt, sharia was enforced on the Muslim scholar Nasr Abu Zayd, through the doctrine of Hasbah, when he committed apostasy.[139][140] Similarly, in Nigeria, after twelve northern Muslim-majority states such as Kano adopted sharia-based penal code between 1999 and 2000, hisbah became the allowed method of sharia enforcement, where all Muslim citizens could police compliance of moral order based on sharia.[141] In Aceh province of Indonesia, Islamic vigilante activists have invoked Hasbah doctrine to enforce sharia on fellow Muslims as well as demanding non-Muslims to respect sharia.[142]Hisbah has been used in many Muslim majority countries, from Morocco to Egypt and in West Asia to enforce sharia restrictions on blasphemy and criticism of Islam over internet and social media.[143][144][145]
Legal and court proceedings
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 discoveryprocess, and no cross-examination of witnesses. Unlike common law, judges’ verdicts do not set binding precedents[146][147] under the principle of stare decisis,[148]and unlike civil law, sharia is left to the interpretation in each case and has no formally codified universal statutes.[149]
The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.[150] Witnesses, in a sharia court system, must be faithful, that is Muslim.[151] 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.[152][153] In civil cases, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.[154][155] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of sharia, such as those found in Hanbali madhhab.[151]
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.[156][157][158] 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.[159] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and othercircumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.[160][161]
Muslim jurists have debated whether and when coerced confession and coerced witnesses are acceptable. The majority opinion of jurists in the Hanafi madhhab, for example, ruled that torture to get evidence is acceptable and such evidence is valid, but a 17th-century text by Hanafi jurist Muhammad Shaykhzade argued that coerced confession should be invalid; Shaykhzade acknowledged that beating to get confession has been authorized in fatwas by many Islamic jurists.[162]
Quran recommends written contracts in the case of debt-related transactions, and oral contracts for commercial and other civil contracts.[155][163] 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.[164] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.[165]
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.[165][166]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.[166][167]
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.[168] 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.”[169] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[169] instead oaths are a solemn procedure performed as a final part of the evidence process.
Sharia courts treat women and men as unequal, with Muslim woman’s life and blood-money compensation sentence (Diyya) as half as that of a Muslim man’s life.[170][171] Sharia also treats Muslims and non-Muslims as unequal in the sentencing process.[172] Human Rights Watch and United States’ Religious Freedom Report note that in sharia courts of Saudi Arabia, “The calculation of accidental death or injury compensation is discriminatory. In the event a court renders a judgment in favor of a plaintiff who is a Jewish or Christian male, the plaintiff is only entitled to receive 50 percent of the compensation a Muslim male would receive; all other non-Muslims [Buddhists, Hindus, Jains, Atheists] are only entitled to receive one-sixteenth of the amount a male Muslim would receive”.[173][174][175]
Saudi Arabia follows Hanbali sharia, whose historic jurisprudence texts considered a Christian or Jew life as half the worth of a Muslim. Jurists of other schools of law in Islam have ruled differently. For example, Shafi’i sharia considers a Christian or Jew life as a third the worth of a Muslim, and Maliki‘s sharia considers it worth half.[172] The legal schools of Hanafi, Maliki and Shafi’i Sunni Islam as well as those of twelver Shia Islam have considered the life of polytheists and atheists as one-fifteenth the value of a Muslim during sentencing.[172]
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 support for making sharia the official law of the land is very high in many Muslim-majority countries: 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%).[176] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less then 50%: Kosovo (20%), Albania (12%), Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Turkey (12%), Azerbaijan (8%).[176]
In Muslim-majority countries and among Muslims who say sharia should be the law of the land, a percentage between 74% (Egypt) and 19% (Kazakhstan) want sharia law to apply to non-Muslims as well.[177]
A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed wanted sharia in British law.[178]
Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia not just within their own borders; their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.[179] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey’s secular government.[179] These movements can be considered neo-Sharism.[180]
Extremism
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.[181][182]
The sharia basis of arguments of those advocating terrorism, however, remain controversial. Some scholars state that Islamic law prohibits the killing of civilian non-combatants; in contrast, others interpret Islamic law differently, concluding that all means are legitimate to reach their aims, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians, in order to universalize Islam.[181] Islam, in these interpretations, “does not make target differences between militaries and civilians but between Muslims and unbelievers. Therefore it is legitimated (sic) to spill civilians’ blood”.[181] Other scholars of Islam, interpret sharia differently, stating, according to Engeland-Nourai, “attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment […]. It’s not courageous to attack innocent children, women and civilians. It is courageous to protect freedom; it is courageous to defend one and not to attack”.[181][183]
Criticism
A protester opposing the Park51project, carries an anti-sharia sign.
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”.[184][185]Other scholars say sharia is not compatible with democracy, particularly where the country’s constitution demands separation of religion and the democratic state.[186][187]
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.[188] 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.[189][190]
On appeal by Refah the European Court of Human Rights determined that “sharia is incompatible with the fundamental principles of democracy”.[191][192][193] 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”.[194]
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.[195] 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.[196][197] 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][199]
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“.[200]
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, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam.”[201]
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).[202] Bassam Tibi states that sharia framework and human rights are incompatible.[203] Abdel al-Hakeem Carney, in contrast, states that sharia is misunderstood from a failure to distinguish sharia from siyasah (politics).[204]
Freedom of speech
Blasphemy in Islam is any form of cursing, questioning or annoying God, Muhammad or anything considered sacred in Islam.[205][206][207] 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.[205][208][209] In some cases, sharia allows non-Muslims to escape death by converting and becoming a devout follower of Islam.[210]
Blasphemy, as interpreted under sharia, is controversial. Muslim nations have petitioned the United Nations to limit “freedom of speech” because “unrestricted and disrespectful opinion against Islam creates hatred”.[211] Other nations, in contrast, consider blasphemy laws as violation of “freedom of speech”,[212] 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.[213][214]
Freedom of thought, conscience and religion
According to the United Nations’ Universal Declaration of Human Rights,[215] 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[19][216][217] of Islamic law, the applicable rules for religious conversion under sharia are as follows:
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.[219][220] 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.[221][222][223][224] 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).[225][226] 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 Shari’a verse teaches, “there is no compulsion in religion.”[227] Other scholars claim sharia recognizes only one proper religion, considers apostasy as sin punishable with death, and members of other religions as kafir (infidel);[228] or hold that Shari’a demands that all apostates and kafir must be put to death, enslaved or be ransomed.[229][230][231][232] Yet other scholars suggest that Shari’a has become a product of human interpretation and inevitably leads to disagreements about the “precise contents of the Shari’a.” In the end, then, what is being applied is not sharia, but what a particular group of clerics and government decide is sharia. It is these differing interpretations of Shari’a that explain why many Islamic countries have laws that restrict and criminalize apostasy, proselytism and their citizens’ freedom of conscience and religion.[233][234]
LGBT rights
Homosexual intercourse is illegal under sharia law, though the prescribed penalties differ from one school of jurisprudence to another. For example, only a few Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,[235] Saudi Arabia,[236] and Somalia.[237] In other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh,[238] same-sex sexual acts are illegal,[239] and LGBT people regularly face violence and discrimination.[240]
Women
Domestic violence
Many scholars[20][241] claim Shari’a law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.[242] Other scholars claim wife beating, for nashizah, is not consistent with modern perspectives of the Quran.[243]
One of the verses of the Quran relating to permissibility of domestic violence is Surah 4:34.[244][245] In deference to Surah 4:34, many nations with Shari’a law have refused to consider or prosecute cases of domestic abuse.[246][247][248][249] Shari’a has been criticized for ignoring women’s rights in domestic abuse cases.[250][251][252][253] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify Shari’a-inspired laws to improve women’s rights in Islamic nations, including women’s rights in domestic abuse cases.[254][255][256][257]
Personal status laws and child marriag
Shari’a is the basis for personal status laws in most Islamic majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report concludes that Shari’a law provisions are discriminatory against women from a human rights perspective. In legal proceedings under Shari’a law, a woman’s testimony is worth half of a man’s before a court.[154]
Except for Iran, Lebanon and Bahrain which allow child marriages, the civil code in Islamic majority countries do not allow child marriage of girls. However, with Shari’a personal status laws, Shari’a courts in all these nations have the power to override the civil code. The religious courts permit girls less than 18 years old to marry. As of 2011, child marriages are common in a few Middle Eastern countries, accounting for 1 in 6 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.[258][259]
Rape is considered a crime in all countries, but Shari’a courts in Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia in some cases allow a rapist to escape punishment by marrying his victim, while in other cases the victim who complains is often prosecuted with the crime of Zina (adultery).[154][260][261]
Women’s right to property and consent
Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran.[262] A woman’s inheritance is unequal and less than a man’s, and dependent on many factors.[Quran 4:12][263] For instance, a daughter’s inheritance is usually half that of her brother’s.[Quran 4:11][263]
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, that Western legal systems did not grant to women.[264][265] 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.[266][267] 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.[266][268] Under Islamic law, Muslim men could have sexual relations with female captives and slaves without her consent.[269][270]
Slave women under sharia did not have a right to own property, right to free movement or right to consent.[271][272] Sharia, in Islam’s history, provided religious foundation for enslaving non-Muslim women (and men), as well as encouraged slave’s manumission. However, manumission required that the non-Muslim slave first convert to Islam.[273][274] Non-Muslim slave women who bore children to their Muslim masters became legally free upon her master’s death, and her children were presumed to be Muslims as their father, in Africa,[273] and elsewhere.[275]
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 Quran, hadiths and their faithful interpretation as sharia by Islamic jurists.[270][276]
Parallels with Western legal systems
Elements of Islamic law have influenced western legal systems. As example, the influence of Islamic influence on the development of an international law of the sea” can be discerned alongside that of the Roman influence.[277]
Makdisi states Islamic law also influenced the legal scholastic system of the West.[278] The study of legal text and degrees have parallels between Islamic studies of sharia and the Western system of legal studies. For example, the status of faqih (meaning “master of law“), mufti (meaning “professor of legal opinions“) andmudarris (meaning “teacher”), which were later translated into Latin as magister, professor and doctor respectively.[278]
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.[279] Interest prohibitions also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.[280] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.[281]
See also
Further reading
External links
https://en.wikipedia.org/wiki/Sharia
Ben Carson says no Muslim should ever become US president
The Republican presidential candidate Ben Carson has said no Muslim should be president of the United States of America.
In an interview with NBC for broadcast on Sunday morning, the retired neurosurgeon said: “I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that.”
Carson’s discussion with Meet the Press host Chuck Todd centered around controversy that arose this week when Donald Trump – the real-estate mogul keeping Carson in second place in the polls – failed to correct an audience member at a New Hampshire campaign rally who said President Obama was a Muslim.
The audience member also appeared to advocate the forcible removal of Muslims from the US.
On Saturday, in a series of tweets on the subject, Trump defended himself and said: “Am I morally obligated to defend the president every time somebody says something bad or controversial about him? I don’t think so!”
Trump: I was not obligated to correct questioner who called Obama Muslim
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He also addressed the issue in an appearance before an evangelical audience in Iowa, at which he brandished a Bible and said: “You see, I’m better than you thought.”
In such circles, Trump has lost some support to Carson.
In his NBC interview, Carson was asked: “So do you believe that Islam is consistent with the constitution?”
“No,” he said, “I don’t, I do not.”
Article VI of the US constitution states: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
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The first amendment to the constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
Carson, a Christian, is a member of the Seventh Day Adventist church. In October, he will publish a new book, written with his wife Candy Carson and entitled A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties.
In publicity material issued by Penguin Random House, Carson is quoted as saying: “I believe that making a difference starts with understanding our amazing founding document, the US constitution.
“And as someone who has performed brain surgery thousands of times, I can assure you that the constitution isn’t brain surgery.
He adds that he and his wife wrote the book to “help defend” the constitution “from those who misinterpret and undermine it”.
Carson did have a constituency to speak to, however. In a recent poll, 38% of voters said they would not vote for a Muslim president.
Quiet rise of Ben Carson is shaking up Republican presidential race
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The Ohio governor, John Kasich, who is polling an average of 2.5%, enough for 10th place out of 16, was also asked by NBC if he “would ever have a problem with a Muslim becoming president”.
Kasich, one of the more moderate candidates in the GOP field, also had to field a question about whether he was a Republican at all. He did not say he would have a problem with a Muslim president, but nor did he dismiss the question.
“You know, I mean, that’s such a hypothetical question,” Kasich said. “The answer is, at the end of the day, you’ve got to go through the rigours, and people will look at everything.
“But, for me, the most important thing about being president is you have leadership skills, you know what you’re doing, and you can help fix this country and raise this country. Those are the qualifications that matter to me.”
Carson was also asked if he would consider voting for a Muslim candidate for Congress.
He said: “Congress is a different story, but it depends on who that Muslim is and what their policies are, just as it depends on what anybody else says, you know.”
Two members of Congress, both Democrats, are Muslim: Keith Ellison of Minnesota was elected to the House of Representatives in 2007 and André Carson of Indiana followed in 2008.
Every American should be disturbed … national figures are engaging in and tolerating blatant acts of religious bigotry
Representative Keith Ellison
This week, Ellison carried a clock around Congress to show support for Ahmed Mohamed, a 14-year-old boy who was arrested at his school in Irving, Texas, over suspicions a homemade clock was in fact a bomb.
On Sunday Ellison, the first Muslim ever elected to Congress, released a statement in answer to Carson’s comments.
“For Ben Carson, Donald Trump, or any other Republican politician to suggest that someone of any faith is unfit for office is out of touch with who we are as a people,” he said.
“It’s unimaginable that the leading GOP presidential candidates are resorting to fear mongering to benefit their campaigns, and every American should be disturbed that these national figures are engaging in and tolerating blatant acts of religious bigotry.”
Ahmed Mohamed is tired, excited to meet Obama – and wants his clock back
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According to the Pew Research Center, the 114th Congress contains 491 Christians, of which 306 are Protestant, split between 13 sects though without any declared Anabaptists, Quakers or Pietists.
Another 164 members of Congress are Catholic, while 16 are Mormon and five Orthodox Christian. As well as the two Muslims there are 28 Jewish and two Buddhist members of Congress; there is one Hindu member, one Unitarian Universalist and one “unaffiliated”.
Nine members of Congress either told the Pew researchers they didn’t know what religion they were, or refused to answer the question.
On Meet the Press, Carson continued: “And, you know, if there’s somebody who’s of any faith, but they say things, and their life has been consistent with things that will elevate this nation and make it possible for everybody to succeed, and bring peace and harmony, then I’m with them.”
Asked if he believed President Obama was both born in the US – another issue raised at the Trump rally on Thursday and not rebutted by the candidate – and a Christian, Carson said: “I believe that he is. I have no reason to doubt what he says.”
http://www.theguardian.com/us-news/2015/sep/20/ben-carson-no-muslim-us-president-trump-obama
Carson says he does not agree with a Muslim being elected president
Republican presidential candidate Ben Carson suggested Sunday that a Muslim should not be president, extending the new and unexpected religion debate on the 2016 campaign trail.
“I would not advocate that we put a Muslim in charge of this nation,” Carson, a Christian and retired neurosurgeon, said on NBC’s “Meet the Press.” “I absolutely would not agree with that.”
Carson, a top-tier 2016 candidate and popular among the GOP’s evangelical wing, made the statement after fellow Republican candidate Donald Trump was addressed by a man during a rally Thursday in New Hampshire who said President Obama is a Muslim.
“We have a problem in this country,” the unidentified man said. “It’s called Muslim. … You know our current president is one.”
Obama says he is a Christian. But Trump has declined to address the issue, saying he is not “morally obligated” to set straight the record.
Carson also described the Islamic faith as inconsistent with the Constitution. However, he did not specify in what way Islam ran counter to constitutional principles.
Carson said he believes Obama is a Christian and has “no reason to doubt what he says.”
He also said he would consider voting for a Muslim running for Congress, depending on “who that Muslim is and what their policies are.”
Carson also made a distinction when it came to electing Muslims to Congress, calling it a “different story” from the presidency that “depends on who that Muslim is and what their policies are, just as it depends on what anybody else says.”
Congress has two Muslim members, Democratic Reps. Keith Ellison of Minnesota and Andre Carson of Indiana.
“If there’s somebody who’s of any faith, but they say things, and their life has been consistent with things that will elevate this nation and make it possible for everybody to succeed, and bring peace and harmony, then I’m with them,” Carson said.
Trump on Sunday told ABC’s “This Week” that he doesn’t talk about other people’s faith and that Obama is “very capable of defending himself.”
He also said the politically correct statement is that Muslims are not a problem in the United States but the reality is that “some” associated with terrorism pose a worldwide threat.
“We can say … everything’s wonderful,” Trump said. “But certainly it is a problem. … if I want to say no, not at all, people would laugh at me.”
Fellow GOP contender and Florida Sen. Marco Rubio told ABC about the Muslim debate: “This has nothing to do with the future of our country. These issues have been discussed ad nauseam over the last few years. It’s a big waste of time. Barack Obama will not be president in a year and a half. It’s time to start talking about the future of America and the people that are at home.”
Carson’s comments drew strong criticism from the country’s largest Muslim civil rights and advocacy organization, the Council on American-Islamic Relations.
“To me this really means he is not qualified to be president of the United States,” said the group’s spokesman, Ibrahim Hooper. “You cannot hold these kinds of views and at the same time say you will represent all Americans, of all faiths and backgrounds.”
Hooper said the Constitution expressly forbids religious tests for those seeking public office and called for the repudiation of “these un-American comments.”
In a separate appearance on NBC, fellow 2016 GOP candidate Ohio Gov. John Kasich, was asked whether he would have a problem with a Muslim in the White House.
“The answer is, at the end of the day, you’ve got to go through the rigors, and people will look at everything. But, for me, the most important thing about being president is you have leadership skills, you know what you’re doing and you can help fix this country and raise this country. Those are the qualifications that matter to me.”
Texas Sen. Ted Cruz, who taped Sunday an episode of Iowa Press, an Iowa Public Television program, was asked if he agreed with Carson’s statements on Muslims being president. “The Constitution specifies that there shall be no religious test for public office, and I am a constitutionalist,” Cruz said.
Democratic National Committee Chairwoman Florida Rep. Debbie Wasserman Schultz said, “It’s hard to understand what’s so difficult about supporting an American citizen’s right to run for president.
“But unsurprisingly, this left Republicans scratching their heads. Of course a Muslim, or any other American citizen, can run for president, end of story.”
http://www.foxnews.com/politics/2015/09/21/carson-suggests-muslim-should-not-be-elected-president/
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