Sharia means Islamic law based on Islamic concepts based from Quran and Hadith. Since the early Islamic states of the eighth and ninth centuries, Sharia always existed alongside other normative systems.
Historically, Sharia was interpreted by independent jurists (Faqihs), based on Islamic scriptural sources and various legal methodologies. In the modern era, statutes inspired by European codes replaced traditional laws in most parts of the Muslim world, with classical Sharia rules retained mainly in personal status laws. Countries such as Pakistan and Saudi Arabia have Islam as their state religion, but haven’t implemented Sharia law fully. These laws were codified by legislative bodies which sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of Sharia, including hudud capital punishments, which in some cases resulted in traditionalist legal reform. Some countries with Muslim minorities use Sharia-based laws to regulate banking, economics, inheritance, marriage and other governmental and personal affairs of their Muslim population. The use of Sharia in non-Muslim countries and on non-Muslims is debated.
Historical background
Sharia is a religious law forming part of the Islamic tradition. Traditional theory of Islamic jurisprudence recognizes four sources of Sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning), and ijma (juridical consensus).John L. Esposito, Natana J. DeLong-Bas (2001), Women in Muslim family law , p. 2. Syracuse University Press, . Quote: "[...], by the ninth century, the classical theory of law fixed the sources of Sharia at four: the Quran, the Sunnah of the Prophet, qiyas (analogical reasoning), and ijma (consensus)." Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali and Jafari (Shia)—developed methodologies for deriving Sharia rulings from scriptural sources. Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics. 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.
Classical jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in Sharia courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs. Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by Sharia but not bound by its rules. Non-Muslim (dhimmi) communities had legal autonomy to adjudicate their internal affairs. Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers. The Ottoman civil code of 1869–1876 was the first partial attempt to codify Sharia.
In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models. Judicial procedures and legal education were likewise brought in line with European practice. While the constitutions of most Muslim-majority states contain references to Sharia, its classical rules were largely retained only in personal status law. Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of Sharia, including hudud capital punishments and other forms of punishment like qisas and diyah In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of Sharia advocated by progressive reformers. While hudud punishments hold symbolic importance for their proponents and have attracted international attention, in countries where they make part of the legal system, they have been used infrequently or not at all, and their application has varied depending on local political climate.
Some Muslim-minority countries recognize the use of Sharia-based family laws for their Muslim populations.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) The adoption and demand for Sharia in the legal system of nations with significant Muslim-minorities is an active topic of international debate. Reintroducing Sharia in Muslim-majority nations has been described as "a longstanding goal for Islamist movements",Lapidus, Ira (1996), The Cambridge Illustrated History of the Islamic World edited by Francis Robinson, Cambridge University Press, pp. 293–98. "The reintroduction of Sharia is a longstanding goal for Islamist movements in Muslim countries". and attempts to introduce or expand Sharia have been accompanied by controversy,Hamann, Katie (29 December 2009). "Aceh's Sharia Law Still Controversial in Indonesia" . Voice of America. Retrieved 19 September 2011. Iijima, Masako (13 January 2010). "Islamic Police Tighten Grip on Indonesia's Aceh" . Reuters. Retrieved 18 September 2011. "Aceh Sharia Police Loved and Hated" . The Jakarta Post. violence,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". 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." Mshelizza, Ibrahim (28 July 2009). "Fight for Sharia Leaves Dozens Dead in Nigeria – Islamic Militants Resisting Western Education Extend Their Campaign of Violence" . The Independent. Retrieved 19 September 2011. "Nigeria in Transition: Recent Religious Tensions and Violence" . PBS. Staff (28 December 2010). "Timeline: Tensions in Nigeria – A Look at the Country's Bouts of Inter-Religious and Ethnic Clashes and Terror Attacks" . Al Jazeera English. Retrieved 19 September 2011. "Thousands of people are killed in northern Nigeria as non-Muslims opposed to the introduction of sharia, or Sharia, fight Muslims who demand its implementation in the northern state of Kaduna.". Ibrahimova, Roza (27 July 2009). "Dozens Killed in Violence in Northern Nigeria" (video (requires Adobe Flash; 00:01:49)). Al Jazeera English. Retrieved 19 September 2011. "The group Boko Haram, which wants to impose sharia (Sharia) across the country, has attacked police stations and churches." and even warfare. . Library of Congress Country Studies: Sudan:. "The factors that provoked the military coup, primarily the closely intertwined issues of Sharia and of the civil war in the south, remained unresolved in 1991. The September 1983 implementation of the sharia throughout the country had been controversial and provoked widespread resistance in the predominantly non-Muslim south ... Opposition to the sharia, especially to the application of hudud (sing., hadd), or Islamic penalties, such as the public amputation of hands for theft, was not confined to the south and had been a principal factor leading to the popular uprising of April 1985 that overthrew the government of Jaafar an Nimeiri". Marchal, R. (2013), Islamic political dynamics in the Somali civil war. Islam in Africa South of the Sahara: Essays in Gender Relations and Political Reform, pp. 331–52
Tibi, Bassam (2008). Political Islam, World Politics and Europe. Routledge. p. 33. "The shari'a was imposed on non-Muslim Sudanese peoples in September 1983, and since that time Muslims in the north have been fighting a jihad against the non-Muslims in the south."
Types of legal systems The legal systems of Muslim countries may be grouped as: secular systems, mixed systems, and classical Sharia systems.
Secular systems
Secular systems are those where Sharia plays no role in the nation's legal system and religious interference in state affairs, politics, and law is not permitted. Turkey has been an example of a Muslim-majority nation with a secular system. Several states in West Africa and Central Asia also describe themselves as secular.
Mixed systems
Most Muslim countries have mixed legal systems that postulate a constitution and rule of law, while also allowing rules of traditional Islamic jurisprudence to influence certain areas of national law. These systems possess large bodies of codified laws, which may be based on European or Indian codes. In these systems, the central legislative role is played by politicians and modern jurists rather than traditional religious scholars. Pakistan, Egypt, Malaysia, and Nigeria are examples of states having mixed systems. Some states with Muslim minorities, such as Greece (Western Thrace region only) and Israel, also have mixed systems that administer Sharia for their Muslim population.
Classical Sharia systems
Under this system, shared by a small minority of modern countries, classical Sharia is formally equated with national law and to a great extent provides its substance. The state has a ruler who functions as the highest judiciary and may promulgate and modify laws in some legal domains, but traditional religious scholars (ulama) play a decisive role in interpreting Sharia. The classical Sharia system is exemplified by Saudi Arabia and some Gulf states. Iran shares many of the same features, but also possesses characteristics of mixed legal systems, such as a parliament and codified laws.
Domains of application
Constitutional law
Most Muslim-majority countries incorporate Sharia at some level in their legal framework. Their constitutions commonly refer to Sharia as a source or the main source of law, though these references are not in themselves indicative of how much the legal system is influenced by Sharia, and whether the influence has a traditionalist or modernist character. The same constitutions usually also refer to universal principles such as democracy and human rights, leaving it up to legislators and the judiciary to work out how these norms are to be reconciled in practice. Conversely, some countries (e.g., Algeria), whose constitution does not mention Sharia, possess Sharia-based family laws. Nisrine Abiad identifies Bahrain, Iran, Pakistan, and Saudi Arabia as states with "strong constitutional consequences" of Sharia "on the organization and functioning of power".
Family law
Except for secular systems, Muslim-majority countries possess Sharia-based family laws (marriage, inheritance, etc.). These laws generally reflect influence of various modern-era reforms and tend to be characterized by ambiguity, with traditional and modernist interpretations often manifesting themselves in the same country, both in legislation and court decisions. In Greece (only in Western Thrace), Indonesia (outside of Aceh, and in most circumstances), Nigeria (outside the states using Sharia law) and Senegal (only in inheritance) people can choose whether to pursue a case in a Sharia or secular court.
Criminal law