Islamic Law
Islam is considered the second largest religion with the highest number of followers after Christianity, having the same length of history and similarity in teachings. While history had showcased the bloody and yet influential development of Muslim communities and its belief throughout the globe, it is undeniable that it had made a considerable mark to many regions, embedding itself not just in the state of mind of its followers but also in the very fabric of one’s country. Islam became the foundation of many nation’s legislation and tradition that even up to today, it serves as a reminder of what an ideal Muslim life. However, in recent years, the Islamic law is put into the frontlines as the “official law of the land” and at the same time, a law that must be questioned given the harsh sanctions and punishments of such religiously inclined order. Nonetheless, the Islamic law itself firmly interlinks all Islamic nations under one creed that still fosters diplomacy and democracy to take into main importance while taking into consideration religion’s influence to law.
According to Johnson and Vriens (2013), the Islamic law is known as the Sharia, which came from the Arabic term meaning “path”. The Sharia is the foundation of all aspects of Islamic life and virtue, from one’s daily routine up to his religious obligations and financial commitments. The Sharia is mostly established under the Islamic text Quran and from the Sunna, which contains the sayings, teachings, and creed of the Prophet Mohammed. Scholars nowadays often give analogies from these two books pertaining to the issues that Muslims now face in the modern world. The Muslim Community sees the Sharia as their everyday creed, defining their stand on several issues and controversies. The Sharia’s history can be traced back sometime around the death of Prophet Mohammed sometime around 632 CE when the Islamic empire had managed to expand to North Africa and to China. Since many had believed that Prophet Mohammed is the ideal model to look up to over the creed he has lived throughout his life, Muslims and scholars had slowly studied his life and created the “hadith”. With the difference in local traditions and how they practice Islam, the Muslims had their own set of hadith literature that would cover the different schools of Islamic thought: Sunni, Hanbali, Maliki, Shafi’I, Hanafi and the Ja’fari schools. Each of these schools vary in how strong the sharia must be implemented, as well as to how consensus could be met by the entire community. For example, the Hanbali School is known for their orthodox interpretation of Islam, seen in Saudi Arabia and in the belief of the Taliban. The Hanafi School, on their end, practices liberal Islam and proper reason and analogy seen in nations where the Sunni are located: Central Asia, Egypt, Pakistan, India, China, Turkey, the Balkan territories, and the Caucasus. The Maliki School is practiced throughout North Affrica while the Shafi’I school is prominent in the Southeast Asian countries of Indonesia, Malaysia, Brunei, and in Yeme. Finally, the Ja’fari school is adhered to by the Shia Muslims mostly concentrated in Iran. These schools make more impact on the legal system of each nation where Muslim communities reside, nonetheless, individuals are allowed to practice which school they align in understanding Islam. Aside from the nature of the Islamic schools and their interpretation of the hadith, Wynbrandt (2010) stated that the Sharia also incorporated aspects such as the Bedouin, Meccan, Medinese, and other tribal influences from Muslim communities.
As stated, the Sharia covers all aspects of Muslim life, and the regulations are divided under the science of Fiqh. The Fiqh identifies three types of regulations: the ibadat or the regulations for worship and religious traditions, the muamalat or the civil and legal laws for the Muslim community, and the uqubat or the regulations on punishments and jurisprudence. Scholars had discovered that there are at least 200 verses in the Quran that did not discuss all possible situations that would require legal adjudication. The hadith also lacks in several guides on issues that the Quran did not outline in its verses. As a result, this issue is known as scientific speculation: creating the two new aspects of Islamic jurisprudence: qiyas and ijma. The ijma, or the consensus of opinion, enabled Islamic law to evolve as a type of law that would adapt with new situations and novel situations that may arise in the community. Meanwhile, the Qiyas enabled Islamic law to incorporate questions of justice that currently has no religious or ethical set of rules in existence. In ensuring the application of the Islamic law, a group of experts on the Quran and the Hadith serve as the ulama or ulema (alim if only pertaining to one individual from the group). The ulama represents the Islamic community or the ummah and serve as the arbiters of the Sharia. Subsequently, they serve as an influential actor for the community, ensuring that rulers or the caliphs adhere to the Quranic law and the public’s continuous adherence to their faith. Decisions of the ummah are reached under a consensus and once a decision is reached, there is no possible means to undertake a revision of decisions by rechecking the sharia. In some communities, new interpretations of the Sharia is heretical, especially once legal decisions are established. However, as years progressed, legal opinions reshaped the nature of the Sharia on jurisprudence, leading to the removal of scholars as the interpreters and arbiters of the law and just turn them as the catalogers of the new interpretations of the law.
When it comes to the punishments under the sharia, it is also sanctioned under the eyes of the Quran and the Hadith. Traditional punishments under the sharia normally include amputation, branding (usually in the forehead), eye gouging, or by stoning as the main execution action done to criminals. Under the hadith Sahih al-Bukhari (8:81:78), the Prophet Muhammad stated that “By Him in whose Hand my soul is if Fatima (his daughter) stole aught I would cut off her hand”. While this particular hadith had supported the notion of amputation, several dozen of hadith and Quran verses condoned the act of amputations as punishments for thievery. Today, there are still nations who practice amputations or beheadings nonetheless the numbers are not released to the public given the outlook of the Western nations on their beliefs. In the case of the citizens, they could access court services outside the legal services which practices the qadis to address the wrongs, mazalim. In these cases, religious or mazalim courts often give the cases to legal experts, who would then give out their opinion over the topic. The legal expert would then be called as a mufti and his ruling would be done under the fatwa, or the statement of legal issues that outlines all the aspects of the case. Muftis are originally independent of the state, however, they slowly became a part of the main secular administration under the Ottoman regime .
The Sharia also emphasizes on the nature of marriage and divorce, however, the aspect of offenses under these two issues are under several categories. One of these categories is known as the hadd punishments, which is prescribed under the Quran and fall under the judge’s discretion especially on tit-for-tat measures. There are at least five known had crimes listed in the Sharia: unlawful sexual intercourse (adultery or pre-marital sex), false accusation of unlawful sexual intercourse, alcohol drinking, theft, and highway robbery. While there are traditional punishments available under the Sharia, hadd offenses have their own set of punishments – flogging, stoning, amputation, exile and execution. As expected, once an execution under hadd is done, the media often would flock these executions. It is noted by experts that most sentences under the hadd are not prescribed under the law as they are not the traditional classical punishments. Nonetheless, these punishments are written in the books of some Islamic nations, often replaced by lesser penalties as they are seen by many communities to be sufficient enough as punishment.
In recent years, the nature of the Sharia, and its punishments, are placed under scrutiny given the situation in the Arab nations. Experts, such as in the United Nations, listed that there is a worldwide problem on honor killings, murders due to dishonor, and blood reparations. While Muslim nations would not give up precise details on these matters, the UN speculates that almost thousands of women and children are killed for the sake of family honor. There are also controversies within the Muslim communities over the issue of Sharia’s vision over practices such as female genital mutilation (which is known to the Muslims as female circumcision), adolescent marriages, polygamy, and gender-biased inheritance rules and even divorce. Sanctions under the Quran and the practices that would be affected are also some of the issues questioned against Islam’s Sharia. Nonetheless, there have been groups which tried to eliminate the questionable and controversial practices the Sharia still does not cover in its policies and cite them with the tajdid. For these groups, renewal is the key to ensure that Islam still remains to be the most pure of them all. However, Islamic scholars had argued that the last time Islam had been in its purest form was that in the 7th century.
Aside from the usual debates on Sharia’s punishments and in its discussions, it also gained controversy sometime in the 2011 Arab uprisings as it contradicts against secular law. In the 2010 Pew Research poll conducted in major Islamic nations in the Arab region, it reflected that many still support Islam’s notion that punishments must be done in a harsh manner for crimes such as theft, adultery and religious conversion. Nonetheless, there were nations that also believed that democracy would be a good medium to enforce governance. While the sentiment harbors some hope, experts have argued that democracy and Islam cannot coexist. Conservative Muslims had argued that democracy is a Western concept that would not work well with Muslim nations as it has its own laws to adhere to. Others have stressed that Islam needs a democratic system as it would work well with the Islamic creed of “mutual consultation” with the people as written in the Quran’s verses (42:38 Quran). Experts from the Council of Foreign Relations John Esposito and John Voll had expressed that while they did not outright reject democracy, the Muslim communities see the sharia as a means to liberate themselves from the harsh realities of their corrupt governments and restore a democratic framework that would aid their recovery. On the other hand, there are scholars who see that the secular government would be the best means to observe the capacity of the sharia. Nonetheless, there is a growing notion that the sharia itself had already embedded itself deeply to the politics of many nations and it may be difficult or tricky to balance it out with secular law, despite some studies that a balance is possible.
Most nations in the Arab nations, as well as those under Muslim rule have dual legal systems that would both offer secular government services and Sharia-based courts. Muslims can decide whether they wish a democratic type of courts or Sharia courts on their issues. Since there are several differences when it comes to the jurisdiction of these courts per country depending on their school of thought or Islamic support, nonetheless it covers most issues on family law. Tanzania has their own variation wherein the civil courts would use both sharia and secular law depending on the defendants. This variation is also similar with Lebanon and Indonesia, but they also applied in their end the residual colonial legal systems they have acquired in the past. Western nations are also now enabling the possibility of allowing the Sharia to be a basis for familial and financial dispute such as in Britain and in the European regions. Many supported this advocacy such as Rowan Williams, former archbishop of Canterbury, since he believes that this would ensure social cohesion in Europe which has been influenced by the religious divide for more than a century. However, the US still maintains a volatile stance on the Sharia as many were against the Islamic law on court cases.
Aside from the dual system applied by Muslim nations, Islam also sees the Sharia as the source of all laws, making the government adhere to the laws of God. Saudi Arabia, Kuwait, Yemen, and the United Arab Emirates had all stated that their governments were legitimized by Islam. Pakistan and Iraq had even stated that they would not accept laws which were not derived from Islam. Libya, Egypt and Tunisia had also used the Sharia as their basis on how the constitutions must be drafted. Out of all the Muslim nations, it is Saudi Arabia that strictly enforces the sharia, especially in terms of how women must act in public. On the other hand, nations such as the United Arab Emirates, is lax over their adherence and application of the sharia. Finally, there is also the notion that while there are Muslim nations that adhere to the democratic or secular means of life, they still adhere to the Sharia as it influences their local traditions. Islamic groups still reign in their governments, clashing with secularism. This argument is quite visible in Turkey as the current majority party, the Islamist Justice and Development Party, is trying to force the establishment of the sharia under the secular government. While secular Muslim nations are quite rare and can be considered a minority under the entire Islamic population, it is only but a matter of time for these Islamic parties to gain access to these secular communities.
Finally, the Sharia also gains a following when it comes to its impact in the economy. In the latest estimate from the Council on Foreign Relations, the Islamic banking and financial system is growing at around 15% each year, modifying the practices of current business means to follow the Sharia. For this field, the Muslims apply the idea of the riba, or the charging or payment of interest. Muslims in this field are capable of finding loopholes on many financial products such as loans, credit cards and even trusts funds. Many global banks had seen the benefit of utilizing the Muslim market and opened up sharia-based markets to cater to the demand from the Muslim sector. Businesses are also seeing the benefits of utilizing sharia-compliant investments and proposals as it would ensure that money would be invested on sharia-compliant industries. Currently, Malaysia is the largest issuer of sharia-accredited bonds and Indonesia is also following the trend in 2009 . Given these issues on the benefits and the technicalities of the Sharia, Grossman (2013) had reported that Muslims still believe highly on the nature of Islam and how they live according to the Sharia. In the recent report filed by the Pew Research Center, it shows that Muslims see the Sharia as the “official law of the land” but they still see that the harsh punishments must be removed for it is no longer “appropriate” in the current time. There is also the remaining sentiment that Muslim religious leaders should be given power in the political issues. Democracy is still a questionable issue in the Muslim communities as they don’t see that democracy could actually impact Islamic lifestyle. While democracy is possible, Islam must still be an important factor in creating the Muslim society. Finally, the reports also state that amongst Muslims, they state that violence under the creed of the Sharia that is happening around the globe must not be tolerate as it is not a justifiable means of punishing those who had been wrong in the eyes of Islam .
Similar to the laws used by Western and non-Muslim communities, the Sharia has its own categories that could cater to any issue and would fit any Islamic school of thought. While its policies are questionable over the nature of democracy and society, the Sharia showcases a unified system that all Muslims adhere to and enables these communities to prosper. Today, it is crucial to the public to understand the nature of Islam’s views on political, economic and social issues for the Muslim communities still varies in faith with the Western and other religious beliefs. Muslims in the current context have also showcased that while it is flawed, the Sharia still maintains an important aspect in establishing a strong Islamic society.
References
Grossman, C. L. (2013, May 1). Report: Muslims back Islamic law, disagree on meaning. Retrieved from USA Today: http://www.usatoday.com/story/news/world/2013/05/01/islam-muslim-pew-research/2124941/
Johnson, T., & Vriens, L. (2013, January 9). Islam: Governing Under Sharia. Retrieved from Council on Foreign Relations: http://www.cfr.org/religion/islam-governing-under-sharia/p8034#p3
Wynbrandt, J. (2010). A Brief History of Saudi Arabia. New York: Infobase Publishing.
