“Sharia”的意思、由来-开放百科全书

Traditional theory of Islamic jurisprudence recognizes four sources of sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning), and ijma (juridical consensus).^[2] Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali and Jafari—developed methodologies for deriving sharia rulings from scriptural sources using a process known as ijtihad.^[3]{{sfn|Vikør|2014}} Traditional jurisprudence distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics.^[3]{{sfn|Calder|2009}} Its rulings are concerned with ethical standards as much as with legal norms,{{sfn|Coulson|2012}}{{sfn|Hallaq|2010|p=145}} assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited.^[3]{{sfn|Vikør|2014}}{{sfn|Calder|2009}} Thus, some areas of sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God’s will.{{sfn|Vikør|2014}}

Historically, sharia was interpreted by independent jurists (muftis). Their legal opinions (fatwas) were taken into account by ruler-appointed judges who presided over qāḍī's courts, and by maẓālim courts, which were controlled by the ruler's council and administered criminal law.^[3]{{sfn|Vikør|2014}}{{sfn|Calder|2009}} Non-Muslim (dhimmi) communities had legal autonomy, except in cases of interconfessional disputes, which fell under jurisdiction of qadi's courts.{{sfn|Vikør|2014}} Ottoman rulers achieved additional control over the legal system by promulgating their own legal code (qanun) and turning muftis into state employees.{{sfn|Vikør|2014}} The Ottoman civil code of 1869–1876 was the first partial attempt to codify sharia.{{sfn|Mayer|2009}}

In the modern era, sharia-based criminal laws have been widely replaced by statutes inspired by European models.{{sfn|Vikør|2014}}{{sfn|Otto|2008|p=19}} Judicial procedures and legal education in the Muslim world were likewise brought in line with European practice.{{sfn|Vikør|2014}} While the constitutions of most Muslim-majority states contain references to sharia, its classical rules were largely retained only in personal status (family) laws.{{sfn|Vikør|2014}} Legislative bodies which codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence.{{sfn|Vikør|2014}}{{sfn|Mayer|2009}} The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia, including reinstatement of hudud corporal punishments, such as stoning.{{sfn|Vikør|2014}}{{sfn|Mayer|2009}} In some cases, this resulted in traditionalist legal reform,{{refn|group=note|While the advocacy of hudud punishments has gained symbolic importance, and in theory often involved rejection of the stringent traditional restrictions on their application, in practice, in those few countries where they have been reintroduced, they have often been used sparingly or not at all. Their application has varied depending on local political climate.{{sfn|Vikør|2014}}{{sfn|Otto|2008|p=20}}}} while other countries witnessed juridical reinterpretation of sharia advocated by progressive reformers.{{sfn|Vikør|2014}}{{sfn|Mayer|2009}}{{sfn|Rabb|2009d}}

The role of sharia has become a contested topic around the world. Attempts to impose it on non-Muslims have caused intercommunal violence in Nigeria^[4]^[5] and may have contributed to the breakup of Sudan.{{sfn|Vikør|2014}} Some Muslim-minority countries in Asia, Africa, and Europe recognize the use of sharia-based family laws for their Muslim populations.{{sfn|Otto|2008|pp=18–20}}^[6] Some jurisdictions in North America have passed bans on use of sharia, framed as restrictions on religious or foreign laws.^[12] There are ongoing debates as to whether sharia is compatible with secular forms of government, human rights, freedom of thought, women's rights, LGBT rights, and banking.^[13]^[7]^[8]

Etymology and usage

Contemporary usage

The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality.{{sfn|Calder|Hooker|2007|p=321}} For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith.{{sfn|Calder|Hooker|2007|p=321}} Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims.{{sfn|Calder|Hooker|2007|p=321}} For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to sharia.{{sfn|Vikør|2014}}

Jan Michiel Otto distinguishes four senses conveyed by the term sharia in religious, legal and political discourse:{{sfn|Otto|2008|pp=9–10}}

A related term {{transl|ar|DIN|al-qānūn al-islāmī}} ({{lang|ar|{{large|القانون الإسلامي}}}}, Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.{{sfn|Calder|Hooker|2007|p=323}}

Etymology

The primary range of meanings of the Arabic word šarīʿah, derived from the root š-r-ʕ, is related to religion and religious law.{{sfn|Calder|Hooker|2007|p=321}} The lexicographical tradition records two major areas of use where the word šarīʿah can appear without religious connotation.{{sfn|Calder|Hooker|2007|p=326}} In texts evoking a pastoral or nomadic environment, the word, and its derivatives refer to watering animals at a permanent water-hole or to the seashore, with special reference to animals who come there.{{sfn|Calder|Hooker|2007|p=326}} Another area of use relates to notions of stretched or lengthy.{{sfn|Calder|Hooker|2007|p=326}} This range of meanings is cognate with the Hebrew saraʿ and is likely to be the origin of the meaning "way" or "path".{{sfn|Calder|Hooker|2007|p=326}} Both these areas have been claimed to have given rise to aspects of the religious meaning.{{sfn|Calder|Hooker|2007|p=326}}

Some scholars describe the word šarīʿah as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah ["The Way to Go"]),^[9] or "path to the water hole"^[10]^[18] and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.^[11]

Use in religious texts

In the Quran, šarīʿah and its cognate širʿah occur once each, with the meaning "way" or "path".{{sfn|Calder|Hooker|2007|p=321}} The word šarīʿah was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word torah in the 10th-century Arabic translation of the Torah by Saʿadya Gaon.{{sfn|Calder|Hooker|2007|p=321}} A similar use of the term can be found in Christian writers.{{sfn|Calder|Hooker|2007|p=321}} The Arabic expression Sharīʿat Allāh (شريعة الله "God’s Law") is a common translation for תורת אלוהים (‘God’s Law’ in Hebrew) and νόμος τοῦ θεοῦ (‘God’s Law’ in Greek in the New Testament [Rom. 7: 22]).^[12] In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh, which refers to a scholar's interpretation thereof.{{sfn|Calder|Hooker|2007|p=322}}

Historical origins

According to the traditional Muslim view, there was no "historical development" of Islamic law and its major precepts were all known and passed down directly from the Islamic prophet Muhammad.^[13] The emergence of Islamic jurisprudence (fiqh) also goes back to the lifetime of Muhammad.{{sfn|Vikør|2014}}{{sfn|Calder|2009}} In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith.{{sfn|Vikør|2014}}{{sfn|Calder|2009}} These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifah, Malik ibn Anas, Al-Shafi‘i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools (madhhabs) of Sunni jurisprudence.{{sfn|Calder|2009}}

Modern historians have presented alternative theories of the formation of fiqh.{{sfn|Vikør|2014}}{{sfn|Calder|2009}} At first Western scholars accepted the general outlines of the traditional account.{{sfn|Jokisch|2015}} In the late 19th century, an influential revisionist hypothesis was advanced by Ignac Goldziher and elaborated by Joseph Schacht in the mid-20th century.{{sfn|Calder|2009}} Schacht and other scholars^[14] argued that the local practices of early Muslim communities and earliest efforts at Islamic jurisprudence{{refn|group=note|“... the essential features of old Muhammadan jurisprudence, such as the idea of the `living tradition` of the ancient schools of law [local practices of early Muslim communities]; a body of common doctrine expressing the earliest effort to systematize; legal maxims which often reflect a slightly later stage, and an important nucleus of legal traditions ... it is safe to say that [this] Muhammadan legal science started in the later part of the Umaiyad period, taking the legal practice of the time as its raw material and endorsing, modifying, or rejecting it, ...” ,^[15]}} were based on a variety of sources, not just the ahadith of Muhammad.{{refn|group=note|“In the time of Shafi’i, traditions from the Prophet were already recognized as one of the material bases of Muhammadan law. Their position in the ancient schools of law was, as we have seen, much less certain.”^[16] [...] another example is that an early major works of fiqh — Muwatta Imam Malik (edited by Shaibani) — contains 429 ahadith by Muhammad but 750 by the Companions, Successors and others,^[17] in contrast to later works by al-Bukhari, Muslim, etc. that contain only ahadith by Muhammad}}

Furthermore, most hadith and their chains of transmission were actually created at a later date {{refn|group=note|”a great many traditions in the classical and other collections were put into circulation only after Shafi'i's time; the first considerable body of legal traditions from the Prophet originated towards the middle of the second century, …”^[18]}}

and extended back to Muhammad's companions (despite the efforts of hadith scholars to uncover fabricated isnads), when it became accepted that legal norms must be formally grounded in scriptural sources.{{sfn|Calder|2009}} In his view, the real architect of Islamic jurisprudence was al-Shafi'i (d. 820 CE/204 AH), who formulated this and other elements of classical legal theory in his work al-risala,{{sfn|Calder|2009}}{{sfn|Jokisch|2015}} but who was preceded by a body of Islamic law not based on primacy of ahadith of Muhammad. These accounts gave rise to objections, and modern historians generally adopt more cautious, intermediate positions.{{sfn|Jokisch|2015}}

While the origin of hadith remains a subject of scholarly controversy, it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam.{{sfn|Ziadeh|2009}}{{sfn|Vikør|2014}}{{sfn|Rabb|2009b}} It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified other aspects, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the early Muslim communities.{{sfn|Lapidus|2014|p=125}} Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics.{{sfn|Lapidus|2014|p=125}}{{sfn|Hallaq|2009|pp=31–35}} At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles.{{sfn|Hallaq|2009|pp=31–35}}{{sfn|Vikør|2014}} As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder.{{sfn|Hallaq|2009|pp=31–35}}{{sfn|Vikør|2014}} In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.{{sfn|Vikør|2014}}{{sfn|Lapidus|2014|p=130}}

Traditional jurisprudence (fiqh)

Fiqh is traditionally divided into the fields of uṣūl al-fiqh (lit. the roots of fiqh), which studies the theoretical principles of jurisprudence, and furūʿ al-fiqh (lit. the branches of fiqh), which is devoted to elaboration of rulings on the basis of these principles.{{sfn|Calder|2009}}{{sfn|Schneider|2014}}

Principles of jurisprudence (uṣūl al-fiqh)

Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity.{{sfn|Hallaq|2009|p=15}} However, they believed that use of reason alone is insufficient to distinguish right from wrong, and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad.{{sfn|Hallaq|2009|p=15}}

Traditional theory of Islamic jurisprudence elaborates how scriptures should be interpreted from the standpoint of linguistics and rhetoric.{{sfn|Calder|2009}} It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date.{{sfn|Calder|2009}} In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas).{{sfn|Ziadeh|2009}} It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools.{{sfn|Calder|2009}} This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question.{{sfn|Calder|2009}} The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notion of sunnah to include traditions of the imams.{{sfn|Kamali|1999|pp=121–22}}

Sources of sharia

Ijtihad

The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity).{{sfn|Ziadeh|2009}} A jurist who is qualified to practice ijtihad is known as a mujtahid.{{sfn|Rabb|2009b}} The use of independent reasoning to arrive at a ruling is contrasted with taqlid (imitation), which refers to following the rulings of a mujtahid.{{sfn|Rabb|2009b}} By the beginning of the 10th century, development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted.{{sfn|Rabb|2009b}}{{sfn|Rabb|2009c}} From the 18th century on, leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad, which they saw as a return to the vitality of early Islamic jurisprudence.{{sfn|Rabb|2009c}}

Decision types (aḥkām)

Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong.{{sfn|Coulson|2012}}{{sfn|Hallaq|2010|p=145}} Sharia rulings fall into one of five categories known as “the five decisions” (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām).{{sfn|Vikør|2014}}{{sfn|Schneider|2014}} It is a sin or a crime to perform a forbidden action or not to perform a mandatory action.{{sfn|Vikør|2014}} Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court.{{sfn|Vikør|2014}}{{sfn|Hallaq|2009|p=20}} Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgement from God.{{sfn|Vikør|2014}}{{sfn|Hallaq|2009|p=20}} Jurists disagree on whether the term ḥalāl covers the first three or the first four categories.{{sfn|Vikør|2014}} The legal and moral verdict depends on whether the action is committed out of necessity (ḍarūra) and on the underlying intention (niyya), as expressed in the legal maxim "acts are [evaluated according] to intention."{{sfn|Vikør|2014}}

Aims of sharia and public interest

Maqāṣid (aims or purposes) of sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times.{{sfn|Duderija|2014|pp=2–6}}{{sfn|Brown|2009}}{{sfn|Gleave|2012}} They were first clearly articulated by al-Ghazali (d. 1111), who argued that maslaha was God's general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property.{{sfn|Opwis|2007|p=65}} Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law.{{sfn|Duderija|2014|pp=2–6}}{{sfn|Gleave|2012}} Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning.{{sfn|Duderija|2014|pp=2–6}}{{sfn|Opwis|2007|pp=66–68}} Others regarded them as an independent source of law, whose general principles could override specific inferences based on the letter of scripture.{{sfn|Duderija|2014|pp=2–6}}{{sfn|Opwis|2007|pp=68–69}} While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence.{{sfn|Duderija|2014|pp=2–6}}{{sfn|Ziadeh|2009}}{{sfn|Brown|2009}} These scholars expanded the inventory of maqasid to include such aims of sharia as reform and women's rights (Rashid Rida); justice and freedom (Mohammed al-Ghazali); and human dignity and rights (Yusuf al-Qaradawi).{{sfn|Duderija|2014|pp=2–6}}

Branches of law

The domain of furūʿ al-fiqh (lit. branches of fiqh) is traditionally divided into ʿibādāt (rituals or acts of worship) and muʿāmalāt (social relations).{{sfn|Calder|2009}}{{sfn|Rabb|2009b}} Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries.{{sfn|Hallaq|2009|pp=28-30}} Each of these terms figuratively stood for a variety of subjects.{{sfn|Hallaq|2009|pp=28-30}} For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics.{{sfn|Hallaq|2009|pp=28-30}} Juristic works were arranged as a sequence of such smaller topics, each called a "book" (kitab).{{sfn|Calder|2009}}{{sfn|Hallaq|2009|pp=28-30}} The special significance of ritual was marked by always placing its discussion at the start of the work.{{sfn|Calder|2009}}{{sfn|Hallaq|2009|pp=28-30}}

Some historians distinguish a field of Islamic criminal law, which combines several traditional categories.{{sfn|Vikør|2014}}{{sfn|Ziadeh|2009c}}{{sfn|Schneider|2014}} Several crimes with scripturally prescribed punishments are known as hudud.{{sfn|Vikør|2014}} Jurists developed various restrictions which in many cases made them virtually impossible to apply.{{sfn|Vikør|2014}} Other crimes involving intentional bodily harm are judged according to a version of lex talionis that prescribes a punishment analogous to the crime (qisas), but the victims or their heirs may accept a monetary compensation (diya) or pardon the perpetrator instead; only diya is imposed for non-intentional harm.{{sfn|Vikør|2014}}{{sfn|Ziadeh|2009c}} Other criminal cases belong to the category of taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge's discretion.{{sfn|Vikør|2014}}{{sfn|Ziadeh|2009c}} In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia.{{sfn|Calder|2009}}{{sfn|Ziadeh|2009c}}

The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary).{{sfn|Calder|2009}} Mukhtasars were short specialized treatises or general overviews that could be used in a classroom or consulted by judges.{{sfn|Calder|2009}}{{sfn|Vikør|2014}}{{sfn|Hallaq|2009|pp=10-11}} A mabsut, which usually provided a commentary on a mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions.{{sfn|Calder|2009}}{{sfn|Hallaq|2009|pp=10-11}} The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance.{{sfn|Calder|2009}} At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions.{{sfn|Hallaq|2009|pp=10-11}} Other juristic genres include the qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar.{{sfn|Vikør|2014}}

Classical jurisprudence has been described as "one of the major intellectual achievements of Islam"^[19] and its importance in Islam has been compared to that of theology in Christianity.{{refn|group=note|"What theology is for the Christian, law is for the Muslim."^[20] referenced in ^[21]}}

Schools of law

The main Sunni schools of law (madhhabs) are the Hanafi, Maliki, Shafi'i and Hanbali madhhabs.{{sfn|Rabb|2009b}} They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab.{{sfn|Hussin|2014}} These four schools recognize each other's validity and they have interacted in legal debate over the centuries.{{sfn|Hussin|2014}}{{sfn|Rabb|2009b}} Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world.{{sfn|Hussin|2014}}{{sfn|Rabb|2009b}} For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia.{{sfn|Hussin|2014}}{{sfn|Rabb|2009b}}{{sfn|Vikør|2014}} The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs.{{sfn|Calder|2009}} The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought.{{sfn|Calder|2009}}{{sfn|Rabb|2009b}}{{sfn|Hussin|2014}} The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools.{{sfn|Calder|2009}}{{sfn|Vikør|2014}} The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.{{sfn|Rabb|2009b}}

The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system.{{sfn|Hussin|2014}} Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system.{{sfn|Hussin|2014}} State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question).{{sfn|Hussin|2014}} Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws.{{sfn|Hussin|2014}} Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence.{{sfn|Hussin|2014}} The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.{{sfn|Hussin|2014}} Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.{{sfn|Hussin|2014}}

Pre-modern Islamic legal system

Jurists

Sharia was traditionally interpreted by muftis. During the first few centuries of Islam, muftis were private legal specialists who normally also held other jobs. They issued fatwas (legal opinions), generally free of charge, in response to questions from laypersons or requests for consultation coming from judges, which would be stated in general terms. Fatwas were regularly upheld in courts, and when they were not, it was usually because the fatwa was contradicted by a more authoritative legal opinion.{{sfn|Hallaq|2009|pp=9-10,13}} The stature of jurists was determined by their scholarly reputation.{{sfn|Hallaq|2009|pp=9-10}}{{sfn|Stewart|2013|p=499}} The majority of classical legal works, written by author-jurists, were based in large part on fatwas of distinguished muftis.{{sfn|Hallaq|2009|pp=9-10}} These fatwas functioned as a form of legal precedent, unlike court verdicts, which were valid only for the given case.{{sfn|Hallaq|2010|p=180}} Although independent muftis never disappeared, from the 12th century onward Muslim rulers began to appoint salaried muftis to answer questions from the public.{{sfn|Stewart|2013|p=501}} Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, while Shia jurists in Iran progressively asserted an autonomous authority starting from the early modern era.{{sfn|Dallal|Hendrickson|2009}}

Islamic law was initially taught in study circles that gathered in mosques and private homes. The teacher, assisted by advanced students, provided commentary on concise treatises of law and examined the students' understanding of the text. This tradition continued to be practiced in madrasas, which spread during the 10th and 11th centuries.{{sfn|Hallaq|2009|pp=45-47}}{{sfn|Lapidus|2014|p=217}} Madrasas were institutions of higher learning devoted principally to study of law, but also offering other subjects such as theology, medicine, and mathematics. The madrasa complex usually consisted of a mosque, boarding house, and a library. It was maintained by a waqf (charitable endowment), which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. At the end of a course, the professor granted a license (ijaza) certifying a student's competence in its subject matter.{{sfn|Lapidus|2014|p=217}} Students specializing in law would complete a curriculum consisting of preparatory studies, the doctrines of a particular madhhab, and training in legal disputation, and finally write a dissertation, which earned them a license to teach and issue fatwas.{{sfn|Stewart|2013|p=501}}{{sfn|Hallaq|2009|pp=45-47}}

Courts

A judge (qadi) was in charge of the qadi's court (mahkama), also called the sharia court. Qadis were trained in Islamic law, though not necessarily to a level required to issue fatwas.{{sfn|Vikør|2014}}{{sfn|Hallaq|2009|pp=11-12}} Court personnel also included a number of assistants performing various roles.{{sfn|Hallaq|2010|p=158}} Judges were theoretically independent in their decisions, though they were appointed by the ruler and often experienced pressure from members of the ruling elite where their interests were at play.{{sfn|Stewart|2013|p=501}} The role of qadis was to evaluate the evidence, establish the facts of the case, and issue a verdict based on the applicable rulings of Islamic jurisprudence.{{sfn|Vikør|2014}} The qadi was supposed to solicit a fatwa from a mufti if it was unclear how the law should be applied to the case.{{sfn|Vikør|2014}}{{sfn|Rabb|2009}} Since Islamic legal theory does not recognize the distinction between private and public law, court procedures were identical for civil and criminal cases, and required a private plaintiff to produce evidence against the defendant. The main type of evidence was oral witness testimony. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases.{{sfn|Vikør|2014}} Most historians believe that because of these stringent procedural norms, qadi's courts at an early date lost their jurisdiction over criminal cases, which were instead handled in other types of courts.{{sfn|Tillier|2014}}

If an accusation did not result in a verdict in a qadi's court, the plaintiff could often pursue it in another type of court called the mazalim court, administered by the ruler's council.{{sfn|Vikør|2014}} The rationale for mazalim (lit. wrongs, grievances) courts was to address the "wrongs" that sharia courts were unable to address, including complaints against government officials. Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler.{{sfn|Vikør|2014}}{{sfn|Stewart|2013|p=501}} Mazalim verdicts were supposed to conform to the "spirit" of sharia, but the they were not bound by the letter of the law or the procedural restrictions of qadi's courts.{{sfn|Vikør|2014}}{{sfn|Rabb|2009}}

The police (shurta), which took initiative in preventing and investigating crime, operated its own courts.{{sfn|Stewart|2013|p=501}} Like the mazalim courts, police courts were not bound by the rules of sharia and had the powers to inflict discretionary punishments.{{sfn|Tillier|2014}} Another office for maintaining public order was the muhtasib (market inspector), who was charged with preventing fraud in economic transactions and infractions against public morality.{{sfn|Stewart|2013|p=501}} The muhtasib took an active role in pursuing these types of offenses and meted out punishments based on local custom.{{sfn|Tillier|2014}}

Socio-political context

The social fabric of pre-modern Islamic societies was largely defined by close-knit communities organized around kinship groups and local neighborhoods. Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community. Court litigation was seen as a last resort for cases where informal mediation had failed. This attitude was reflected in the legal maxim "amicable settlement is the best verdict" (al-sulh sayyid al-ahkam). In court disputes, qadis were generally less concerned with legal theory than with achieving an outcome that enabled the disputants to resume their previous social relationships. This could be accomplished by avoiding a total loss for the losing side or simply giving them a chance to articulate their position in public and obtain a measure of psychological vindication.{{sfn|Hallaq|2009|pp=57-60}}{{sfn|Hallaq|2009b|pp=159-162}} Islamic law required judges to be familiar with local customs, and they exercised a number of other public functions in the community, including mediation and arbitration, supervision of public works, auditing waqf finances, and looking after the interests of orphans.{{sfn|Hallaq|2009|pp=11-12}}{{sfn|Tillier|2014}}

Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers. The law derived its authority not from political control, but rather from the collective doctrinal positions of the legal schools (madhhabs) in their capacity as interpreters of the scriptures. The ulema (religious scholars) were involved in management of communal affairs and acted as representatives of the Muslim population vis-à-vis the ruling dynasties, who before the modern era had limited capacity for direct governance.{{sfn|Hallaq|2010|pp=166-167}} Military elites relied on the ulema for religious legitimation, with financial support for religious institutions being one of the principal means through which these elites established their legitimacy.{{sfn|Berkey|2003|pp=225-226}}{{sfn|Hallaq|2010|pp=166-167}} In turn, the ulema depended on the support of the ruling elites for the continuing operation of religious institutions. Although the relationship between secular rulers and religious scholars underwent a number of shifts and transformations in different times and places, this mutual dependence characterized Islamic history until the start of the modern era.{{sfn|Hodgson|1974|pp=176–177}}{{sfn|Hallaq|2010|pp=166-167}} Additionally, since sharia contained few provisions in several areas of public law, Muslim rulers were able to legislate various collections of economic, criminal and administrative laws outside the jurisdiction of Islamic jurists, the most famous of which is the qanun promulgated by Ottoman sultans beginning from the 15th century.{{sfn|Stewart|2013|p=500}}

Women, non-Muslims, slaves

In both the rules of civil disputes and application of penal law, classical sharia distinguishes between men and women, between Muslims and non-Muslims, and between free persons and slaves.{{sfn|Vikør|2014}}

Traditional Islamic law assumes a patriarchal society with a man at the head of the household.{{sfn|Stewart|2013|p=502}} Different legal schools formulated a variety of legal norms which could be manipulated to the advantage of men or women,{{sfn|Lapidus|Salaymeh|2014|p=212}} but women were generally at a disadvantage with respect to the rules of inheritance, blood money (diya), and witness testimony, where a woman's value is effectively treated as half of that of a man.{{sfn|Stewart|2013|p=502}} In economic terms women enjoyed greater advantages under Islamic law than under other Mediterranean and Middle Eastern legal systems,{{sfn|Lapidus|Salaymeh|2014|p=212}} including the right to own personal property and dispose of it freely, which women in the West did not possess until "quite recently".{{sfn|Stewart|2013|p=502}} Various financial obligations imposed on the husband acted as a deterrent against unilateral divorce and commonly gave the wife financial leverage in divorce proceedings.{{sfn|Lapidus|Salaymeh|2014|p=212}} Women were active in sharia courts as both plaintiffs and defendants in a wide variety of cases, though some opted to be represented by a male relative.{{sfn|Lapidus|Salaymeh|2014|p=213}}{{sfn|Vikør|2014}}

Sharia was intended to regulate affairs of the Muslim community.{{sfn|Vikør|2014}} Non-Muslims residing under Islamic rule had the legal status of dhimmi, which entailed a number of protections, restrictions, freedoms and legal inequalities, including payment of the jizya tax.{{sfn|Nettler|2009}} Dhimmi communities had legal autonomy to adjudicate their internal affairs. Cases involving litigants from two different religious groups fell under jurisdiction of sharia courts,{{sfn|Vikør|2014}} where testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases{{sfn|Masters|2009}} or at all.{{sfn|Lapidus|2014|p=351}} This legal framework was implemented with varying degree of rigor. In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation.{{sfn|Vikør|2014}} The Mughal emperor Aurangzeb imposed Islamic law on all his subjects, while his successors are said to have abolished jizya.{{sfn|Jones-Pauly|2009}}{{sfn|Hardy|1991|p=566}} According to Ottoman records, non-Muslim women took their cases to a sharia court when they expected a more favorable outcome on marital, divorce and property questions than in Christian and Jewish courts.{{sfn|Lapidus|Salaymeh|2014|p=360}}

Classical fiqh acknowledges and regulates slavery as a legitimate institution.{{sfn|Stewart|2013|p=502}} It granted slaves certain rights and protections, improving their status relative to Greek and Roman law, and restricted the scenarios under which people could be enslaved.{{sfn|Lewis|1992|p=7}}{{sfn|El Achi|2018}} However, slaves could not inherit or enter into a contract, and were subject to their master's will in a number of ways.{{sfn|Lewis|1992|p=7}}{{sfn|El Achi|2018}} The labor and property of slaves were owned by the master, who was also entitled to sexual submission of his unmarried slaves.{{sfn|El Achi|2018}}{{sfn|Ali|2010|p=39}}

Formal legal disabilities for some groups coexisted with a legal culture that viewed sharia as a reflection of universal principles of justice, which involved protection of the weak against injustices committed by the strong. This conception was reinforced by the historical practice of sharia courts, where peasants "almost always" won cases against oppressive landowners, and non-Muslims often prevailed in disputes against Muslims, including such powerful figures as the governor of their province.{{sfn|Hallaq|2009|p=61}}{{sfn|Hallaq|2009b|p=167}} In family matters the sharia court was seen as a place where the rights of women could be asserted against their husband's transgressions.{{sfn|Vikør|2014}}

Modern legal reforms

Under colonial rule

Starting from the 17th century, European powers began to extend political influence over lands ruled by Muslim dynasties, and by the end of the 19th century, much of the Muslim world came under colonial domination. The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations.{{sfn|Hallaq|2010|p=174}} Islamic commercial laws were also replaced by European (mostly French) laws in Muslim states which retained formal independence, because these states increasingly came to rely on Western capital and could not afford to lose the business of foreign merchants who refused to submit to Islamic regulations.{{sfn|Vikør|2014}}

The first significant changes to the legal system of British India were initiated in the late 18th century by the governor of Bengal Warren Hastings. Hastings' plan of legal reform envisioned a multi-tiered court system for the Muslim population, with a middle tier of British judges advised by local Islamic jurists, and a lower tier of courts operated by qadis. Hastings also commissioned a translation of the classic manual of Hanafi fiqh, Al-Hidayah, from Arabic into Persian and then English, later complemented by other texts.{{sfn|Hallaq|2010|p=176-181}}{{sfn|Masud|2009}} These translations enabled British judges to pass verdicts in the name of Islamic law based on a combination of sharia rules and common law doctrines, and eliminated the need to rely on consultation by local ulema, whom they mistrusted. In the traditional Islamic context, a concise text like Al-Hidayah would be used as a basis for classroom commentary by a professor, and the doctrines thus learned would be mediated in court by judicial discretion, consideration of local customs and availability of different legal opinions that could fit the facts of the case. The British use of Al-Hidayah, which amounted to an inadvertent codification of sharia, and its interpretation by judges trained in Western legal traditions anticipated later legal reforms in the Muslim world.{{sfn|Hallaq|2010|p=176-181}}{{sfn|Stewart|2013|p=503}}

British administrators felt that sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed".{{sfn|Hallaq|2010|p=176-181}} In the course of the 19th century, criminal laws and other aspects of the Islamic legal system in India were supplanted by British law, with the exception of sharia rules retained in family laws and some property transactions.{{sfn|Hallaq|2010|p=176-181}}{{sfn|Masud|2009}} Among other changes, these reforms brought about abolition of slavery, prohibition of child marriage, and a much more frequent use of capital punishment.{{sfn|Hallaq|2009b|p=378}}{{sfn|Masud|2009}} The resulting legal system, known as Anglo-Muhammadan law, was treated by the British as a model for legal reforms in their other colonies. Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice. This, together with their conception of Islamic law as a collection of inflexible rules, led to an emphasis on traditionalist forms of sharia that were not rigorously applied in the pre-colonial period and served as a formative influence on the modern identity politics of the Muslim world.{{sfn|Masud|2009}}

Ottoman empire

During the colonial era, Muslim rulers concluded that they could not resist European pressure unless they modernized their armies and built centrally administered states along the lines of Western models. In the Ottoman empire, the first such changes in the legal sphere involved placing formely independent waqfs under state control. This reform, passed in 1826, enriched the public treasury at the expense of the waqfs, thereby depleting the financial support for traditional Islamic legal education. Over the second half of the 19th century, a new hierarchical system of secular courts was established to supplement and eventually replace most religious courts. Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects.{{sfn|Hallaq|2010|pp=174-176}} The Tanzimat reforms of the 19th century saw reorganization of both Islamic civil law and sultanic criminal law after the model of the Napoleonic Code.{{sfn|Rabb|2009b}} In the 1870s, a codification of civil law and procedure (excepting marriage and divorce), called the Mecelle, was produced for use in both sharia and secular courts. It adopted the Turkish language for the benefit of the new legal class who no longer possessed competence in the Arabic idiom of traditional jurisprudence. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". The Mecelle was promulgated as a qanun (sultanic code), which represented an unprecedented assertion of the state's authority over Islamic civil law, traditionally the preserve of the ulema.{{sfn|Hallaq|2010|pp=174-176}} The 1917 Ottoman Law of Family Rights adoped an innovative approach of drawing rules from minority and majority opinions of all Sunni madhhabs with a modernizing intent.{{sfn|Mayer|2009}} The Republic of Turkey, which emerged after the dissolution of the Ottoman Empire, abolished its sharia courts and replaced Ottoman civil laws with the Swiss Civil Code,{{sfn|Rabb|2009b}} but Ottoman civil laws remained in force for several decades in Jordan, Lebanon, Palestine, Syria, and Iraq.{{sfn|Mayer|2009}}{{sfn|Rabb|2009b}}

Nation states

Westernization of legal institutions and expansion of state control in all areas of law, which began during the colonial era, continued in nation states of the Muslim world.{{sfn|Hallaq|2010|pp=182-183}} Sharia courts at first continued to exist alongside state courts as in earlier times, but the doctrine that sultanic courts should implement the ideals of sharia was gradually replaced by legal norms imported from Europe. Court procedures were also brought in line with European practice. Though the Islamic terms qadi and mahkama (qadi's/sharia court) were preserved, they generally came to mean judge and court in the Western sense. While in the traditional sharia court all parties represented themselves, in modern courts they are represented by professional lawyers educated in Western-style law schools, and the verdicts are subject to review in an appeals court. In the 20th century, most countries abolished a parallel system of sharia courts and brought all cases under a national civil court system.{{sfn|Vikør|2014}}

In most Muslim-majority countries, traditional rules of classical fiqh have been largely preserved only in family law. In some countries religious minorities such as Christians or Shia Muslims have been subject to separate systems of family laws.{{sfn|Vikør|2014}} Many Muslims today believe that contemporary sharia-based laws are an authentic representation of the pre-modern legal tradition. In reality, they generally represent the result of extensive legal reforms made in the modern era.{{sfn|Hallaq|2010|pp=182-183}} As traditional Islamic jurists lost their role as authoritative interpreters of the laws applied in courts, these laws were codified by legislators and administered by state systems which employed a number of devices to effect changes,{{sfn|Vikør|2014}} including:

The most powerful influence on liberal reformist thought came from the work of the Egyptian Islamic scholar Muhammad ʿAbduh (1849–1905). Abduh viewed only sharia rules pertaining to religious rituals as inflexible, and argued that the other Islamic laws should be adapted based on changing circumstances in consideration of social well-being. Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence.{{sfn|Mayer|2009}} He championed a creative approach to ijtihad that involved direct interpretation of scriptures as well as the methods of takhayyur and talfiq.{{sfn|Calder|2009}}{{sfn|Mayer|2009}}

One of the most influential figures in modern legal reforms was the Egyptian legal scholar Abd El-Razzak El-Sanhuri (1895–1971), who possessed expertise in both Islamic and Western law. Sanhuri argued that reviving Islamic legal heritage in a way that served the needs of contemporary society required its analysis in light of the modern science of comparative law. He drafted the civil codes of Egypt (1949) and Iraq (1951) based on a variety of sources, including classical fiqh, European laws, existing Arab and Turkish codes, and the history of local court decisions.{{sfn|Mayer|2009}}{{sfn|Jones-Pauly|2009}} Sanhuri's Egyptian code incorporated few classical sharia rules, but he drew on traditional jurisprudence more frequently for the Iraqi code.{{sfn|Jones-Pauly|2009}} Sanhuri's codes were subsequently adopted in some form by most Arab countries.{{sfn|Mayer|2009}}

Aside from the radical reforms of Islamic family law carried out in Tunisia (1956) and Iran (1967), governments often preferred to make changes that made a clear break from traditional sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage. Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of Quranic shares.{{sfn|Mayer|2009}}{{sfn|Jones-Pauly|2009}} Some reforms have faced strong conservative opposition. For example, the 1979 reform of Egyptian family law promulgated by Anwar Sadat through presidential decree provoked an outcry and was annulled in 1985 by the supreme court on procedural grounds, to be later replaced by a compromise version.{{sfn|Mayer|2009}} The 2003 reform of Moroccan family law, which sought to reconcile universal human rights norms and the country's Islamic heritage, was drafted by a commission that included parliamentarians, religious scholars and feminist activists, and the result has been praised by international rights groups as an example of "progressive" legislation achieved within an Islamic framework.{{sfn|Rabb|2009d}}{{sfn|Mayer|2009}}

Islamization

The Islamic revival of the late 20th century brought the topic of sharia to international attention in the form of numerous political campaigns in the Muslim world calling for full implementation of sharia.{{sfn|Vikør|2014}}{{sfn|Stewart|2013|pp=503-504}} A number of factors have contributed to the rise of these movements, classified under the rubric of Islamism or political Islam, including the failure of authoritarian secular regimes to meet the expectations of their citizens, and a desire of Muslim populations to return to more culturally authentic forms of socio-political organization in the face of a perceived cultural invasion from the West.{{sfn|Stewart|2013|pp=503-504}}{{sfn|Lapidus|2014|p=835}} Islamist leaders such as Ayatollah Khomeini drew on leftist anticolonialist rhetoric by framing their call for sharia as a resistance struggle. They accused secular leaders of corruption and predatory behavior, and claimed that a return to sharia would replace despotic rulers with pious leaders striving for social and economic justice. In the Arab world these positions are often encapsulated in the slogan "Islam is the solution" (al-Islam huwa al-hall).{{sfn|Stewart|2013|pp=503-504}}

Full implementation of sharia theoretically refers to expanding its scope to all fields of law and all areas of public life.{{sfn|Vikør|2014}} In practice, Islamization campaigns have focused on a few highly visible issues associated with the conservative Muslim identity, particularly women's hijab and the hudud criminal punishments (whipping, stoning and amputation) prescribed for certain crimes.{{sfn|Stewart|2013|pp=503-504}} For many Islamists, hudud punishments are at the core of the divine sharia because they are specified by the letter of scripture rather than by human interpreters. Modern Islamists have often rejected, at least in theory, the stringent procedural constraints developed by classical jurists to restrict their application.{{sfn|Vikør|2014}} To the broader Muslim public, the calls for sharia often represent, even more than any specific demands, a vague vision of their current economic and political situation being replaced by a "just utopia".{{sfn|Lapidus|2014|p=835}}

A number of legal reforms have been made under the influence of these movements, starting from the 1970s when Egypt and Syria amended their constitutions to specify sharia as the basis of legislation.{{sfn|Stewart|2013|pp=503-504}} The Iranian Revolution of 1979 represented a watershed for Islamization advocates, demonstrating that it was possible to replace a secular regime with a theocracy.{{sfn|Stewart|2013|pp=503-504}} Several countries, including Iran, Pakistan, Sudan, and some Nigerian states have incorporated hudud rules into their criminal justice systems, which, however, retained fundamental influences of earlier Westernizing reforms.{{sfn|Vikør|2014}}{{sfn|Mayer|2009}} In practice, these changes were largely symbolic, and aside from some cases brought to trial to demonstrate that the new rules were being enforced, hudud punishments tended to fall into disuse, sometimes to be revived depending on the local political climate.{{sfn|Vikør|2014}}{{sfn|Otto|2008|p=20}} The supreme courts of Sudan and Iran have rarely approved verdicts of stoning or amputation, and the supreme courts of Pakistan and Nigeria have never done so.{{sfn|Otto|2008|p=20}} Nonetheless, Islamization campaigns have also had repercussions is several other areas of law, leading to curtailment of rights of women and religious minorities, and in the case of Sudan contributing to the breakout of a civil war.{{sfn|Mayer|2009}}

Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern sharia-based "Islamic state" should take. This is particularly the case for the theorists of Islamic economics and Islamic finance, who have advocated both free-market and socialist economic models.{{sfn|Mayer|2009}} The notion of "sharia-compliant" finance has become an active area of doctrinal innovation and its development has had a major impact on business operations around the world.{{sfn|Stewart|2013|pp=503-504}}

Application

Application by country

Most Muslim-majority countries incorporate sharia at some level in their legal framework, with many calling it a source or the source of the law in their constitution.^[22]^[23] Most use sharia-based legislation in personal status laws (marriage, divorce, domestic violence, child support, inheritance, etc.)^[24]{{sfn|Khadduri|Liebesny|1955|p={{page needed|date=April 2016}}}}

Countries in the Muslim world generally have criminal codes influenced by French law or common law, and in some cases a combination of Western legal traditions. Saudi Arabia has never adopted a criminal code and Saudi judges still follow traditional Hanbali jurisprudence. In the course of Islamization campaigns, several countries (Libya, Pakistan, Iran, Sudan, Mauritania, and Yemen) inserted Islamic criminal laws into their penal codes, which were otherwise based on Western models. In some countries only hudud penalties were added, while others also enacted provisions for qisas (law of retaliation) and diya (monetary compensation). Iran subsequently issued a new "Islamic Penal Code". The criminal codes of Afghanistan and United Arab Emirates contain a general provision that certain crimes are to be punished according to Islamic law, without specifying the penalties. Some Nigerian states have also enacted Islamic criminal laws. Laws in the Indonesian province of Aceh provide for application of discretionary (ta'zir) punishments for violation of Islamic norms, but explicitly exclude hudud and qisas.{{sfn|Tellenbach|2015|pp=249-250}} Brunei has been implementing a "Sharia Penal Code", which includes provisions for stoning and amputation, in stages since 2014.^[25]^[26] The countries where hudud penalties are legal do not use stoning and amputation routinely, and generally apply other punishments instead.{{sfn|Vikør|2014}}{{sfn|Otto|2008|p=20}}{{sfn|Brown|2017}}

Sharia also plays a role beyond religious rituals and personal ethics in some countries with Muslim minorities. For example, in Israel sharia-based family laws are administered for the Muslim population by the Ministry of Justice through the Sharia Courts.^[27] In India, the Muslim Personal Law (Shariat) Application Act provides for the use of Islamic law for Muslims in several areas, mainly related to family law.^[28] In England, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, though this limited adoption of sharia is controversial.^[29]^[30]^[31]

Legal and court proceedings

Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. In Saudi Arabia and Qatar, which have preserved traditional procedure in sharia courts, trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents^[32] under the principle of stare decisis,^[33] and unlike civil law, sharia is left to the interpretation in each case and has no formally codified universal statutes.^[34]

The rules of evidence in sharia courts traditionally prioritize oral testimony, and witnesses must be Muslim.^[35] Male Muslim witnesses are deemed more reliable than female Muslim witnesses, and non-Muslim witnesses considered unreliable and receive no priority in a sharia court.^[36]^[37] In civil cases in some countries, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.^[46]^[47] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of sharia, such as those found in Hanbali jurisprudence, which forms the basis of law in Saudi Arabia.^[35]

Criminal cases

A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible in sharia traditional sharia courts for hudud crimes, i.e., the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft.^[38]^[39]{{sfn|Otto|2008|p=663}}{{sfn|Otto|2008|p=31}} According to classical jurisprudence, testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male.^[40] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence may likewise rejected in hudud cases in favor of eyewitnesses in some modern interpretations. In the case of regulations that were part of local Malaysian legislation that did not go into effect, this could cause severe difficulties for women plaintiffs in rape cases.^[41]^[42] In Pakistan, DNA evidence is rejected in paternity cases on the basis of legislation that favors the presumption of children's legitimacy, while in sexual assault cases DNA evidence is regarded as equivalent to expert opinion and evaluated on a case-by-case basis.^[43]

Civil cases

Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice (Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a sharia court as a form of debt. Written contracts were traditionally considered paramount in sharia courts in the matters of dispute that are debt-related, which includes marriage contracts.^[45] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.^[57]

In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses historically triumphed over written contracts. Islamic jurists traditionally held that written commercial contracts may be forged.^[46]^[47] Timur Kuran states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim-majority nations and communities.^[47]^[48]

In lieu of written evidence, oaths are traditionally accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.^[49] Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often "maintain their testimony right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case."^[50] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;^[50] instead oaths are a solemn procedure performed as a final part of the evidence process.{{citation needed|date=July 2016}}

Diya

In classical jurisprudence monetary compensation for bodily harm (diya or blood money) is assessed differently for different classes of victims. For example, for Muslim women the amount was half that assessed for a Muslim man.^[51]^[52] Diya for the death of a free Muslim man is twice as high as for Jewish and Christian victims according to the Maliki and Hanbali madhhabs and three times as high according to Shafi'i rules.^[67] Several legals schools assessed diya for Magians (majus) at one-fifteenth the value of a free Muslim male.^[53]

Modern countries which incorporate classical diya rules into their legal system treat them in different ways. The Pakistan Penal Code modernized the Hanafi doctrine by eliminating distinctions between Muslims and non-Muslims.^[54] In Iran, diya for non-Muslim victims professing one of the faiths protected under the constitution (Jews, Christians, and Zoroastrians) was made equal to diya for Muslims in 2004,^[55] though according to a 2006 US State Department report, the penal code still discriminates against other religious minorities and women.^[56] According to Human Rights Watch and the US State Department, in Saudi Arabia Jewish or Christian male plaintiffs are entitled to half the amount a Muslim male would receive, while for all other non-Muslim males the proportion is one-sixteenth.^[57]^[58]^[59]

Hisba and religious police

The classical doctrine of hisba, associated with the Quranic injunction of enjoining good and forbidding wrong, refers to the duty of Muslims to promote moral rectitude and intervene when another Muslim is acting wrongly.{{sfn|Thielmann|2017}}{{sfn|Mack|2018}} Historically, its legal implementation was entrusted to a public official called muhtasib (market inspector), who was charged with preventing fraud, disturbance of public order and infractions against public morality. This office disappeared in the modern era everywhere in the Muslim world, before being revived in Saudi Arabia in the form of a government committee responsible for supervising markets and public order. It has been aided by volunteers (mutaween), who enforced attendance of daily prayers and gender segregation in public places,{{sfn|Thielmann|2017}} and had powers to detain violators before a recent reform.{{sfn|Chan|2016}} With the rising international influence of Wahhabism, the conception of hisba as an individual obligation to police religious observance has become more widespread, which led to the appearance of activists around the world who urge fellow Muslims to observe Islamic rituals, dress code, and other aspects of sharia.{{sfn|Thielmann|2017}}

In Iran, hisba was enshrined in the constitution after the 1979 Revolution as a "universal and reciprocal duty", incumbent upon both the government and the people. Its implementation has been carried out by official committees as well as volunteer forces (basij).{{sfn|Thielmann|2017}}^[61] Elsewhere, policing of various interpretations of sharia-based public morality has been carried out in the Nigerian state of Kano,^[62] by Polisi Perda Syariah Islam in the Aceh province of Indonesia,^[63], by the Committee for the Propagation of Virtue and the Prevention of Vice in the Gaza Strip, and by the Taleban during their 1996-2001 rule of Afghanistan.{{sfn|Thielmann|2017}} Hisba has also been invoked in several Muslim-majority countries as rationale for blocking pornographic content on the internet and for other forms of faith-based censorship.^[64]

In Egypt, a law based on the doctrine of hisba had for a time allowed a Muslim to sue another Muslim over beliefs that may harm society, though because of abuses it has been amended so that only the state prosecutor may bring suit based on private requests.^[65] Before the amendment was passed, a hisba suit brought by a group of Islamists against the liberal theologian Nasr Abu Zayd on charges of apostasy led to annulment of his marriage.^[66]^[67] The law was also invoked in an unsuccessful blasphemy suit against the feminist author Nawal El Saadawi.^[65]

Support and opposition

Support

A 2013 survey based on interviews of 38,000 Muslims, randomly selected from urban and rural parts in 39 countries using area probability designs, by the Pew Forum on Religion and Public Life found that a majority—in some cases "overwhelming" majority—of Muslims in a number of countries support making sharia the law of the land, including Afghanistan (99%), Iraq (91%), Niger (86%), Malaysia (86%), Pakistan (84%), Morocco (83%), Bangladesh (82%), Egypt (74%), Indonesia (72%), Jordan (71%), Uganda (66%), Ethiopia (65%), Mali (63%), Ghana (58%), and Tunisia (56%).^[84] In Muslim regions of Southern-Eastern Europe and Central Asia, the support is less than 50%: Russia (42%), Kyrgyzstan (35%), Tajikistan (27%), Kosovo (20%), Albania (12%), Turkey (12%), Kazakhstan (10%), Azerbaijan (8%). Regarding specific averages, in South Asia, Sharia had 84% favorability rating among the respondents; in Southeast Asia 77%; in the Middle-East/North Africa 74%; in Sub-Saharan Africa 64%; in Southern-Eastern Europe 18%; and in Central Asia 12%.^[84]

However, while most of those who support implementation of sharia favor using it in family and property disputes, fewer supported application of severe punishments such as whippings and cutting off hands, and interpretations of some aspects differed widely.^[68] According to the Pew poll, among Muslims who support making sharia the law of the land, most do not believe that it should be applied to non-Muslims.

In the Muslim-majority countries surveyed this proportion varied between 74% (of 74% in Egypt) and 19% (of 10% in Kazakhstan), as percentage of those who favored making sharia the law of the land.{{sfn|Stence|2013|p=48}} Polls demonstrate that for Egyptians, the 'Shariah' is associated with notions of political, social and gender justice.^[69]

In 2008, Rowan Williams, the Archbishop of Canterbury, has suggested that Islamic and Orthodox Jewish courts should be integrated into the British legal system alongside ecclesiastical courts to handle marriage and divorce, subject to agreement of all parties and strict requirements for protection of equal rights for women.^[70] His reference to the sharia sparked a controversy.^[70] Later that year, Nicholas Phillips, then Lord Chief Justice of England and Wales, stated that there was "no reason why sharia principles [...] should not be the basis for mediation or other forms of alternative dispute resolution."^[71] A 2008 YouGov poll in the United Kingdom found 40% of Muslim students interviewed supported the introduction of sharia into British law for Muslims.^[72] Michael Broyde, professor of law at Emory University specializing in alternative dispute resolution and Jewish law,^[73] has argued that sharia courts can be integrated into the American religious arbitration system, provided that they adopt appropriate institutional requirements as American rabbinical courts have done.^[74]

Extremism

Fundamentalists, wishing to return to basic Islamic religious values and law, have in some instances imposed harsh sharia punishments for crimes, curtailed civil rights and violated human rights. Extremists have used the Quran and their own particular version of sharia to justify acts of war and terror against Muslim as well as non-Muslim individuals and governments, using alternate, conflicting interpretations of sharia and their notions of jihad.^[94]{{sfn|Horrie|Chippindale|1991|p=4}}{{sfn|Horrie|Chippindale|1991|p=100}}

The sharia basis of arguments advocating terrorism is controversial. According to Bernard Lewis, "[a]t no time did the classical jurists offer any approval or legitimacy to what we nowadays call terrorism"^[75] and the terrorist practice of suicide bombing "has no justification in terms of Islamic theology, law or tradition".^[76] In the modern era the notion of jihad has lost its jurisprudential relevance and instead gave rise to an ideological and political discourse.^[77] For al-Qaeda ideologues, in jihad all means are legitimate, including targeting Muslim non-combatants and the mass killing of non-Muslim civilians.^[94] According to these interpretations, Islam does not discriminate between military and civilian targets, but rather between Muslims and nonbelievers, whose blood can be legitimately spilled.^[94]

Some scholars of Islam, such as Yusuf al-Qaradawi and Sulaiman Al-Alwan, have supported suicide attacks against Israeli civilians, arguing that they are army reservists and hence should be considered as soldiers, while Hamid bin Abdallah al-Ali declared that suicide attacks in Chechnya were justified as a "sacrifice".^[94]^[78] Many prominent Islamic scholars, including al-Qaradawi himself, have issued condemnations of terrorism in general terms.^[79] For example, Abdul-Aziz ibn Abdullah Al ash-Sheikh, the Grand Mufti of Saudi Arabia has stated that "terrorizing innocent people [...] constitute[s] a form of injustice that cannot be tolerated by Islam", while Muhammad Sayyid Tantawy, Grand Imam of al-Azhar and former Grand Mufti of Egypt has stated that "attacking innocent people is not courageous; it is stupid and will be punished on the Day of Judgment".^[80]^[81]

Opposition

In the Western world, sharia has been called a source of "hysteria",^[82] "more controversial than ever", the one aspect of Islam that inspires "particular dread".^[83] On the Internet, "dozens of self-styled counter-jihadis" emerged to campaign against sharia law, describing it in strict interpretations resembling those of Salafi Muslims.^[83] Also, fear of sharia law and of "the ideology of extremism" among Muslims reportedly spread to mainstream conservative Republicans in the United States.^[84] Former House Speaker Newt Gingrich won ovations calling for a federal ban on sharia law.^[84]

The issue of "liberty versus Sharia" was called a "momentous civilisational debate" by right-wing pundit Diana West.^[85]

In 2008 in Britain, the future Prime Minister (David Cameron) declared his opposition to "any expansion of Sharia law in the UK."^[86] In Germany, in 2014, the Interior Minister (Thomas de Maizière) told a newspaper (Bild), "Sharia law is not tolerated on German soil."^[87]

Some countries and jurisdictions have explicit bans on sharia law. In Canada, for example, sharia law has been explicitly banned in Quebec by a 2005 unanimous vote of the National Assembly,^[88] while the province of Ontario allows family law disputes to be arbitrated only under Ontario law.^[89] In the U.S., opponents of Sharia have sought to ban it from being considered in courts, where it has been routinely used alongside traditional Jewish and Catholic laws to decide legal, business, and family disputes subject to contracts drafted with reference to such laws, as long as they do not violate secular law or the U.S. constitution.^[90] After failing to gather support for a federal law making observing Sharia a felony punishable by up to 20 years in prison, anti-Sharia activists have focused on state legislatures.^[90] By 2014, bills aimed against use of Sharia have been introduced in 34 states and passed in 11.^[90] These bills have generally referred to banning foreign or religious law in order to thwart legal challenges.^[90]

According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "[a]nthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite."{{sfn|Otto|2008|p=30}}

Criticism

Compatibility with western democracy

Ali Khan states that "constitutional orders founded on the principles of sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall".^[91]^[92] Other scholars say sharia is not compatible with democracy, particularly where the country's constitution demands separation of religion and the democratic state.^[93]^[94]

Courts in non-Muslim-majority nations have generally ruled against the implementation of sharia, both in jurisprudence and within a community context, based on sharia's religious background. In Muslim-majority nations, sharia has wide support with some exceptions.^[95] For example, in 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party on the grounds that "Democracy is the antithesis of Sharia", the latter of which Refah sought to introduce.^[96]^[97]

On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".^[98]^[99]^[100] Refah's sharia-based notion of a "plurality of legal systems, grounded on religion" was ruled to contravene the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was determined that it would "do away with the State's role as the guarantor of individual rights and freedoms" and "infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy".^[101]

Human rights

Several major, predominantly Muslim countries have criticized the Universal Declaration of Human Rights (UDHR) for its perceived failure to take into account the cultural and religious context of non-Western countries. Iran declared in the UN assembly that UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.^[102] Islamic scholars and Islamist political parties consider 'universal human rights' arguments as imposition of a non-Muslim culture on Muslim people, a disrespect of customary cultural practices and of Islam.^[103]^[104] In 1990, the Organisation of Islamic Cooperation, a group representing all Muslim-majority nations, met in Cairo to respond to the UDHR, then adopted the Cairo Declaration on Human Rights in Islam.^[105]^[106]

In 2009, the journal Free Inquiry summarized the criticism of the Cairo Declaration in an editorial: "We are deeply concerned with the changes to the Universal Declaration of Human Rights by a coalition of Islamic states within the United Nations that wishes to prohibit any criticism of religion and would thus protect Islam's limited view of human rights. In view of the conditions inside the Islamic Republic of Iran, Egypt, Pakistan, Saudi Arabia, the Sudan, Syria, Bangladesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters – in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam."^[108]

Freedom of speech

The Cairo Declaration on Human Rights in Islam conditions free speech with sharia law: Article 22(a) of the Declaration states that "Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariah."^[112]

Blasphemy, as interpreted under sharia, is controversial.^[122] Muslim-majority nations have petitioned the United Nations to limit "freedom of speech" because "unrestricted and disrespectful opinion against Islam creates hatred".^[123] Other nations, in contrast, consider blasphemy laws as violation of "freedom of speech",^[124] stating that freedom of expression is essential to empowering both Muslims and non-Muslims, and point to the abuse of blasphemy laws, where hundreds, often members of religious minorities, are being lynched, killed and incarcerated in Muslim-majority nations, on accusations of insulting Islam.^[125]^[126]

Freedom of thought, conscience and religion

According to the United Nations' Universal Declaration of Human Rights, every human has the right to freedom of thought, conscience and religion; this right includes freedom to change their religion or belief. Sharia has been criticized for not recognizing this human right. According to scholars^[128]^[129]^[130] of Islamic law, the applicable rules for religious conversion under sharia are as follows:

According to sharia theory, conversion of disbelievers and non-Muslims to Islam is encouraged as a religious duty for all Muslims, and leaving Islam (apostasy), expressing contempt for Islam (blasphemy), and religious conversion of Muslims is prohibited.^[131]^[132] Not all Islamic scholars agree with this interpretation of sharia theory. In practice, as of 2011, 20 Muslim-majority nations had laws declaring apostasy from Islam as illegal and a criminal offense. Such laws are incompatible with the UDHR's requirement of freedom of thought, conscience and religion.^[133]^[134]^[135]^[136] In another 2013 report based on international survey of religious attitudes, more than 50% of Muslim population in 6 out of 49 Muslim-majority countries supported death penalty for any Muslim who leaves Islam (apostasy).^[137]^[138] However it is also shown that the majority of Muslims in the 43 nations surveyed did not agree with this interpretation of sharia.

Some scholars claim sharia allows religious freedom because a Qur'anic verse teaches, "there is no compulsion in religion."^[139] Other scholars claim sharia recognizes only one proper religion, considers apostasy as sin punishable with death, and members of other religions as kafir (infidel);^[140] or hold that sharia demands that all apostates and kafir must be put to death, enslaved or be ransomed.^[141]{{qn|date=May 2016}}^[142]{{sfn|Khadduri|1955|p={{page needed|date=April 2016}}}}^[143] Yet other scholars suggest that sharia has become a product of human interpretation and inevitably leads to disagreements about the “precise contents of the Shari'a." In the end, then, what is being applied is not sharia, but what a particular group of clerics and government decide is sharia. It is these differing interpretations of sharia that explain why many Muslim-majority countries have laws that restrict and criminalize apostasy, proselytism and their citizens' freedom of conscience and religion.^[144]^[145]

LGBT rights

Homosexual intercourse is illegal in sharia law, though the prescribed penalties differ from one school of jurisprudence to another. For example, some Muslim-majority countries impose the death penalty for acts perceived as sodomy and homosexual activities: Iran,^[146] Saudi Arabia,^[147] and in other Muslim-majority countries such as Egypt, Iraq, and the Indonesian province of Aceh,^[148]^[149] same-sex sexual acts are illegal,^[150] and LGBT people regularly face violence and discrimination.^[151]

Women

Domestic violence

Many claim sharia law encourages domestic violence against women, when a husband suspects nushuz (disobedience, disloyalty, rebellion, ill conduct) in his wife.^[152] Other scholars claim wife beating, for nashizah, is not consistent with modern perspectives of the Quran.^[153]

One of the verses of the Quran relating to permissibility of domestic violence is Surah 4:34.^[154]^[155] Sharia has been criticized for ignoring women's rights in domestic abuse cases.^[156]^[157]^[158]^[159] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify sharia-inspired laws to improve women's rights in Muslim-majority nations, including women's rights in domestic abuse cases.^[160]^[161]^[162]^[163]

Personal status laws and child marriage

Shari'a is the basis for personal status laws in most Islamic-majority nations. These personal status laws determine rights of women in matters of marriage, divorce and child custody. A 2011 UNICEF report concludes that sharia law provisions are discriminatory against women from a human rights perspective. In legal proceedings under sharia law, a woman’s testimony is worth half of a man’s before a court.^[164]

Except for Iran{{citation needed|date=December 2016}}, Lebanon{{citation needed|date=December 2016}} and Bahrain{{citation needed|date=December 2016}} which allow child marriages{{citation needed|date=December 2016}}, the civil codes in Islamic majority countries do not allow child marriage of girls. However, with sharia personal status laws, sharia courts in all these nations have the power to override the civil code. The religious courts permit girls less than 18 years old to marry. As of 2011, child marriages are common in a few Middle Eastern countries, accounting for 1 in 6 of all marriages in Egypt and 1 in 3 marriages in Yemen. UNICEF and other studies state that the top five nations in the world with highest observed child marriage rates – Niger (75%), Chad (72%), Mali (71%), Bangladesh (64%), Guinea (63%) – are Islamic-majority countries where the personal laws for Muslims are sharia-based.^[165]^[166] In his Cairo speech, President Obama spoke out against child marriage.^[167]

Rape is considered a crime in all countries, but sharia courts in Bahrain, Iraq, Jordan, Libya, Morocco, Syria and Tunisia in some cases allow a rapist to escape punishment by marrying his victim, while in other cases the victim who complains is often prosecuted with the crime of Zina (adultery).^[164]^[168]^[169]

Women's property rights

Islamic law granted Muslim women certain legal rights, such as property rights which women in the West did not possess until "comparatively recent times".^[170]^[171]^[172] Starting with the 20th century, Western legal systems evolved to expand women's rights, but women's rights in the Muslim world have to varying degree remained tied to the Quran, hadiths and their traditional interpretations by Islamic jurists.^[208]^[173] Sharia grants women the right to inherit property from other family members, and these rights are detailed in the Quran.{{sfn|Horrie|Chippindale|1991|p=49}} A woman's inheritance is unequal and less than a man's, and dependent on many factors.{{Quran-usc|4|12}}^[210] For instance, a daughter's inheritance is usually half that of her brother's.{{Quran-usc|4|11}}^[174]

Slavery

Sharia recognizes the basic inequality between master and women slave, between free women and slave women, between Believers and non-Believers, as well as their unequal rights.^[175]^[176] Sharia authorized the institution of slavery, using the words abd (slave) and the phrase ma malakat aymanukum ("that which your right hand owns") to refer to women slaves, seized as captives of war.^[175]^[177] Under Islamic law, Muslim men could have sexual relations with female captives and slaves.^[178]^[179] Slave women under sharia did not have a right to own property or to move freely.^[180]^[181] Sharia, in Islam's history, provided a religious foundation for enslaving non-Muslim women (and men), but allowed for the manumission of slaves. However, manumission required that the non-Muslim slave first convert to Islam.^[182]^[183] A slave woman who bore a child to her Muslim master (umm al-walad) could not be sold, becoming legally free upon her master's death, and the child was considered free and a legitimate heir of the father.^[184]^[185]

Parallels with Western legal systems

Early Islamic law developed a number of legal concepts that anticipated similar such concepts that later appeared in English common law.^[186]^[187] Similarities exist between the royal English contract protected by the action of debt and the Islamic Aqd, between the English assize of novel disseisin and the Islamic Istihqaq, and between the English jury and the Islamic Lafif in classical Maliki jurisprudence.^[186]^[188] The law schools known as Inns of Court also parallel Madrasahs.^[186] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems,^[189] as are the English trust and agency institutions to the Islamic Waqf and Hawala institutions, respectively.^[190]^[191]^[187]

Elements of Islamic law also have other parallels in Western legal systems. For example, the influence of Islam on the development of an international law of the sea can be discerned alongside that of the Roman influence.^[192]

Makdisi states Islamic law also parallels the legal scholastic system in the West, which gave rise to the modern university system.^[234] He writes that the triple status of faqih ("master of law"), mufti ("professor of legal opinions") and mudarris ("teacher"), conferred by the classical Islamic legal degree, had its equivalents in the medieval Latin terms magister, professor and doctor, respectively, although they all came to be used synonymously in both East and West.^[193] Makdisi suggests that the medieval European doctorate, licentia docendi was modeled on the Islamic degree ijazat al-tadris wa-l-ifta’, of which it is a word-for-word translation, with the term ifta’ (issuing of fatwas) omitted.^[193]^[194] He also argues that these systems shared fundamental freedoms: the freedom of a professor to profess his personal opinion and the freedom of a student to pass judgement on what he is learning.^[193]

There are differences between Islamic and Western legal systems. For example, sharia classically recognizes only natural persons, and never developed the concept of a legal person, or corporation, i.e., a legal entity that limits the liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives.^[195] Interest prohibitions imposed secondary costs by discouraging record keeping and delaying the introduction of modern accounting.^[196] Such factors, according to Timur Kuran, have played a significant role in retarding economic development in the Middle East.^[197]

See also

References

Notes

1. ^¹{{cite web |title=British & World English: sharia |url=https://www.oxforddictionaries.com/definition/english/sharia |publisher=Oxford University Press |accessdate=4 December 2015 |location=Oxford}}
2. ^John L. Esposito, Natana J. DeLong-Bas (2001), [https://books.google.com/books?id=MOmaDq8HKCgC&pg=PA2#v=onepage&q&f=false Women in Muslim family law], p. 2. Syracuse University Press, {{ISBN|978-0815629085}}. Quote: "[...], by the ninth century, the classical theory of law fixed the sources of Islamic law at four: the Quran, the Sunnah of the Prophet, qiyas (analogical reasoning), and ijma (consensus)."
3. ^¹²³⁴{{cite encyclopedia |title=Islamic Law |editor=John L. Esposito |encyclopedia=The Oxford Dictionary of Islam |publisher=Oxford University Press |location=Oxford |year=2014 |url=http://www.oxfordislamicstudies.com/print/opr/t125/e1107}}
4. ^Staff (3 January 2003). "Analysis: Nigeria's Sharia Split". BBC News. Retrieved 19 September 2011. "Thousands of people have been killed in fighting between Christians and Muslims following the introduction of sharia punishments in northern Nigerian states over the past three years".
5. ^Harnischfeger, Johannes (2008).
{{•}}p. 16. "When the Governor of Kaduna announced the introduction of Sharia, although non-Muslims form almost half of the population, violence erupted, leaving more than 1,000 people dead."
{{•}} p. 189. "When a violent confrontation loomed in February 200, because the strong Christian minority in Kaduna was unwilling to accept the proposed sharia law, the sultan and his delegation of 18 emirs went to see the governor and insisted on the passage of the bill."
6. ^Stahnke, Tad and Robert C. Blitt (2005), "The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries." Georgetown Journal of International Law, volume 36, issue 4; also see Sharia Law profile by Country, Emory University (2011)
7. ^{{cite journal |last1=Hajjar |first1=Lisa |title=Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis |journal=Law & Social Inquiry |volume=29 |issue=1 |year=2004 |pages=1–38 |jstor=4092696 |doi=10.1111/j.1747-4469.2004.tb00329.x}}
8. ^Al-Suwaidi, J. (1995). Arab and western conceptions of democracy; in Democracy, war, and peace in the Middle East (Editors: David Garnham, Mark A. Tessler), Indiana University Press, see Chapters 5 and 6; {{ISBN|978-0253209399}}{{page needed|date=April 2016}}
9. ^Abdal-Haqq, Irshad (2006). Understanding Islamic Law – From Classical to Contemporary (edited by Aminah Beverly McCloud). Chapter 1 Islamic Law – An Overview of its Origin and Elements. AltaMira Press. p. 4.
10. ^{{cite book |last1=Hashim Kamali |first1=Mohammad |authorlink=Mohammad Hashim Kamali |title=Shari'ah Law: An Introduction |date=2008 |publisher=Oneworld Publications |isbn=978-1851685653 |pages=2, 14}}
11. ^¹Weiss, Bernard G. (1998). The Spirit of Islamic Law. Athens, Georgia: University of Georgia Press. p. 17. {{ISBN|978-0820319773}}.
12. ^Ullmann, M. (2002), Wörterbuch der griechisch-arabischen Übersetzungen des neunten Jahrhunderts, Wiesbaden, p. 437. Rom. 7: 22: ‘συνήδομαι γὰρ τῷ νόμῳ τοῦ θεοῦ’ is translated as ‘أني أفرح بشريعة الله’
13. ^{{cite journal|last1=Forte|first1=David F.|title=Islamic Law; the impact of Joseph Schacht| journal=Loyola Los Angeles International and Comparative Law Review|date=1978|volume=1|page=8|url=http://www.soerenkern.com/pdfs/islam/IslamicLawTheImpactofJosephSchacht.pdf|accessdate=19 April 2018}}
14. ^{{cite book|last1=Brown |first1=Daniel W.|title=Rethinking tradition in modern Islamic thought |date=1996 |publisher=Cambridge University Press |isbn=978-0521570770 |url=https://www.scribd.com/document/116836545/Rethinking-Traditions-in-Modern-Islamic-Thought-Daniel-w-Brown |accessdate=10 May 2018 |ref=DWBRTMIT1996 |pages=18–24 }}
15. ^{{cite book |title=The Origins of Muhammadan Jurisprudence |last1=Schacht |first=Joseph |publisher=Oxford University Press |orig-year= 1950 |year= 1959 |page=190 }}
16. ^{{cite book |title=The Origins of Muhammadan Jurisprudence |last1=Schacht |first=Joseph |publisher=Oxford University Press |origyear= 1950 |year= 1959 |page=40 }}
17. ^{{cite book |title=The Origins of Muhammadan Jurisprudence |last1=Schacht |first=Joseph |publisher=Oxford University Press |orig-year= 1950 |year= 1959 |page=22 }}
18. ^{{cite book |title=The Origins of Muhammadan Jurisprudence |last1=Schacht |first=Joseph |publisher=Oxford University Press |origyear= 1950 |year= 1959 |page=4 }}
19. ^{{cite book|last1=Lewis|first1=Bernard|title=The Middle East, a brief history of the last 2000 years|date=1995|publisher=Simon and Schuster|location=NY|isbn=978-0684832807|page=223}}
20. ^{{cite journal|last1=Smith|first1=W|title=Islam in Modern History|date=1957|page=57}}
21. ^{{cite journal|last1=Forte|first1=David F.|title=Islamic Law; the impact of Joseph Schacht|journal=Loyola Los Angeles International and Comparative Law Review|date=1978|volume=1|page=2|url=http://www.soerenkern.com/pdfs/islam/IslamicLawTheImpactofJosephSchacht.pdf|accessdate=19 April 2018}}
22. ^{{cite web |url=http://www.cfr.org/religion/islam-governing-under-sharia/p8034 |title=Islam: Governing under Sharia |first1=Toni |last1=Johnson |first2=Mohammed Aly |last2=Sergie |publisher=Council on Foreign Relations |date=25 July 2014}}
23. ^Amanat & Griffel (2007), Shari'a: Islamic Law in the Contemporary Context, Stanford University Press, {{ISBN|978-0804756396}}{{page needed|date=April 2016}}
24. ^{{cite journal |last1=Schenker |first1=J G |title=Women's reproductive health: monotheistic religious perspectives |journal=International Journal of Gynecology & Obstetrics |volume=70 |issue=1 |pages=77–86 |year=2000 |pmid=10884536 |doi=10.1016/S0020-7292(00)00225-3}}
25. ^{{cite news|newspaper=New York Times|author=Austin Ramzy|title=Brunei to Punish Adultery and Gay Sex With Death by Stoning|date=March 28, 2019|url=https://www.nytimes.com/2019/03/28/world/asia/brunei-adultery-gay-stoning.html}}
26. ^{{cite news|title=Brunei Shariah law applies death sentence for homosexuality|newspaper=Deutsche Welle|date=March 27, 2019|url=https://www.dw.com/en/brunei-shariah-law-applies-death-sentence-for-homosexuality/a-48076114}}
27. ^{{cite web|website=Israel Ministry of Justice|title=The Sharia Courts|url=https://www.justice.gov.il/En/Units/ShariaCourts/Pages/default.aspx|access-date=Mar 19, 2019}}
28. ^{{cite web |url=http://www.law.emory.edu/ifl/legal/india.htm |title=India |publisher=Law.emory.edu |date= |accessdate=18 February 2013 |archive-url=https://web.archive.org/web/20130116220209/http://www.law.emory.edu/ifl/legal/india.htm# |archive-date=2013-01-16 |dead-url=no |df= }}
29. ^Taher, Abul (14 September 2008). Revealed: UK’s first official sharia courts. The Sunday Times
30. ^[https://www.telegraph.co.uk/news/uknews/law-and-order/9975937/Inside-Britains-Sharia-courts.html Inside Britain's Sharia courts] Jane Corbin, The Telegraph (7 April 2013)
31. ^{{cite journal |last1=Bowen |first1=John R. |year=2010 |url=http://ir.stthomas.edu/ustlj/vol7/iss3/3/ |title=How could English courts recognize Shariah? |journal=University of St. Thomas Law Journal |volume=7 |issue=3 |pages=411–35}}
32. ^{{cite web |url=http://ddc.aub.edu.lb/projects/pspa/qatar.html |title=Qatar: The Duality of the Legal System |publisher=}}
33. ^[https://caselaw.findlaw.com/data2/delawarestatecases/493-2003.pdf Saudi Arabia Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Supreme Court of Delaware, January 14, 2005 p. 52]. "The Saudi law system differs in critically important respects from the system of legal thought employed by the common law countries, including the United States. Perhaps most significant is that Islamic law does not embrace the common law system of binding precedent and stare decisis. In Saudi Arabia, judicial decisions are not in themselves a source of law, and with minor exceptions, court decisions in Saudi Arabia are not published or even open to public inspection."
34. ^Tetley (1999), Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), La. Law Review, 60, 677
35. ^¹Antoinette Vlieger (2012), Domestic Workers in Saudi Arabia and the Emirates, {{ISBN|978-1610271288}}, Chapter 4{{page needed|date=April 2016}}
36. ^Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan, Brill Academic, {{ISBN|978-9004172258}}, pp. 126–27
37. ^Etannibi E. O. Alemika (2005), "Human Rights and Shariah Penal Code in Northern Nigeria", UN Human Rights Monitor, pp. 110–27
38. ^Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, {{ISBN|978-0892591428}}, pp. 1–68{{nonspecific|date=April 2016}}
39. ^Philip Reichel and Jay Albanese (2013), Handbook of Transnational Crime and Justice, SAGE publications, {{ISBN|978-1452240350}}, pp. 36–37
40. ^Ajijola, Alhaji A.D. (1989). Introduction to Islamic Law. Karachi: International Islamic Publishers. p. 133.
41. ^{{cite journal |last1=Kamali |first1=Mohammad Hashim |authorlink=Mohammad Hashim Kamali |year=1998 |title=Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia |jstor=3382008 |journal=Arab Law Quarterly |volume=13 |issue=3 |pages=203–34 |doi=10.1163/026805598125826102}}{{qn|date=April 2016}}
42. ^{{cite journal |last1=Mohd Noor |first1=Azman |last2=Ibrahim |first2=Ahmad Basri |year=2008 |title=The rights of a rape victim in Islamic Law |journal=IIUM Law Journal |volume=16 |issue=1 |pages=65–83 |url=http://irep.iium.edu.my/id/eprint/5699}}
43. ^{{cite journal|title=DNA Evidence in Pakistani Courts: An Analysis|author=Shahbaz Ahmad Cheema|journal=Lums Law Journal|volume=3|url=https://sahsol.lums.edu.pk/law-journal/dna-evidence-pakistani-courts-analysis}}
44. ^¹{{cite journal |last1=Fadel |first1=Mohammad |title=Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought |journal=International Journal of Middle East Studies |volume=29 |issue=2 |year=2009 |pages=185–204 |ssrn=1113891 |jstor=164016 |doi=10.1017/S0020743800064461}}
45. ^{{cite book |last1=Paul Powers |date=2005 |title=Intent in Islamic Law: Motive and Meaning in Medieval Sunnī Fiqh |publisher=Brill Academic |isbn=978-9004145924 |pages=97–110, 125–41}}
46. ^¹Reem Meshal (2014), Sharia and the Making of the Modern Egyptian, Oxford University Press, {{ISBN|978-9774166174}}, pp. 96–101 and Chapter 4
47. ^¹Timur Kuran (2012), The Long Divergence: How Islamic Law Held Back the Middle East, Princeton University Press, {{ISBN|978-0691156415}}, pp. 246–49 and Chapter 12
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