By
Moin Qazi, New Age Islam
2 September
2023
Most of the
world's nearly fifty Muslim-majority countries have laws referencing Sharia,
the guidance Muslims believe God provided them on a range of spiritual and
worldly matters. There is great diversity in how governments interpret and
apply Sharia, and people often misunderstand its role in legal systems and the
lives of individuals. There have been, however, several myths which have
distorted Islamic codes. Here is a list of the correct relationship between
Sharia and the rules of Muslim society
What is
Sharia?
The word
sharia means "the path to a watering hole". It denotes an Islamic way
of life that is more than a system of criminal justice. Sharia is a religious
code for living in the same way the Bible offers Christians a moral system. The
religious law of Islam is seen as the expression of God's command for Muslims
and, in application, constitutes a system of duties that are incumbent upon all
Muslims by their religious belief sharīʿah the law represents a divinely
ordained path of conduct that guides Muslims toward a practical expression of
religious conviction in this world and the goal of divine favour in the world
to come., for believing Muslims, Shariah is the ideal realization of divine
justice — a higher law reflecting God's will.
Muslims
have a wide range of beliefs about what Shariah requires in practice. all agree
that humans are imperfect interpreters of God's will. But to ask a faithful
Muslim if they "believe in" Shariah is to ask if they accept God's
word. In effect,
Shariah doesn't simply or exactly mean Islamic
law. It is divine and unchanging, reflecting God's unity and perfection. It can
be found in God's revealed word in the Quran and the divinely guided actions of
the Prophet Muhammad. In contrast, Islamic laws are based on Sharia
interpretations' level of competency nor the length of study necessary to
qualify as a jurist.
Sharia is
derived from two primary sources: the Quran, considered the direct word of God,
and hadith—thousands of sayings and practices attributed to the Prophet
Mohammed that collectively form the Sunna.
However, Sharia primarily comprises the interpretive tradition of Muslim
scholars.
What
Does Sharia Decree?
Sharia
offers a code for living governing all elements of life, from prayers to
fasting to donations to the poor. It decrees that men and women should dress
modestly, which in some countries is interpreted as women taking the veil and
the sexes being segregated. Many states in the Middle East are taking more
elements of Sharia into their state laws.
During the
19th century, the impact of Western civilization on Muslim society brought
about radical changes in civil and commercial transactions and criminal law. In
these areas, the Sharia courts were felt to be wholly out of touch with the
needs of the time, not only because of their system of procedure and evidence
but also because of the substance of the Sharia doctrine, which they were bound
to apply. As a result, Sharia's criminal and general civil law was abandoned in
most Muslim countries and replaced by new codes based on European models. Thus,
with the notable exception of the Arabian Peninsula, where the Sharia is still
formally applied in its entirety, the application of Sharia law in Islam has
been broadly confined, from the beginning of the 20th century, to family law,
including the law of succession at death and the particular institution of waqf
endowments. Islamic law varies by country, is influenced by local customs, and
evolves. Sharia is also the basis of legal opinions called fatwas, which Muslim
scholars issue in response to requests from individual Muslims or governments
seeking guidance on a specific issue. In Sunni Islam, fatwas are strictly
advisory; in Shiite Islam, practitioners must follow the fatwas of their chosen
religious leader.
Is
Sharia An "Islamic Law?"
The most
devout Muslims who conceptually embrace Sharia don't consider it a substitute
for civil law. Sharia is not a book of statutes or judicial precedent imposed
by a government, and it's not a set of regulations adjudicated in court.
Instead, it is a body of Qur'an-based guidance that points Muslims toward
living an Islamic life. It doesn't come from the state, and it doesn't even
come in one book or a single collection of rules.
Sharia is
divine and philosophical. The human interpretation of Sharia is called
"fiqh," or Islamic rules of right action, created by individual
scholars based on the Qur'an and hadith (stories of the Prophet Muhammad's
life). Fiqh means "understanding" — and its many different schools of
thought illustrate that scholars knew they didn't speak for God.
The distinction between Shariah and fiqh
matters especially because Muslims, including religiously traditional Muslims,
do not agree with what Islamic law requires. They're disagreeing about what God
wants, to be sure. But almost all faithful Muslims would say that they believe
there is a single, truthful answer that lies in Shariah — we just cannot be
certain as humans what that answer is.
What Are Hadd Offences?
Within
sharia law, there is a specific set of offences known as the Hadd offences.
These are crimes punished by particular penalties, such as stoning, lashes, or
a hand's severing. The penalties for Hadd violations are not universally
adopted as law in Islamic countries. Hadd offences carry specific penalties set
by the Koran and the Prophet Mohammed. These include unlawful sexual
intercourse (outside marriage), false accusations of illegal intercourse, the
drinking of alcohol, theft, and highway robbery. Sexual offences carry a
penalty of stoning to death or flogging.
Some
countries, such as Saudi Arabia, claim to live under pure Sharia law and
enforce the penalties for Hadd offences. In others, laws. Many Islamic countries will have
adultery and the drinking of alcohol defined as criminal offences in law.
Still, they are not defined as Hadd offences because they do not carry the Hadd
penalty. They are often punishable by a prison term instead.
How Religious Sharia Addresses Tolerance
Some
critics say that Muslim-led states that follow Sharia are particularly
intolerant of nonbelievers or those who practice other religions. Scholars say
this intolerance largely stems from premodern restrictions applied to
non-Muslim minorities in Muslim lands, supported by certain hadiths later
introduced into the Muslim canon that recommend the death penalty for Muslims
who commit apostasy. Nigeria and Pakistan have carried out capital punishment
for blasphemy and apostasy, as did Sudan for many years.
Additionally,
religious minorities in some Muslim countries have fewer rights under modern
laws and are otherwise discriminated against. In Saudi Arabia, for instance,
only Muslims can construct places of worship and pray in public. And other
countries that claim to allow religious freedom—particularly authoritarian
states—don't do so in practice (and routinely deny their citizens rights
regardless of their faith).
What Are
Women's Rights In Sharia
The Quran
states that women are morally and spiritually equal to men but also indicates
that wives and mothers have specific roles in the family and society.
Particular sharia guidance applies specifically to women, and some governments
use Islamic law to restrict women's rights significantly, dictating how they
dress and barring them from or segregating them in specific spaces.
For
example, Iran and Saudi Arabia have Islamic law–based regulations that require
women to wear veils and be accompanied by male guardians [PDF] in public
places. Some Afghans and Western observers fear Afghan women will face similar
restrictions under the Taliban. Critics say these modesty rules create
inequality by limiting women's education and employment opportunities. Other
laws prevent women from initiating divorce and marriage independently,
contributing to child marriages and gender-based violence. Even in some places
where sexist laws have been abolished, attitudes and practices are slow or
resistant to change.
Is There
Scope For Reforming Sharia?
Some Muslim
scholars say the religious tenet of Tajdid allows practices under Sharia
to be modified or eliminated. The concept is one of renewal, an idea suggesting
that Islamic societies should be reformed constantly to remain pure. At the
same time, others consider the purest form of Islam to be the one practised in
the seventh century.
Moreover,
there is significant debate over what the Qur'an sanctions versus what
practices come from local customs. For example, Muslim feminists have long
argued that sexist interpretations of Sharia stem from social norms, not
Islam.
Modern
governments have been known to alter laws considered to be Islamic. Saudi
Arabia cited Islamic law when it granted women the right to drive in 2018. "It's yet another example that a lot of
the rules called Islamic are often local, culturally inflected preferences that
come to have an Islamic veneer."
Government
under God
In countries where Islam is the official
religion, the Constitution designates Sharia as "a source," or
sometimes "the source," of the law. Examples of the former include
Afghanistan and Saudi Arabia, while Bahrain, Kuwait, and the United Arab
Emirates are among those that apply Islamic law in personal but not civil or
criminal matters. In Pakistan, Iran, and Iraq, it is forbidden to enact
legislation antithetical to Islam. Non-Muslims are not expected to obey Sharia;
in most countries, they are under the jurisdiction of special government
committees and adjunct courts.
How Do
Muslim-Minority Countries Approach Sharia?
Some
governments let independent religious authorities apply and adjudicate their
faith's laws in certain situations. For instance, the United Kingdom (U.K.)
allows Islamic tribunals governing marriage, divorce, and inheritance to make
legally binding decisions if both parties agree. Additionally, Muslim-minority
countries such as Australia, Japan, the U.K., and the United States allow
Islamic or Sharia-compliant banking.
Conversely,
officials in certain Muslim-minority countries seek to block Sharia from
influencing state law or practice. Some have prohibited behaviours encouraged
under Sharia, such as veil wearing for women or ritual slaughter to make meat
halal. The ban on wearing veils or headscarves exists in France, where secularism
is part of the national identity, and conspicuous religious symbols are banned
in specific public spaces.
Is
Sharia Anti-Woman
Many
Westerners see Muslim women's head cover as a kind of oppression. A verse in
the Qur'an holds that men are the "protectors" of women. Still, many
contemporary scholars dispute the notion that this suggests women must obey men
or that women are inferior.
While it's
true that many majority-Muslim societies mistreat women, many of these laws,
like Saudi Arabia's ban on female drivers, have no basis in fiqh. In instances
where there is a fiqh origin for modern legislation, that legislation often
cherry-picks specific rules, including more woman-affirming interpretations.
And on various issues, Islam can fairly be described as feminist. Fiqh
scholars, for instance, have concluded that women have the right to orgasm
during sex and to fight in combat. (Women fought alongside the Prophet Muhammad
himself.) Fiqh can also be interpreted as pro-choice, with certain scholars
positing that although abortion is forbidden, first-trimester abortions are not
punishable.
Fiqh
doctrine says a woman's property, held exclusively in her name, cannot be
appropriated by her husband, brother or father. (For centuries, this stood in
stark contrast with women's property rights in Europe.) Muslim women in America
are sometimes shocked to find that, even though they were careful to list their
assets as separate, those can be considered joint assets after marriage. Fiqh
has patriarchal rules, many of which are legislated in modern Muslim-majority
countries.
Is
Sharia About Conquest.
The Qur'an
repeatedly commands Muslims to keep promises and uphold covenants. That
includes treaties among nations and extends to individuals living under
non-Muslim rule. Muslims have lived as minorities in non-Muslim societies since
the beginning of Islam — from Christian Abyssinia to imperial China. And fiqh
scholars have always insisted that Muslims in non-Muslim lands must obey the
laws of those lands and do no harm within host countries. If local law
conflicts with Muslims' sharia obligations? Some scholars say they should
emigrate; others allow them to stay. But none advocate violence or a takeover
of those governments.
Where
Sharia law is applied, it varies too. In Saudi Arabia, there are frequent
executions and amputations, justified by selective reading of the Islamic holy
texts. Elsewhere, such punishments are rarely or never applied. In Saudi
Arabia, too, women may not drive, but here has now been relaxation. In Bangladesh
and Pakistan, they can. As there is no reference to motor vehicles in the
Koran, the decision as to who can or can't drive them has been made by (male)
Islamic scholars. Islamic states have repeatedly made repeated efforts over
centuries to co-opt and control the clergy, frequently with disastrous results.
The Future
Political
Islamists recognize that further legal and administrative regulations must
supplement the classical legal rules derived from the Quran and the Prophet
Muhammad's actions. When they seek to incorporate Shariah into their
constitutions, they usually ask for modern legislation informed by classical
Islamic law and sometimes for a rule that no legislation may violate classical
Islamic legal regulations.
In Saudi
Arabia, where no written constitution exists, classical Islamic legal
principles function as an unwritten, common-law Constitution. But even Saudi
Arabia has a body of administrative regulations that operate a lot like
legislation.
----
Moin Qazi is the author of the bestselling book,
Village Diary of a Heretic Banker. He has worked in the development finance
sector for almost four decades.
URL: https://newageislam.com/islamic-sharia-laws/muslims-minds-sharia/d/130588
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