What is Sharia Law?
Sharia law, translated into “the path”, is the code of conduct for religious law in Islam. It is composed of the teachings of the Qur’an, the Muslim holy book, and the teaching of the prophet Muhammad, in the Sunnah. Secondary sources of Sharia law include the teachings of Muslim scholars.
Sharia law encompasses all aspects of society including crime, politics, economics, sexuality, family law, diet, hygiene and fasting. Traditionally in Muslim countries Sharia law was considered the law of the land. Some common attributes of Sharia law include:
• The masking of women when in public
• Adoption is prohibited
• Prohibition against intermarriage between Muslims and non-Muslims
• Homosexuality is strictly forbidden; a 4 time offender gets the death penalty
• Men can be the only witnesses to crimes
• It is a crime to abandon the Islamic faith
• The display of an image of the prophet Muhammad carries the death penalty
One of the hallmarks of Sharia law is the inferiority to which it classifies women. A common example is if a woman is raped and becomes pregnant she is sentenced to death by stoning strictly for becoming pregnant out of wedlock. The man who raped her, however, is usually free of any wrongdoing.
Sunni & Shi’a
There are two main sects of Islam, the Sunni and the Shi’a. The Sunni believe that not only the Qur’an and Sunnah should be used in the practice of Sharia law, but also some of Muhammad’s other works such as the sahaba and the ulema. The Sunni also employ analogies to the Qur’an and the Sunnah when deciding issues. The Shi’a, in the alternative mostly frown upon the use of analogies and pride themselves on the use of logic. Where the Sunni use Muhammad’s secondary books to “fill in the gaps” of Sharia law the Shi’a use the teachings of the 12 imam, disciples of Muhammad that spread his original message.
Sharia Law Countries
Currently there are a number legal systems in the Middle East and Asia that deal with Sharia law. Some nations such as Mali, Kazakhstan and Turkey have a strictly secular government where Sharia law is only limited to personal and family matters. Others like Pakistan, Indonesia, Afghanistan, Sudan and Morocco follow a more integrated approach. In their law the secular government, although influenced by Sharia law, is the ultimate law and the constitution of the nations are upheld over conflicts with Sharia law. Then there are the fundamentalist Islamic nations such as Saudi Arabia, Iran and the Persian Gulf nations where Sharia law is the same as secular law.
Tenants of Sharia law
Sharia law is divided into 11 main tenants:
3. The Funeral Prayer
6. The Pilgrimage
This tenant of Sharia law prescribes how an individual is supposed to maintain purity and spiritual dimension. It entails the use of water, soil, or other “cleaners” for cleansing purposes. It imposes rules about contact with “impure” animals and delegates cleaning rituals to be done before and after prayer as well as the proper way to clean dishes, clothing and homes.
Sharia law details every aspect of daily prayer. One of the tenants most well known rituals is praying towards Mecca 5 times a day. Sharia law also delegates who can pray and where to pray.
Sharia law also has a detailed way of dealing with the ill and the burial of the deceased. There is a specific way that the dead are to be buried. This includes certain cleaning and dressing rituals as well as the burial itself, where the deceased is put in a grave perpendicular to Mecca and the body is placed sideways, facing Mecca.
The Qur’an details how the wealthy should treat the poor. In Sharia law it is required that those individuals who are deemed wealthy pay a tax, known as a zakat, in order to help the poor. The percentage is not prescribed by the Qur’an and it may be adjusted as needed.
Sharia law designates the month of Ramadan to be a month of fasting where individuals may not partake in food, drink, or sexual activity during daylight hours. Islamic law specifically prescribes the methods of fasting as well as the times, who must fast and any exceptions.
Specifically prescribed in the Qur’an, at least once in the life of a Muslim an individual must travel to Mecca to perform a ritual ceremony. This ceremony is performed two months after Ramadan and is very strict on the practices that must be performed
Sharia law specifically prohibits certain business actions including the charging of interest or insurance. For these, and many other reasons, the majority of businesses in the Islamic world are partnerships, instead of corporations.
Inheritance rights in Sharia law tend to favor men. Typically a woman will receive one half the amount of inheritance her male counterpart would have received. The property distribution allowed by Shariah law prescribes that 1/3 of the property may go to bequests and the rest, after debts, is distributed to family members under the intestacy rules of Sharia law.
There are two forms of marriage under Sharia law, the nikah and the nikah mut’ah. Essentially the nikah is an “official” marriage where there is a dowry given to the bride and a contract of marriage signed. A nikah marriage entitles the couple to inheritance rights. Under Sharia law a man is permitted to have up to 4 nikah wives.
The second common type of marriage is the nikah mut’ah. This second type of marriage is often known as a “Haram.” It is a marriage that lasts for a specific period of time and at the end of a prescribed period the marriage is dissolved. Women in nikah mut’ah marriages do not get inheritance rights and the husband is not responsible for the wife’s economic well-being. A nikah mut’ah marriage does not count towards the 4 wives allowed by Sharia law.
Under Shi’a divorce law, a man may divorce upon telling her of his intentions. Under Sunni law it must be witnessed by 4 individuals. All aspects are controlled by Sharia law, including child support.
Sharia legal system
The procedural and substantive aspects of Sharia law are different in many respects from those known to people in this country. First and foremost, there are no juries or attorneys. The trial consists of strictly the judge, plaintiff and defendant. There is no discovery, no cross-examination of witnesses, no stare decisis (the following of case precedents) and no codified statutes.
There are 3 categories of cases, Qisas, hududd and tazir. The Qisas is the equivalent of a personal injury action. It encompasses all cases from murder to battery. In these cases, upon conviction, the defendant or his family are the ones who decide upon the sentence, which can range from death or dismemberment to compensation.
The hududd is the second kind of case. These are cases that are brought before the court based solely on violations of the Qur’an. They include: adultery, blasphemy, defamation, sodomy, theft, intoxication, and armed violence. There is no circumstantial evidence allowed and there must be 2 to 4 witnesses, who are male, to corroborate. This is one reason why women who have been raped or abused are often treated as the criminals in Sharia society.
The third type of case is the tazir. This encompasses all other crimes.
Sharia law and the United States legal system
Sharia law has become an increasing concern in the United States. Many European countries have adopted a policy of allowing Sharia law in some contexts. The English government has made it possible so that a number of Sharia courts of law exist where Muslims may settle actions involving divorce, contracts, and estates in the Muslim way.
Sharia law has not taken that course in this country and many legal cases have weighed heavily on the institution of Sharia law in the American legal system. In one case a wife wished to get a restraining order against her husband for because he would forcibly rape and abuse his wife. The man contended that Sharia law allowed him to do this and he should the restraining order should not be granted. The trial court granted the husbands motion but on appeal the appellate court ruled that Sharia law should not excuse him from the state’s criminal code.
In all the courts in this country are open to interpreting Sharia law in situations involving divorce, family, and estates but every jurisdiction is different and the case law is not one sided in the least. Last year Oklahoma passed a voter referendum known as the “save our state amendment.” The referendum made it law to prohibit judges in Oklahoma courts to consider Sharia, as well as international law when deciding cases. There are many arguments for its unconstitutionality, namely that it violates the separation of powers in that the legislature cannot interfere with the workings of the judicial system. Immediately after the passage of the bill a Muslim American named Awad filed suit to have the bill repealed based on the establishment clause of the U.S. Constitution. The case has just gone to the 10th Circuit Court of Appeals and the results of the oral argument have not yet been determined.