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Sharia

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Sharia (Arabic شريعة also Shari'a, Shariah or Syariah) is traditional Islamic law. Like most religious cultures, Islam classically drew no distinction between religious and secular life. Hence Sharia covers not only religious rituals, but many aspects of day-to-day life. However, this traditional view of religious law is opposed by modern liberal movements within Islam. The term itself refers to "way to water" or a "break in a riverbank allowing access to water." Islamic scholars for the most part distinguished between fiqh which means 'understanding' and refers to the inferences drawn by scholars from the sources of law, and sharia which is the moral ideals that lie behind the fiqh. Scholars hope that fiqh and sharia are in a particular case, identical, but they cannot be sure. What is certain is that if one acts on legitimately derived fiqh, one is exempt from sanction.

For Sunni Muslims, the sources of Islamic law are the Qur'an and the Hadith, but ijma, the consensus of the community, was also accepted as a minor source. Qiyas — various forms of reasoning, including by analogy — are used by the law scholars (Mujtahidun) to deal with situations where the sources provided no concrete rules. In Imami-Shi'i law, the sources of law (usul al-fiqh) are Qur'an, anecdotes of the Prophet's practices and those of the 12 Imams, and the intellect ('aql ). The practices called Sharia today, however, also have roots in local customs (Al-urf).

The Islamic jurisprudence is called fiqh and is divided into two parts: the study of the sources and methodology (usul al-fiqh – roots of the law) and the practical rules (furu' al-fiqh — branches of the law).

Table of contents

Dietary laws

When eating meat, sharia dictates that Muslims may only eat from meat that has been slaughtered in the name of God and meets stringent dietary requirements. Such meat is called halal or 'lawful' (acceptable). Islamic law prohibits a Muslim from eating pork, and meat that has been slaughtered in other than the name of God. Most juridicial opinions also hold monkey, dog, cat, carnivores, and several other types of animal as being prohibited or haram. For the meat of an animal to be halal (lawful) it must be one of the declared halal species, it must generally be slaughtered by a Muslim, and it may not be killed by excessively cruel or painful means. The traditional means of slaughter is by slicing open the jugular veins at the neck, resulting in quick blood loss; a state of shock and unconsciousness is induced, and death soon follows through cardiac arrest.

According to the Qur'an, the animal does not have to be slaughtered by a Muslim, but may be slaughtered by a Jew or a Christian (People of the Book) as long as it meets their strict dietary laws (al-Ma'ida 5: "The food of those who have received the Scripture is lawful for you.") Thus, most Muslims will accept kosher meat as halal. However, some Muslims regard this as no longer applicable in modern times[1], insisting that Muslims should not eat kosher meat because of concerns about the techniques and words used in kosher slaughter, and because of the possibility of money spent on it ultimately going to finance Israel. Jurists disagree on the exact circumstances required for meat slaughtered by Christians to be halal.

The role of women in Islam

Islam does not prohibit women from working, but emphasizes the importance of caring for house and family for both parents. In theory, Islamic law allows each spouse to divorce at will, by saying "I divorce you" three times in public. In practice divorce is more involved than this and there may be separate state proceedings to follow as well. This practice is valid within most of the Muslim world today. Usually, the divorced wife keeps her dowry from when she was married, if there was one, and is given child support until the age of weaning at which point the child may be returned to its father if it is deemed to be best.

In addition, women are generally not allowed to be clergy or religious scholars. Many interpretations of Islamic law hold that women may not have prominent jobs, and thus are forbidden from working in the government. This has been a mainstream view in many Muslim nations in the last century, despite the example of Muhammad's wife Aisha, who both took part in politics and was a major authority on hadith. However, this is not the case in other more moderate Muslim nations. For example, Pakistan, Indonesia, Turkey, and Bangladesh, all predominantly Muslim nations, have had female heads of government or state (e.g. Benazir Bhutto, Megawati Sukarnoputri, Tansu Ciller and Khaleda Zia respectively). Muslim women also hold important positions in governments or in corporations.

As part of secular revolutions brought by Ataturk (founder of modern Turkey) in late 1920s and early 1930s, women were given the right to vote in Turkey significantly earlier than some Western countries including France (1944), Italy (1945), Mexico (1958), and Switzerland (1971).

A Muslim may not marry or remain married to an unbeliever of either sex (2:221, 60:10). A Muslim man may marry a woman of the People of the Book (5:5); traditionally, however, Islamic law forbids a Muslim woman from marrying a non-Muslim man. If the man chooses to convert to Islam marriage then would be allowed.

See also ma malakat aymanukum.

Dress code

The Qur'an also places a dress code upon its followers. For women, it emphasizes modesty. Allah says in the Qur'an, "And tell the believing women to lower their gaze and guard their private parts and not to display their adornment (interpreted as the hair and body-shape) except that which ordinarily appears thereof (interpreted as the face and hands) and to draw their headcovers over their chests and not to display their adornment except to their husbands, their fathers, their husbands fathers, their sons, . . . ." (sura Nur verse 31). All those in whose presence a woman is not obliged to practice the dress code are known to be her mahrams. Men have a dress code which is more relaxed: the loins must be covered from knee to waist. The rationale given for these rules is that men and women are not to be viewed as sexual objects.

Turkey, a predominantly Muslim country has laws against these dress codes in schools and work places. After the declaration of the Republic in 1923, as part of revolutions brought by Ataturk, a modern dress code was encouraged. It is against the law to wear a head scarf while attending public school in Turkey, as well as France, where the recently enacted rule caused huge public controversy.

In practice, men dictate what women are allowed to wear in many culturally Islamic countries. Infringement of these rules in some Muslim nations may result in beatings. Some view Islamic women as being oppressed by the men in their communities because of the required dress codes. However, in more moderate nations, where these dress codes are not obligatory, there are still many Muslim women who practice it, where most of them choose to follow it because they believe it is the will of Allah. One of the garments women are required to wear is the hijab (of which the headscarf is one component). The word hijab is derived from the Arabic word hijaba which means 'to hide from sight or view', 'to conceal'. Hijab means to cover the head as well as the body.

Domestic justice

According to most interpretations, authorization for the husband to physically beat disobedient wives is given in the Qur'an. First, admonishment is verbal and secondly a period of refraining from intimate relations. Finally, if the husband deems the situation appropriate, he may hit her:

"Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great." (Qur'an 4:34 English translation: MH Shakir)

The medieval jurist ash-Shafi'i, founder of one of the main schools of fiqh, commented on this verse that "hitting is permitted, but not hitting is preferable."

The Arabic verse uses idribûhunna (from the root daraba ضرب), whose commonest meaning in Arabic has been rendered as "beat", "hit", "scourge", or "strike". Besides this verse, other meanings for daraba used in the Qur'an (though not with a human direct object) include 'to travel', 'to make a simile', 'to cover', 'to separate', and 'to go abroad', among others. For this reason — particularly in recent years (e.g. Ahmed Ali, Edip Yuksel) — some consider "hit" to be a misinterpretation, and believe it should be translated as "admonish them, and leave them alone in the sleeping-places and separate from them." Certain modern translations of the Qur'an in the English language accept the commoner translation of "beat", but tone down the wording with bracketed additions.

Several Hadith urge strongly against beating one's wife, such as: "How does anyone of you beat his wife as he beats the stallion camel and then embrace (sleep with) her? (Al-Bukhari, English Translation, vol. 8, Hadith 68, pp. 42–43), "I went to the Apostle of Allah (peace be upon him) and asked him: What do you say (command) about our wives? He replied: Give them food what you have for yourself, and clothe them by which you clothe yourself, and do not beat them, and do not revile them. (Sunan Abu-Dawud, Book 11, Marriage (Kitab Al-Nikah), Number 2139)". However, some suggest that these Hadith were later abrogated, noting that in the Farewell Pilgrimage, he said:

Fear Allah concerning women! Verily you have taken them on the security of Allah, and intercourse with them has been made lawful unto you by words of Allah. You too have right over them, and that they should not allow anyone to sit on your bed whom you do not like. But if they do that, you can chastise them but not severely. Their rights upon you are that you should provide them with food and clothing in a fitting manner. (Narrated in Sahih Muslim, on the authority of Jabir.) [2]

Sheikh Yusuf al-Qaradawi, head of the European Council for Fatwa and Research, says that:

"If the husband senses that feelings of disobedience and rebelliousness are rising against him in his wife, he should try his best to rectify her attitude by kind words, gentle persuasion, and reasoning with her. If this is not helpful, he should sleep apart from her, trying to awaken her agreeable feminine nature so that serenity may be restored, and she may respond to him in a harmonious fashion. If this approach fails, it is permissible for him to beat her lightly with his hands, avoiding her face and other sensitive parts. In no case should he resort to using a stick or any other instrument that might cause pain and injury. Rather, this 'beating' should be of the kind the Prophet (peace be on him) once mentioned to a disobedient maid-servant, when he said 'If it were not for the fear of retaliation on the Day of Resurrection, I would have beaten you with this miswak (tooth-cleaning twig)' [as reported by Ibn Majah, by Ibn Hibban in his Sahih, and by Ibn Sa`d in his Tabaqat].[3].[4]

"Honor killings" are, in the Western world, often erroneously identified as part of Islamic teaching, though they are in fact a cultural practice which is neither exclusive to, nor universal within, the Islamic world. Such killings take place within the Muslim communities around the Mediterranean as well as in Brazil, Sweden, the United Kingdom, the Punjab in India[5], and non-Muslim parts of West Africa; while in Indonesia, the world's largest Islamic country, the status of the practice is unknown.

The stated reason for honor killings is the belief that the woman had caused the clan or family to lose honor by her alleged sexual activity and therefore deserved to be killed. Islamic teaching holds that life is given by Allah and should not be taken lightly, but it allows severe punishment, up to and including capital punishment, for certain kinds of crime; these include, in strict interpretations, all extramarital sexual relations (zina') by both men and women — though only married adulterers may be punished with death. The interpretation and application of these laws relating to marriage and chastity has varied in different eras and places. See Islamic view of marriage

Circumcision

Male circumcision involves the removal of the foreskin and is customary in most Muslim communities. It is performed at different ages in different cultures.

Female circumcision is not part of mainstream Islam on an international scale, but is performed by Muslims and non-Muslims alike across East Africa and the Nile Valley, as well as parts of the Arabian peninsula and Southeast Asia. In both areas, the custom predates Islam. Many African Muslims believe that female circumcision is required by Islam although it is not. Nevertheless it is justified on religious grounds both by Muslims and Christians who practice it, mostly in parts of Africa.

The Egyptian-born president of the 'European Council on Fatwa and Research', Yusuf al-Qaradawi emphasises that this is not a religious obligation, but expresses his personal preference for removal of the prepuce of the clitoris, called clitoridotomy (Fatwa on islamonline.net.)

The use of the term 'circumcision' is highly confusing, as the practice ranges from a mild superficial act that does not reduce any physiological function (the 'real' circumcision), to various forms of partial or even complete removal of female genital organs. In certain countries, this is accompanied by reducing the genital opening. These forms are, because of their brutal nature, also referred to as female genital mutilation (FGM). This term is most often used in official publications of the United Nations and World Health Organization.

Holidays

  • Friday is an important day in the life of a Muslim and it is believed that any devotional acts done on this day gain a higher reward. This day however should not be understood as a Sabbath, for Muslims reject the belief that God rested after Creation. Believers attend congregational prayer at the local mosque, perform prayer and listen to a sermon by the Imam. When the holidays occur, it is according to the lunar Islamic calendar. This calendar does not correct for the fact that the lunar year does not match the solar year. Therefore, the Islamic months precess each year; they shift relative to the Gregorian calendar.
  • Ramadan – month long observance of fasting during daylight hours.
  • Feast of Breaking the Fast (Eid-ul-Fitr), or the Little Feast (al-Eid saghir)- occurs at the conclusion of Ramadan and is held on the first day of the month of Shawwal.
  • The Big Feast, (Eid-ul-Adha), also "The Feast of Sacrifice" (Kurban Bayram) – two months and 10 days after the Little Feast. Animals are slaughtered to commemorate Abraham's sacrificing of a ram instead of his son as recorded in the Qur'an. (The Bible says it was his son Isaac who was to be sacrificed.) Those who are able make a pilgrimage to Mecca do so just before this date, on the Hajj.
  • Ashura – the 10th day of the month of Muharram This is the day on which God saved Moses and the Jews from Pharaoh in Egypt as he crossed the Red Sea (the Exodus day). According to Islamic tradition the prophet Muhammad fasted along with the neighboring Jewish communities on this occasion, and according to narrations, Muhammad planned on fasting on the 9th and 10th of Muharram. (According to Judaism the Jews left Egypt on the first day of Passover and crossed the Red Sea on the next morn, both of which are celebrated as holidays with meals.) This is also the day on which Muhammad's grandson, Husayn, was killed in the Battle of Karbala. For Shi'a Muslims this is a day of mourning. Many Sunni Muslims also commemorate this event, albeit in a less dramatic fashion than the Shi'a. The observance of this day is frowned upon by fundamentalists.
  • Muslim New Year – not generally celebrated as an official Islamic holiday, although many Muslim communities have devised or revived some kind of new year ritual celebration. This celebration is frowned upon by fundamentalists.
  • The Prophet's Birthday (Al-Mawlidu N-Nabawi Sh-Sharif) – Some scholars consider this holiday to be an innovation in the religion, as Muhammad himself did not celebrate it, except by fasting. This holiday is prohibited by the Islamist movement (fundamentalist Islam). Some Arab nations such as Saudi Arabia forbid Muslims to celebrate this holiday.
  • Laylat ul Qadr (The Night of the Divine Decree also of the Fate or Power) – is on one of the odd last ten night of Ramadan (21,23,25,27,29). It is considered the holiest night in the entire month of Ramadan, since it is the night when the Qur'an has been revealed. It is also considered 'better than a thousand months'. [Qur'an 97:1–3] It is said that if one offers voluntary worship on that night all his/her past sins are forgiven.
  • Laylat ul Isra' wa-l-Miraaj (The Night of the Journey and Ascension) – is on 27 of Rajab. It is the night when the Prophet Muhammad was taken to Jerusalem on a Buraq (a beast resembling horse with wings; some people consider it a cherub) and ascended to the highest level of the heavens. It is said that he negotiated with God about the number of prayers, which started at fifty a day, but on his way down he met Moses who asked him to ask for a reduction in the number because the requirement was difficult for Muhammad's people. Muhammad returned to God and several times asked for and was granted a reduction of five prayers, until the number was reduced to five in total, with the blessing that if they were properly performed, the performers would be credited with fifty prayers instead of five.
  • Laylat ul Bara'ah (The Night of Freedom from Fire) – occurs on the night between the 14th and 15th of Sha'ban. It is considered a night when Muslims are graced with Divine Mercy and blessings. The night is spent in the recitation of the Qur'an and special prayers.

Muslim apostates

Main article Apostasy in Islam

In some interpretations of an Islamic state, conversion by Muslims to other religions is forbidden and is termed apostasy. In Muslim theology, apostasy resembles the crime of treason, the betrayal of one's own country. Penalties may include ostracism or even execution if they live or have lived in an "Islamic State" and are deemed enemies of the state. By analogy, in the age of nation states, a person who commits treason (turning state's secrets to a foreign power, or spies for a foreign power, etc) is subject to severe penalty—historically, death. In contrast, a person who lives in a Western country such as the United States (or even many Muslim countries) will suffer no significant penalty for converting to another religion.

Some people claim that Muslims who convert to Christianity can be at risk. See any of the works of Ibn Warraq, who claims to be an outspoken former Muslim. (However, it's important to note that none of Ibn Warraq's personal claims can be checked or confirmed, since he uses a pseudonym.) A well-known example of a Muslim "apostate" undergoing persecution is that of Salman Rushdie, whose novel The Satanic Verses prompted Khomeini to issue a Fatwa (religious opinion) for his execution. However, others suspect that Khomeini issued this fatwa more because of the lampooning of Khomeini himself that Rushdie included in his book.

History and background

The authority of Sharia is drawn from two major and two lesser sources. The first major source is specific guidance laid down in the Qur'an, and the second source is the Sunnah, literally the 'Way', i.e. the way that Muhammad (the Prophet of Islam) lived his life. (The compilation of all that Muhammad said, did, or approved of is called the Hadith.) A lesser source of authority is Qiyas, which is the extension by analogy of existing Sharia law to new situations.

Finally Sharia law can be based on ijma, or consensus. Justification for this final approach is drawn from the Hadith where Muhammad states; "My nation cannot agree on an error." The ummah, or community of Muslims, comes together with each applying his ijtihad, or independent thought and judgement, to achieve this consensus. The role of ulema, i.e. scholars, is critical, since they are the ones who study the Islamic law and therefore have authority to represent it. Sharia has largely been codified by the schools (maddhabs) of Islamic Jurisprudence (Fiqh).

The comprehensive nature of Sharia law is due to the belief that the law must provide all that is necessary for a person's spiritual and physical well-being. All possible actions of a Muslim are divided (in principle) into five categories: obligatory, meritorious, permissible, reprehensible, and forbidden. Fundamental to the obligations of every Muslim are the Five Pillars of Islam.

In theory, there is no conflict between the process as outlined by Muhammad and very progressive and consultative political movements, e.g. green parties. In fact, the latter even defined Four Pillars of the Green Party, to some degree in imitation of Islam's Five Pillars, and in admiration of the idea of a consensus-driven process of the whole community coming to some well-reasoned conclusion compatible with science and scholarship. In practice, however, there is often incredible tension between conservative, liberal or secular forces.

Freedom of Speech

The modern concept of freedom of speech on political and religious matters arises from the European Enlightenment of the 1800s and was alien to religions such as Christianity and Judaism in their pre-modern forms. Similarly, Sharia law in its most vigorous interpretations does not allow freedom of speech on such matters as criticism of the prophet Muhammad.

The Qur'an says that Allah curses the one who harms the Prophet in this world and He connected harm of Himself to harm of the Prophet. There is no dispute that anyone who curses Allah is killed and that his curse demands that he be categorised as an unbeliever. The judgement of the unbeliever is that he is killed. ... [T]here is a difference between ... harming Allah and His Messenger and harming the believers. Injuring the believers, short of murder, incurs beating and exemplary punishment. The judgement against those who harm Allah and His Prophet is more severe — the death penalty. ("The proof of the necessity of killing anyone who curses the Prophet or finds fault with him")[6]

Confronted with such arguments, many Westerners can be driven into attitudes reminiscent of, or actually partaking in, Islamophobia.

On the other hand, the denial of freedom of speech by Muslims is not only restricted to those Muslims supporting 'the most vigorous interpretations'. In Egypt, public authorities went so far as to try to annul, without his consent, the marriage of Prof. Nasr Abu Zayd when he got in conflict with an orthodox islamic cleric from the Al-Azhar University in Cairo. The cleric had condemned Abu Zayd's reading of the Qur'an as being against the orthodox interpretation and labelled him an apostate (seen as a non-believer and consequently not permitted to marry or stay married to a Muslim woman). Abu Zayd fled to the Netherlands where he is now a professor at the university of Leiden. Nevertheless, the case illustrates how far more common or average interpretations can go.

Practice of Sharia

There is tremendous variation in the interpretation and implementation of Islamic laws in Muslim societies today. Some believe that colonialism, which often replaced religious laws with secular ones, caused this variation. More recently liberal movements within Islam have questioned the relevance and applicability of sharia from a variety of perspectives. As a result, several of the countries with the largest Muslim populations, including Indonesia, Bangladesh and India have largely secular constitutions and laws, with only a few Islamic provisions in family law. Turkey has a constitution that is strongly secular.

Likewise, most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence. Sharia is also used in Sudan, Libya and for a time in modern Afghanistan. Some states in northern Nigeria have reintroduced Sharia courts. In practice the new Sharia courts in Nigeria have most often meant the re-introduction of relatively harsh punishments without respecting the much tougher rules of evidence and testimony, such as the necessity of four eyewitnesses, with a woman's testimony counting no less than that of a man. The punishments include amputation of one/both hand(s) for theft and stoning for adultery. Such measures are usually introduced to gain support of local ulema who are often community leaders in rural areas. Muslim scholars tend to agree that Muhammad himself would not run courts along these lines in an otherwise secular society, nor introduce these punishments into societies rich enough to afford prisons and rehabilitation and cohesive enough to prevent accused criminals from being killed by outraged victims and communities.

An unusual secular-state example appears, at first observation, a Sharia arbitration court being established in Ontario, Canada. That province's 1991 arbitration court law allows disputes to be settled in alternative courts to avoid backing up the court system. The court would handle disputes between Muslim complainants. Its critics fear that the misogyny inherent in Sharia could end up influencing the Canadian justice system, but its proponents say those who do not wish to go by the court's rulings are not forced to attend it. Moreover, these sharia courts in Canada are only orthodox in a limited way as they respect the priority of canadian civil law. Anybody not satisfied with a ruling from the sharia court can in appeal with a civil court. As such, this sharia court is only a very pale version of sharia.

Like Jewish law and Christian canon law, Islamic law means different things to different people in different times and places. In the hands of moderates, religious law can be moderate, even liberal. In the hands of post-Enlightenment readers of philosophy, religious law is relegated to ritual (as opposed to law in a civil sense), or even to just being history. In the hands of fundamentalists, it is legally binding on all people of the faith, and even on all people that come under their control. Islamic law to American Muslims in Dearborn, Boston, or Houston is a very different thing than Islamic law to religious Muslims in Egypt, Saudi Arabia, the Gaza Strip, western China, Nigeria[7], Indonesia, or Pakistan. All of them are following Islamic law, yet it varies as much as individual Muslims vary.


See also

  • Hudud – Severe crimes (sometimes considered "crimes against God")
  • Tazir – Less severe crimes (thus, "crimes against society", not God)
  • Qesas – retaliatory crimes

Sources

An Untold Love Story By Yagmur Dursun

The International Campaign against setting up Shari'a court in Canada

External links








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