The general public and many academics have several preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes. This blog explores that idea and looks at other myths in an attempt to present Islamic Law from a non-biased view of Sharia Law.
Some contemporary scholars fail to recognize Islamic Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice on the religious law categories of Islamic Law, Hindu Law, which is still used in some parts of India, and the Law of Moses from the Old Testament which still guides the current thought of the Israeli Knesset (Parliament) today. This survey will attempt to alter some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings.
What is sharia law?
In Arabic, sharia derives from a word meaning the way, or “the clear, well-trodden path to water.” In practice, it is understood, interpreted and applied differently around the world, according to divergent traditions, cultural contexts and the role of Islam in government. A body of religious rules to guide the day-to-day lives of Muslims, including prayer and fasting, it is based mainly on the Koran, Islam’s holy book, as well as the words and teachings of the prophet Muhammad. Leaders, clerics and practitioners take a diverse array of approaches to the traditions and precedents. This could include a role for sharia in criminal law — a stringent code of punishment applied in very few countries — or Islamic personal law that governs issues like marriage, inheritance and child custody, which is more common across the Muslim world.
Elements of Sharia Law
Islamic law is known as Sharia Law, and Sharia means the path to follow God’s Law. Sharia Law is holistic or eclectic in its approach to guide the individual in most daily matters. Sharia Law controls, rules and regulates all public and private behavior. It has regulations for personal hygiene, diet, sexual conduct, and elements of child rearing. It also prescribes specific rules for prayers, fasting, giving to the poor, and many other religious matters. Civil Law and Common Law primarily focus on public behavior, but both do regulate some private matters.
Sharia Law can also be used in larger situations than guiding an individual’s behavior. It can be used as guide for how an individual acts in society and how one group interacts with another. The Sharia Law can be used to settle border disputes between nations or within nations. It can also be used to settle international disputes, conflicts and wars. This Law does not exclude any knowledge from other sources and is viewed by the Muslim world as a vehicle to solve all problems civil, criminal and international.
Sharia Law has several sources from which to draw its guiding principles. It does not rely upon one source for its broad knowledge base. The first and primary element of Sharia Law is the Quran. It is the final arbitrator and there is no other appeal. The second element of Sharia Law is known as the Sunna, the teachings of the Prophet Mohammed not explicitly found in the Quran. The Sunna are a composite of the teachings of the prophet and his works. The Sunna contain stories and anecdotes, called Hadith, to illustrate a concept. The Quran may not have all the information about behavior and human interaction in detail; the Sunna gives more detailed information than the Quran.
The third element of Sharia Law is known as the Ijma. The Muslim religion uses the term Ulama as a label for its religious scholars. These Ulamas are consulted on many matters both personal and political. When the Ulamas reach a consensus on an issue, it is interpreted as a ijma. The concepts and ideas found in the ijma are not found explicitly in the Quran or the teachings of the Prophet (Sunna). Islamic judges are able to examine the ijma for many possible solutions which can be applied in a modern technical society. They are free to create new and innovative methods to solve crime and social problems based upon the concepts found in the ijma. These judges have great discretion in applying the concepts to a specific problem.
The Qiyas are a fourth element of Sharia Law. The Qiyas are not explicitly found in the Quran, Sunna, or given in the Ijma. The Qiyas are new cases or case law which may have already been decided by a higher judge. The Sharia judge can use the legal precedent to decide new case law and its application to a specific problem. The judge can use a broad legal construct to resolve a very specific issue. For example, a computer crime or theft of computer time is not found in the Quran or Sunna. The act of theft as a generic term is prohibited so the judge must rely on logic and reason to create new case law or Qiyas.
The fifth element of Sharia Law is very broad and “all encompassing.” This secondary body of knowledge may be ideas contained in the other written works. The New Testament is an example of this area of information, and legal discourses based upon Civil Law or Common Law may be another example. All information can be examined for logic and reason to see if it applies to the current case. It also may be a local custom or norm that judge may find helpful in applying to the issue before him. The judge may also weigh the impact of his decision upon how it will effect a person’s standing in the community.
Crimes in Islam
Crimes under Islamic Law can be broken down into three major categories. Each will be discussed in greater detail with some common law analogies. The three major crime categories in Islamic Law are:
- Had Crimes (most serious).
- Tazir Crimes (least serious).
- Qesas Crimes (revenge crimes restitution).
How has the Taliban previously applied its interpretation of sharia in Afghanistan?
When the Taliban last controlled the country, from 1996 to 2001, the militants enforced a harsh interpretation of sharia law. Women were forced to wear burqas — the head-to-toe, face-covering garment — and could face beatings if they ventured outside on their own without a male guardian.
Schools for girls were shut. People who violated the Taliban’s rules could be publicly executed, whipped or stoned.
Some parts of Afghanistan have remained under or returned to Taliban rule over the past two decades. In those areas, the group continued to impose strict rule, amid some modest signs of reform.
What does the Taliban say about sharia?
The history of the Taliban’s extremist rule means many remain fearful, despite some attempts to strike a conciliatory tone
Hashimi, the commander, told Reuters that the rights of Afghan women would lie in the hands of a council of Islamic scholars. He outlined a system that bears striking similarities to the Taliban’s previous rule.
Taliban spokesman Zabihullah Mujahid told reporters earlier this week that the Taliban would respect women’s rights within the norms of Islamic law, but he did not elaborate. He also offered a vague pledge to uphold press freedoms, conditioning that on journalists not working “against national values.”
Abdulaziz Sachedina, a religion and politics professor at George Mason University who specializes in Islamic studies, said he thinks it will take time and effort for the Taliban to implement policies related to sharia law.
“It’s easy to say, ‘We’ll implement sharia.’ But it’s not easy to implement,” he said.
Sachedina said sharia law doesn’t offer codified systems for the modern nation-state, such as commercial laws and administrative laws. “There isn’t anything in sharia that says, this is the way you run the state,” he said. “Sharia law is far from the modern nation-state as we know it today.”
Why is sharia controversial in the U.S. and elsewhere?
Some Western public figures have vilified sharia law, pointing to the implementation of physical punishments.
Among conservative politicians and commentators in the United States, fear of legally enforceable sharia law taking hold in the country is widespread, although it plays no role whatsoever in the U.S. legal system. Eleven states have taken proactive steps, enacting laws that would prevent sharia from playing a role in U.S. courts. Sharia is used by individuals and communities of Muslims.
Sharia law has come up in legal challenges across the United States in recent decades because some fear it could override U.S. law. Most legal and religious freedom experts say concerns about sharia law being used in the United States are a misreading of legal realities. They say sharia law is for religious groups to govern their internal workings but would not trump U.S. laws.
Islamic rules governing women’s clothing have been a source of heated debate in some countries, especially interpretations calling on women to wear full burqa coverings. French law regulates Islamic face coverings in public spaces, and other European countries have enacted similar policies.
Interpretations vary across the Muslim world and often within counties. Unlike the Islamic State or leaders in Saudi Arabia, the Taliban identifies as a group of traditional Sunni Muslims who follow the Hanafi school of law, one of the four traditional Sunni schools of Islamic jurisprudence.