Shari'a

Unlike Christianity, Islam does not separate religion and politics. Islamic law, or Shari'a, regulates all facets of life of individual Muslims including the personal, family, social, commercial, criminal, political, and religious aspects. Shari'a consists mainly of family and inheritance law and to a lesser degree contracts law, penal code, taxation law, and the law of war.

Many Muslims consider Shari'a as divine, which renders the reform of Islamic Shari'a an exceedingly difficult task. This task is further complicated by the absence of any central spiritual Islamic council or a Supreme Court of Shari'a to legislate for the Muslim world. As a result, individual Muslim countries have adapted Shari'a to their particular circumstances and cultures.

Shari'a laws are derived from four sources. The primary source of Shari'a is the Qur'an, which is directly revealed by God to his messenger Muhammad (c. 570–632). The Qur'an consists of guidelines to regulate the various aspects of the private and the public life of individual Muslims.

The life of Muhammad constitutes the second important source of Shari'a known as Sunna. Muhammad's sayings on religion and worship practices, his rulings on social, family, and Muslim community affairs, as well as his interpretation of Qur'anic verses have guided the social and moral aspects of the daily life of Muslims over the centuries. Muhammad's sayings and practices were compiled and codified by the Muslim jurists and scholars two centuries after his death. These jurists formalized the pronouncements of the Qur'an and Sunna concerning family affairs and worship rituals into standards for private and public conduct. Twenty-first century Islamic fundamentalists insist that these practices should be observed and enforced by the state.

After the death of Prophet Muhammad, Muslims began to develop secondary sources of law to deal with cases and situations for which no specific Qur'anic reference or sayings by the Prophet existed. These secondary sources consisted of ijma' (consensus) and qiyas (reasoning by analogy). Rulings derived from ijma' and qiyas are manmade laws and should therefore be consistent with the teachings of the Qur'an and the Sunna of the Prophet.

Although the ulama (Muslim clerics and scholars) designated ijma' as an important source of Shari'a during the early decades of Islam, liberal Islamic thinkers raised serious questions concerning its meaning and scope. These Muslim scholars have questioned what constitutes ijma' and whether it is arrived at by a unanimous decision or by a majority ruling and whether it gives room for descenting opinions. Other Islamic scholars ask if past rulings based on ijma' should be binding on future generations of Muslims regardless of their nationality and place of residence. Still other reform-oriented thinkers inquire whether ijma' can be reached today by the elected representatives of the Muslim people in a parliament and, if this is the case, whether such an ijma' can abrogate a Shari'a law arrived at by the consensus of the early ulama.

The fourth source of Shari'a is qiyas, or reasoning by analogy. It calls for applying the principle of precedent to cases for which no relevant Qur'anic text and no precedent in the Sunna exists. For instance, Shari'a prohibits all types of alcohol and any monetary gains derived from financial investments following the Qur'an's ban on drinking of wine and usury.

Another form of qiyas is ijtihad, or the application of reason by an individual. In the tenth century, Islamic jurists argued that after three centuries since the death of Muhammad, the Shari'a was complete and as such ijtihad should not be practiced. They contended that the continuation of independent reasoning and rational interpretation of Qur'an would undermine Islam. They therefore insisted that new questions should be answered by reference to the Qur'an, Sunna, and ijma'.

With the stifling of ijtihad, Islam turned inward until the nineteenth and early twentieth century, when a group of Islamic reformists revived ijtihad. These modern and liberal Islamic thinkers rejected the claim of the ulama that Shari'a was complete and could not be amended or reformed. They contended that the vast majority of the rules of Shari'a were not directly revealed by God and questioned the authenticity of many of the opinions and rulings attributed to the Prophet and his companions. They stated that the vast majority of these opinions and rulings were transmitted orally from one individual to another and were collected and codified more than two centuries after the death of Muhammad.

The liberal thinkers concluded that because the early jurists took it on their own to make many of the specific rules of Shari'a, Muslims should be able and willing to modernize Shari'a to accommodate the needs of modern societies. In particular, they want to harmonize Shari'a with the modern standards of human rights. In their opinion, although Shari'a emphasized equality of all believers before God, it gave unequal rights for men and women and Muslims and non-Muslims. They state that although the Qur'an significantly improved the social and legal status of Muslim women, it denied them equal rights with men in the areas of marriage, divorce, and inheritance. This unequal treatment is evidenced in polygamy , the need for a male relative to negotiate the marriage contract for the woman, the male right of unilateral divorce, and the laws of inheritance, which give men twice the share of women.

They also indicate that although Shari'a calls for religious tolerance and for granting the Christians and Jews autonomy in the areas of self-administration and family law, it denied them several privileges. They were not considered as full members in the community, excluded from military service, had to pay a special tax, banned from marrying Muslim women, and their places of worship were not to be superior to Islamic mosques.

Finally, the liberal thinkers further added that Shari'a traditional criminal law includes some forms of corporal punishment—such as amputation of limbs for robbery and stoning for adultery—that are cruel and conflict with modern human rights standards. Although they acknowledge that these traditional Shari'a penalties do not exist in the criminal codes of the vast majority of contemporary Islamic states, a few Islamic countries including Iran, Sudan, Pakistan, and Afghanistan have used these corporal punishments in the twenty-first century.

See also: Halakhah.

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Emile Sahliyeh