Sharia: Islamic Law

Reference: Wikipedia

Sharia is the moral code and religious law of Islam. Sharia deals with many topics addressed by secular law, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. Though interpretations of sharia vary between cultures, in its strictest definition it is considered the infallible law of God—as opposed to the human interpretation of the laws (fiqh).

There are two primary sources of sharia law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Where it has official status, sharia is interpreted by Islamic judges (qadis) with varying responsibilities for the religious leaders (imams). For questions not directly addressed in the primary sources, the application of sharia is extended through consensus of the religious scholars (ulama) thought to embody the consensus of the Muslim Community (ijma). Islamic jurisprudence will also sometimes incorporate analogies from the Quran and Sunnah through qiyas, though Shia jurists prefer reasoning (‘aql) to analogy.

The reintroduction of sharia is a longstanding goal for Islamist movements in Muslim countries, but attempts to impose sharia have been accompanied by controversy,[2][3][4]violence,[5][6][7][8][9][10] and even warfare such as the Second Sudanese Civil War.[11][12][13][14] Some in Israel and other countries in Asia have maintained institutional recognition of sharia, and use it to adjudicate their personal and community affairs. In Britain, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes.

Topics of Islamic Law

Shari’ah law can be organized in different ways and Professor Abdur Rahman I. Doi, author of Shari’ah: The Islamic Law[69][70] has divided Shari’ah content into five main branches:

  1. Family relations
  2. Crime and punishment
  3. Inheritance and disposal of property
  4. The economic system
  5. External and other relations

Purification

In Islam, purification has a spiritual dimension and a physical one. Muslims believe that certain human activities and contact with impure animals and substances cause impurity. Classic Islamic law details how to recognize impurity, and how to remedy it. Muslims use water for purification in most circumstances, although earth can also be used under certain conditions. Before prayer or other religious rituals, Muslims must clean themselves in a prescribed manner. The manner of cleansing, either “wudhu” or “ghusl,” depend on the circumstances. Muslims’ cleaning of dishes, clothing and homes are all done in accordance with stated laws.[71][72]

Prayer

Muslims are enjoined to pray five times each day, with certain exceptions. These obligatory prayers, salat, are performed during prescribed periods of the day, and most can be performed either in groups or by oneself; although it is recommended to pray in a group. There are also optional prayers which can be performed, as well as special prayers for certain seasons, days and events. Muslims must turn to face the Kaaba in Mecca when they pray, and they must be purified in order for their prayers to be accepted. Personal, informal prayer and invocation is practiced as well. Classic Islamic law details many aspects of the act of prayer, including who can pray, when to pray, how to pray, and where to pray.[73][74]

Funeral prayer

Muslims are encouraged to visit those among them who are sick and dying. Dying Muslims are reminded of God’s mercy, and the value of prayer, by those who visit them. In turn, the visitors are reminded of their mortality, and the transient nature of life. Upon death, the Muslim will be washed and shrouded in clean, white cloth. A special prayer, Janazah, is performed for the deceased, preferably by the assembled Muslim community. The body is taken to a place which has ground set aside for the burial of Muslims. The grave is dug perpendicular to the direction of Mecca, and the body is lowered into the grave to rest on its side, with the face turned towards Mecca. Classic Islamic law details visitation of the ill, preparation of the dead for burial, the funeral prayer and the manner in which the Muslim is buried.[75]

Alms

All Muslims who live above the subsistence level must pay an annual alms, known as zakat. In the modern sense, this would be Islam’s equivalent to US Social Security or UK National Insurance. This is not charity, but rather an obligation owed by the eligible Muslim to the poor of the community. The amount is calculated based on the wealth of the Muslim. There is no fixed rate stated in Quran; but the generally practiced rate is 2.5 percent. Eligibility and total payable varies; depending on the type and quantity of wealth being assessed.[76] If the Government wishes to create a comprehensive and robust welfare state, the rate can be increased. Wealth includes savings, jewelry and land. Classic Islamic law details the tax, how it is assessed, its collection, and its distribution.[77][78]

Fasting

During the Islamic month of Ramadan, Muslims abstain from food and drinks between dawn and sunset. Exceptions to this obligation are made for children who are pre-pubescent, the infirm, travelers, and pregnant or menstruating women.[79] During Ramadan, the daylight hours will often begin and end with a large meal. After dinner, many Muslims participate in special communal prayers held during Ramadan. The end of Ramadan fasting is celebrated with special prayers, gatherings of family and friends, and specially prepared meals. Muslims may also fast on other special days of the year, and to make up for missed days of fasting. Classic Islamic law details the exact definition of the fast, the times of fasting, how a fast may be broken, who must fast, and permitted exceptions to the fast.[80][81]

Pilgrimage

At least once in each Muslim’s lifetime, they must attempt a visit to the Holy Places of Islam located in Mecca, Saudi Arabia. The focus of this journey is the Kaaba, a small rectangular building around which a huge mosque has been built. This pilgrimage, known as the Hajj, begins two months after Ramadan each year. Dressed in symbolically simple clothing, Muslim pilgrims circle the Kaaba seven times, often followed by a drink from a special stream. Next, a symbolic search for water is performed by travelling back and forth between two nearby peaks. On the eighth day of the month, the pilgrims travel to Mina in the desert and spend the night in tents. The following day, over two million Muslims gather on the slopes of Mount Arafat, where the afternoon is spent in prayer. The Feast of Sacrifice, celebrated by Muslims worldwide, is performed by pilgrims in Mina the next day, and includes the slaughter of an animal. Finally, the pilgrims perform a ritual Stoning of the Devil by tossing pebbles at three pillars. Classic Islamic law details the manner in which the pilgrim dresses, behaves, arrives, departs and performs each of these rituals.[82][83]

Trade

Islamic law recognizes private and community property, as well as overlapping forms of entitlement for charitable purposes, known as “waqf” or trusts. Under sharia law, however, ownership of all property ultimately rests with God; while individual property rights are upheld, there is a corresponding obligation to share, particularly with those in need.[84] The laws of contract and obligation are also formed around this egalitarian Quranic requirement, prohibiting unequal exchanges or unfair advantage in trade. On this basis, the charging of interest on loans is prohibited, as are other transactions in which risks are borne disproportionately to the potential returns between parties to a transaction. The limits on personal liability afforded by incorporation are seen as a form of usury in this sense, as is insurance. All these inequities in risk and reward between parties to a transaction, known collectively as riba, are prohibited.[85] For this reason, Islamic banking and financing are partnerships between customers and institutions, where risk and reward are distributed equitably. Partnerships, rather than corporations, are the key concept in collective Islamic business. Financing and investments are accomplished in this manner, as purchases and resales, with equity shifting over time between the institution and the client as payments are made or returns are recognized. Conversely, no individual is shielded from the consequences of poor judgement or bad timing.[86] The Islamic financial and investment models have taken root in the West and begun to flourish.[87][88] Classic Islamic law details the manner of contracting, the types of transactions, the assignment of liability and reward, and the responsibilities of the parties in Islamic trade.[89]

Inheritance

The rules of inheritance under sharia law are intricate, and a female’s portion is generally half the amount a male would receive under the same circumstances.[90] Up to one third of a person’s property may be distributed as bequests, or wasiyya, upon their death. After debts are settled, the remainder of the estate will be divided among the family of the deceased according to the rules of inheritance, or irth.[91] In Islamic societies, inherited wealth and property do not easily accumulate to, or remain in, certain families. Large concentrations of property will be divided into smaller portions over time among male inheritors. Property will tend to flow to other families as female inheritors take their shares into their marriages.[92] Classic Islamic law details the division of property, the shares family members are entitled to, adjustments and redistributions in the shares, orders of precedence among inheritors, and substitution among inheritors.[93]

Marriage

The laws governing Islamic marriage vary substantially between sects, schools, states and cultures. The following outline is general in nature.

Marriage is mentioned in the Quran: nikah. It aims to be permanent, but can be terminated by the husband in the talaq process, or by the wife seeking divorce using khul’.

In nikah the couples inherit from each other. A dowry known as mahr is given to the bride, a legal contract is signed when entering the marriage, and the husband must pay for the wife’s expenses. For the contract to be valid there must be two witnesses under Sunni jurisprudence. There is no witness requirement for Shia contracts. In Sunni jurisprudence, the contract is void if there is a determined divorce date in the nikah, whereas, in Shia jurisprudence, nikah contracts with determined divorce dates are transformed into nikah mut’ah.

Under Shia jurisprudence, nikah mut’ah is the second form of marriage. It is Haraam (“sinful”) according to Sunni Muslim scholars. It is a fixed-term marriage, which is a marriage with a preset duration, after which the marriage is automatically dissolved. Traditionally the couple does not inherit from each other, the man usually is not responsible for the economic welfare of the woman, and she usually may leave her home at her own discretion. Nikah mut’ah does not count towards the maximum of four wives the Quran allows to Muslim men. The woman is still given her mahr dowry, and the woman must still observe the iddah, a period of five months at the end of the marriage where she is not permitted to remarry in the case she may have become pregnant before the divorce took place. This maintains the proper lineage of children. There is controversy about the Islamic legality of this type of marriage since the Prophet Muhammad is said by Sunnis to have prohibited the practice after having temporarily allowed it.

A third type of marriage contract, known as misyar, is emerging in Sunni Islam. This marriage is not for a fixed period of time like nikah mut’ah, but is similar in other respects including lack of inheritance, lack of financial responsibility and freedom of movement on the part of the wife. In misyar marriage, the couple need not cohabit. There is controversy regarding this form of marriage and most Sunni scholars disagree with the basis of misyar marriage. Muslims do, on occasion, marry according to urf, or local custom, without following the requirements set forth in sharia law. This may be done for various reasons, such as an inability of the couple to obtain permission from the bride’s guardian. In these cases, they may find their marriage to be unrecognized at a later point, and have difficulty availing themselves of legal remedies under sharia.

Requirements for Islamic Marriages:

  • The man who is not currently a fornicator may marry only a woman who is not currently a fornicatress or a chaste woman, a Muslim one or one from the people of the Book (Jews and Christians).
  • The woman who is not currently a fornicatress may marry only a man who is not currently a fornicator.
  • The fornicator may marry only a fornicatress.
  • The Muslim woman may marry only a Muslim man.
  • Permission for a virgin female to marry must be given by her guardian, usually her father.
  • Any Muslim woman may demand her guardian marry her to a Muslim male, provided he is suitable. If the guardian refuses, a judge will effect the marriage.[94]
  • The father, or in some cases the paternal grandfather, may choose a suitable partner for a virgin girl.[95]
  • The guardian may not marry the divorced woman or the widow if she did not ask to be married.
  • Without the permission of the girl an Islamic marriage is considered invalid.
  • It is obligatory for a man to give bride wealth (gifts) to the woman he marries – “Do not marry unless you give your wife something that is her right.”[96]
Polygamy

The Qur’an permits a Muslim man to marry more than one woman at a time (up to a maximum of four), but does not encourage such behaviour. Polygamy is only permitted in certain circumstances, such as when the death of another man has left his wife with no other means of support.[97] All wives are entitled to separate living quarters at the behest of the husband and, if possible, all should receive equal attention, support, treatment and inheritance. In modern practice, it is uncommon for a Muslim man to have more than one wife; if he does so, it is often due to the infertility of his first wife. The practice of polygamy has been regulated or abolished in some Muslim states.[97][98]

Historically, Muslim rulers have often remarried the wives of their conquered opponents in order to gain ties of kinship with their new subjects. In these cases, the wives of leaders have sometimes numbered in the tens or even hundreds. In Ottoman Turkey, the practice also filtered down to the aristocracy. This became the basis for the Western image of a powerful, wealthy Muslim with a vast harem.[99]

Divorce

The laws governing divorce vary substantially between sects, schools, states and cultures. The following outline is general in nature.

A marriage can be terminated by the husband in the talaq process, or by the wife seeking divorce through khul’. Under faskh a marriage may be annulled or terminated by the qadi judge.

Men have the right of unilateral divorce under classical sharia. A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her, however a Shia divorce also requires four witnesses.[100] Upon divorce, the husband must pay the wife any delayed component of the dower. If a man divorces his wife in this manner three times, he may not re-marry her unless she first marries, and is subsequently divorced from, another man. Only then, and only if the divorce from the second husband is not intended as a means to re-marry her first husband, may the first husband and the woman re-marry.[Quran 2:230]

In practice, unilateral divorce is only common in a few areas of the Islamic world. It is much more common for divorces to be accomplished by mutual consent.[100]

If the wife asks for a divorce and the husband refuses, the wife has a right, under classical sharia, to divorce by khul’. Although this right is not recognized everywhere in Islam, it is becoming more common. In this scenario, the qadi judge will effect the divorce for the wife, and she may be required to return part, or all, of her dowry.[100]

Under faskh, a qadi judge can end or annul a marriage.[100] Apostasy, on the part of the husband or wife, ends a Muslim marriage in this way. Hardship or suffering on the part of the wife in a marriage may also be remedied in this way. This procedure is also used to annul a marriage in which one of the parties has a serious disability.[101]

Except in the case of a khul’ divorce initiated by a woman, the divorced wife generally keeps her dowry from when she was married. A divorced woman is given child support until the age of weaning. The mother is usually granted custody of the child.[102] If the couple has divorced fewer than three times (meaning it is not a final divorce) the wife also receives spousal support for three menstrual cycles after the divorce, until it can be determined whether she is pregnant. Even in a threefold divorce, a pregnant wife will be supported during the waiting period, and the child will be supported afterwards.[103]

Child custody

In a divorce, the child will stay with the mother until he or she is weaned,[104] or until the age of discernment, when the child may choose whom he or she lives with. The age of discernment is seven or eight years.[104]

Justice

The concept of justice embodied in sharia is different from that of secular Western law.[105] Muslims believe the sharia law has been revealed by God. In Islam, the laws that govern human affairs are just one facet of a universal set of laws governing nature itself. Violations of Islamic law are offenses against God and nature, including one’s own human nature. Crime in Islam is sin. Whatever crime is committed, whatever punishment is prescribed for that crime in this world, one must ultimately answer to God on the Day of Judgement.[105]

Leaving Islam/Apostasy

In most interpretations of sharia, conversion by Muslims to other religions or becoming non-religious, is strictly forbidden and is termed apostasy. Non-Muslims, however, are allowed to convert into Islam.[126] Muslim theology equates apostasy to treason, and in some interpretations of sharia, the penalty for apostasy is death. During the time of Muhammad, treason and apostasy were considered one and the same; nowadays, many scholars differentiate between treason and apostasy, believing that the punishment for apostasy is not death, while the punishment for treason is death.

The accusation of apostasy may be used against non-conventional interpretations of the Quran. The severe persecution of the famous expert in Arabic literature, Nasr Abu Zayd, is an example of this.[127] Similar accusations and persecutions were famously leveled against the author Salman Rushdie.[128][not in citation given]

Dietary

Islamic law does not present a comprehensive list of pure foods and drinks. However, it prohibits:[129]

  • Swine, blood, the meat of already dead animals and animals slaughtered in the name of someone other than God.
  • Slaughtering an animal in any other way except the prescribed manner of tazkiyah (cleansing) by taking God’s name, which involves cutting the throat of the animal and draining the blood. Slaughtering with a blunt blade or physically ripping out the oesophagus is strictly forbidden. Modern methods of slaughter like the captive bolt stunning and electrocuting are also prohibited.[130]
  • Intoxicants

The prohibition of dead meat is not applicable to fish and locusts.[131][132][133] Also hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,[134] Jallalah (animals whose meat carries a stink in it because they feed on filth),[135] tamed donkeys,[136] and any piece cut from a living animal.[129][137]

Liquor and gambling

Liquor and gambling are expressly prohibited in the Quran, and sharia law.

Muhammad is reported to have said: “He who plays with dice is like the one who handles the flesh and blood of swine.”

Abd-Allah ibn Amr reported that Muhammad prohibited all games of chance and card playing that caused financial gain or loss.[138]

Customs and behaviour

Practitioners of Islam are generally taught to follow some specific customs in their daily lives. Most of these customs can be traced back to Abrahamic traditions in Pre-Islamic Arabian society.[139] Due to Muhammad’s sanction or tacit approval of such practices, these customs are considered to be Sunnah (practices of Muhammad as part of the religion) by the Ummah (Muslim nation). It includes customs like:

  • Saying “Bismillah” (in the name of God) before eating and drinking.[140]
  • Using the right hand for drinking and eating.[141]
  • Saying “As-Salaam Alaikum” (peace be upon you) when meeting someone and answering with “Wa ‘alaikumus salam” (and peace be upon you).[142]
  • Saying “Alhamdulillah” (all gratitude is for only God) when sneezing and responding with “Yarhamukallah” (God have mercy on you).[143]
  • Saying the “Adhan” (prayer call) in the right ear of a newborn and the Iqama in its left.
  • In the sphere of hygiene, it includes:
    • Clipping the moustache
    • Cutting nails
    • Circumcising the male offspring[144][145]
    • Cleaning the nostrils, the mouth, and the teeth[146] and
    • Cleaning the body after urination and defecation[147]
  • Abstention from sexual relations during the menstrual cycle and the puerperal discharge,[Quran 2:222] and ceremonial bath after the menstrual cycle, and Janabah (seminal/ovular discharge or sexual intercourse).[Quran 4:43][Quran 5:6]
  • Burial rituals include funeral prayer[148] of bathed[149] and enshrouded body in coffin cloth[150] and burying it in a grave.[151]