By Jahanshah Rashidian
January 7, 2014
Sharia or Islamic laws for both civil and penal spheres began to emerge as the new Muslim community grew after the “Hijri”, exude of the Prophet Muhammad and his followers in 622 from Mecca to Medina. Sharia became gradually more necessary for the Prophet to address complex questions of order and Islamic practice. Sharia is today institutionalised with the help of following sources:
Some of the later texts of the Quran deal with limited issues, such as how to pray, what foods and activities to avoid, and how to consider basic relations within family circle and Muslim community. After the Prophet’s death, his successors, Islamic Caliphate, who continued expanding into new territories encountered new cultures and religious communities and thus the Muslim conquers had to confront countless problems previously unknown to them. Since solutions to such problems were not written in the Quran or Hadith, or sayings, Muslim invaders had to improvise, exercising their personal judgments and acting as they believed the Prophet would have done. They strove to perpetuate the Muhammad’s example, his “Sunna”.
Ijma or Consensus
Nevertheless, leading authorities in Medina, and later in other conquered territories, looked for ways to standardize the procedure of extending the application of the Quran and Hadith to changing circumstances. They gradually agreed that one could solve problems not treated directly in the Quran and Hadith by appealing to “actual practice” of the local community or to the “consensus” (Ijma).
Qiyas or Analogy
As time went on, since some questions were too new for any Ijma, scholars had agreed that one could apply a form of reasoning by analogy (Qias) that followed strict rules so as to keep the process as free of personal whim as possible.
Madhhabs or Four Roots
Leading local legal scholars in different cities devised slightly different formulas for using the four roots of the law (Quran, Hadith, Consensus, and Analogy Reasoning) some allowing greater latitude in appealing to the third and forth roots. Four legal methodologies dominant among Sunni Muslims came to be called the “schools” (Madhhabs), in Persian “Mazhab” while several other distinctively Shiite schools developed as well includes jurisprudence of Islamic regimes, especially the one in Iran since 1979. http://en.wikipedia.org/wiki/Madhhab
Who Orders Sharia?
Muslim specialists promote to greater prominence because of their erudition, earning title “Mujtahid”, a male Muslim who can exercise independent investigation of the Madhhabs. In Sunni tradition, the “door of independent investigation” closed by the year 900, making further bold scholarship of the first level unnecessary. According to that classical view, the founders of four major Sunni schools of legal theory were the last Mujtahids.
Sharia in Shiite sect
In the Shiite sect, the highest ranking Ayatollahs, meaning sings of Allah and a title given to leading Shiite scholars, continue to exercise the authority of a Grand Ayatollah or a source of imitation in Shiite Islam: as a, grand Mufti, a scholar in Sunni Islam. It is up to them to offer rulings on controversial or contemporary issues. When new ethics and legal questions arise – a question of artificial life support or some other thorny bio-medical matter, for example – these scholars would search the relevant sources to determine whether the Quran or Hadith might shed light on the precise issue at hand. If the scholar found only vague parallels that offer insufficient evidence to make a firm ruling on the new problem, he would then study further to see whether in the actual practice of Muslim communities there was an approach that might solve the problem. If the problem is too new to have any kind of useful history in the framework of Islam, the scholar might appeal to reasoning by Ijam (Reasoning), looking a link between old sources of Islam, practice and the new problem.
All sources may say nothing about artificial life support, but they have much to say about the nature of Islamic norms and about scholar’s authority to intervene. On the basis of this research, the scholar might then issue a legal advisory called a fatwa. In that statement he would indicate to which of five ethics-legal categories the proposed course of action (say, disconnecting life support in particular case) belonged: forbidden, discouraged, neutral, recommended, or required. See fatwa of death issued by Khomeini against the famous British writer Salman Rushdie for blasphemy and a series of death fatwas against other “enemies of Islam” http://en.wikipedia.org/wiki/List_of_fatwas
In Sunni Islam, acting upon the advisory, the parties to the case might then choose to bring the matter before a religious judge a Qazi”, himself authorized as a “ Grand Mufti” to adjudicate the matter. The outcome of all this study and interpretation is called Sharia, the divinely revealed law of life pre-scribed for all Muslims in anywhere and anytime.
Penal code of Sharia
Within the sphere of penal law, death is warranted for apostasy, what was necessary to make the defeated territories and non-Muslims to convert to Islam. Highway robbery, sexual relation outside marriage of married offenders, met also traditionally death penalty. There is amputation of the hand for theft, 100 lashes for sexual relations, 80 lashes for drinking of an intoxicant or for an unproved accusation of unchastely. Civil offences against the person – homicide for example, or assault – are punishable by retaliation, with the offender subjected to the same treatment as the victim. In such civil cases, only the victim or his family has right to prosecute since the crime is not considered being against the state. Often, the victim will choose monetary compensation (Diyah, “blood money”) in place of retaliation — see the jurisprudence of the Islamic regime in Iran). Iran, Sudan, and Afghanistan under Taliban impose the traditionally penalties as originally enjoined.
Sharia under Islamic regimes
Islam describes Sharia as total way of life, a comprehensive approaches that such an all-encompassing way of life must ultimately be realized under an Islamic state. Therefore, not only in Islamic communities, but also more officially under Islamic regimes, draconian Sharia is practiced. Political Islam refers to early Muslim community, Umma, life under the Prophet Muhammad’s leadership in Medina as the model for Sharia, what of course can inevitably lead to the same totalitarian reign of Muhammad: for example the extremely backward and brutal Taliban, Islamic regime in Iran, al Bashir’s Islamic regime in Sudan… follow Sharia, institutionalising a set of criteria, mostly penal codes, derived from or inspired by those of 14-century-old clan society of Arabia.