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 Sharia
Shari'a is the body of Islamic religious law. The term means "way"
or "path to the water source"; it is the legal framework
within which the public and some private aspects of life are
regulated for those living in a legal system based on Muslim
principles of jurisprudence and for Muslims living outside
the domain. It further promotes the islamic way of life
Sharia deals with many aspects of day-to-day life, including
politics, economics, banking, business, contracts, family,
sexuality, hygiene, and social issues.
There is no strictly
static codified set of laws of sharia. Sharia is more of a
system of how law ought to serve humanity, a consensus of
the unified spirit. Based on the Qur'an (the religious text
of Islam), hadith (sayings and doings of Muhammad), (sayings
and doings of the early followers of Muhammad), ijma
(consensus), qiyas (analogy) and centuries of debate,
interpretation and precedent.
Before the 19th century, legal theory was considered the
domain of the traditional legal schools of thought. Most
Sunni Muslims follow Hanafi, Hanbali, Maliki or Shafii,
while most Shia Muslims follow Twelvers (Hallaq 1997, Brown
1996, Aslan 2006).
Etymology
The term sharia itself derives from the noun "shara'a"
, which according to Abdul Mannan Omar's
"Dictionary of the Holy Qur'an" connects to the idea of
"system of divine law; way of belief and practice".[Qur'an
45:18]
Legal scholar L. Ali Khan explains that "the concept of
sharia has been thoroughly confused in legal and common
literature. For some Muslims, sharia consists of the Qur'an
and Sunnah. For others, it also includes classical fiqh.
Most encyclopedias define sharia as law based upon the
Qur'an, the Sunna, and classical fiqh derived from consensus
(ijma) and analogy (qiyas).This definition of sharia
inappropriately lumps together the revealed with the
unrevealed. This blending of sources has created a muddled
assumption that scholarly interpretations are as sacred and
beyond revision as are the Qur'an and the Sunnah. The Qur'an
and the Sunnah constitute the immutable Basic Code, which
should be kept separate from ever-evolving interpretive law
(fiqh). This analytical separation between the Basic Code
and fiqh is necessary to" dissipate confusion around the
term Sharia.
In the context of Islam
Mainstream Islam distinguishes between fiqh (deep
understanding, discernment), which refers to the inferences
drawn by scholars, and sharia, which refers to the
principles that lie behind the fiqh. Scholars hope that fiqh
(jurisprudence) and sharia (law) are in harmony in any given
case, but they cannot be sure.
Sharia has certain laws which are regarded as divinely
ordained, concrete and timeless for all relevant situations
(for example, the ban against drinking liquor as an
intoxicant). It also has certain laws which derived from
principles established by Islamic lawyers and judges (mujtahidun).
Women in Islam
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In terms of religious
obligations, such as certain elements of prayer, payment of
zakat, observance of the Ramadan fast and pilgrimage, women
are treated no differently from men. There are, however,
some exceptions made in the case of prayers and fasting.
Women are not obliged to fast during menstruation,
pregnancy, for forty days after childbirth or while nursing
if there could be any threat to her health or her babies'.
They are also forbidden to perform salat(prayer) during
menstruation.
Islam has no clergy, but women may become religious
scholars. In practice, it is much more common for men to be
scholars than women. Early Muslim scholars such as Abu-Hanifa
and Al-Tabary held that there is nothing wrong with women
holding a post as responsible as that of judge. 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. Islam does not prohibit
women from working, as it says "Treat your women well and be
kind to them for they are your partners and committed
helpers." Married women may seek employment although it is
often thought in patriarchal societies that the woman's role
as a wife and mother should have first priority.
Islam unequivocally allows both single and married women to
own property in their own right. Islam grants to women the
right to inherit property, in contrast with some cultures
where women themselves are considered chattels that can be
inherited. (See widow inheritance.) A daughter's inheritance
is half that of her brothers. A woman's share of inheritance
is completely hers and no one, including her father or
husband, can make any claim on it. However rich a woman may
be, her male relatives in order of closeness are required to
financially support her. It is her prerogative to forgive
the male relatives their obligations of support.
According to Islamic law, a post-pubescent female cannot be
forced to marry anyone without their consent. Besides all
other provisions for her protection at the time of marriage,
it was specifically decreed that a woman has the full right
to her mahr, a marriage gift, which is presented to her by
her husband and is included in the nuptial contract. Some
Muslims believe that a woman can divorce her husband without
resorting to the courts if the nuptial contract allows that.
A Muslim may not marry or remain married to an unbeliever of
either sex [Qur'an 2:221][60:10].
Islamic jurists have traditionally held that Muslim women
may only enter into marriage with Muslim men, although some
contemporary jurists question the basis of this restriction.
On the other hand, the Qur'an explicitly allows Muslim men
to marry any woman of the People of the Book, a term which
includes Jews, Sabians, and Christians. However, fiqh law
has held that it is mukrah (reprehensible) for a Muslim man
to marry a non-Muslim woman in a non-Muslim country.
Sunni Islamic law allows husbands to divorce their wives if
there is a justifiable reason, by clearly saying talaq ("I
divorce you") three times. A divorced couple cannot remarry
if they have been divorced three times, unless the woman has
married and divorced another man in the interim. In 2003 a
Malaysian court ruled that, under Sharia law, a man may
divorce his wife via text messaging as long as the message
was clear and unequivocal. Such a divorce, known as the
"triple talaq" is not allowed in most Muslim states. The
divorced wife always keeps her dowry from when she was
married, and is given child support until the age of
weaning, at which point the father gains automatic custody
of the child. The divorced wife also receives spousal
support for three months after the divorce until it can be
determined whether she is pregnant.
Penalties
In accordance with the Qur'an and several hadith, theft is
punished by imprisonment or amputation of hands or feet,
depending on the number of times it was committed and
depending on the item of theft. However, before the
punishment is executed two eyewitnesses under oath must say
that they saw the person stealing. If these witnesses cannot
be produced then the punishment cannot be carried
out.[citation needed] Witnesses must be either two men, or,
if only one man can be found, one man and two women. Several
requirements are in place for the amputation of hands, so
the actual instances of this are relatively few; they are:
* There must have been criminal intent to take private (not
common) property.
* The theft must not have been the product of hunger,
necessity, or duress.
* The goods stolen must: be over a minimum value, not haraam,
and not owned by the thief's family.
* Goods must have been taken from custody (i.e. not in a
public place).
* There must be reliable witnesses.
* The punishment is carried out even if the thief repents.
[said by Muhammad]
All of these must be met under the scrutiny of judicial
authority. [Qur'an 5:38]
In accordance with hadith, stoning to death is the penalty
for married men and women who commit adultery. In addition,
there are several conditions related to the person who
commits it that must be met. One of the difficult ones is
that the punishment cannot be enforced unless there is a
confession of the person, or four male eyewitnesses who each
saw the act being committed. All of these must be met under
the scrutiny of judicial authority[137] For unmarried men
and women, the punishment prescribed in the Qur'an and
hadith is 100 lashes.
The "four witness" standard comes from the Qur'an itself, a
revelation Muhammad announced in response to accusations of
adultery leveled at his wife, Aisha: "Why did they not
produce four witnesses? Since they produce not witnesses,
they verily are liars in the sight of Allah."[Qur'an 24:13]
Punishments are authorized by other passages in the Qur'an
and hadiths for certain crimes (e.g., extramarital sex,
adultery), and are employed by some as rationale for
extra-legal punitive action while others disagree:
“The woman and the man guilty of adultery or
fornication—flog each of them with hundred stripes: Let no
compassion move you in their case, in a matter prescribed by
God, if ye believe in God and the last day.”[Qur'an 24:2]
“Nor come nigh to adultery: for it is a shameful (deed) and
an evil, opening the road (to other evils).”[Qur'an 17:32]
In most interpretations of Sharia, conversion by Muslims to
other religions, is strictly forbidden and is termed
apostasy. Muslim theology equates apostasy to treason, and
in most 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.
In many Muslim countries, the accusation of apostasy is even
used against non-conventional interpretations of the Qur'an.
The severe persecution of the famous expert in Arabic
literature, Nasr Abu Zayd, is an example of this.
Insulting Muhammad or blasphemy has also resulted in the
death penalty. |
