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home > by publication type > backgrounder > Islam: Governing Under Sharia
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| Author: | Sharon Otterman |
|---|
March 14, 2005
Sharia, or Islamic law, influences the legal code in most Islamic countries, but the extent of its impact varies widely. Avowedly secular Turkey is at one extreme. It doesn't base its laws on the Quran, and some government-imposed rules--such as a ban on women's veils--are contrary to practices often understood as Islamic. At the devout end of the spectrum are the Islamic Republic of Iran, where mullahs are the ultimate authority, and Saudi Arabia, a monarchy where the Quran is considered the constitution. In 1959, Iraq modified its sharia-based family law system and became one of the Middle East's least religious states. Whether sharia should be more strictly applied in post-Saddam Hussein Iraq is one of the most divisive issues facing the transitional government.
Literally, it means "path," or "path to water," says Clark Lombardi, an expert on Islamic law at the University of Washington's School of Law. In its religious sense, it means God's law'the body of commands that, if followed, will provide the path to salvation. According to Islamic teaching, sharia is revealed in divine signs that must be interpreted by humans. The law is derived from four main sources:
No. Sharia governs all aspects of life, from relations between men and women to ethics in business and banking. Some aspects of sharia have become part of modern legal codes and are enforced by national judicial systems, while others are a matter of personal conscience. Entirely secular law is not an option under a classical interpretation of Islam, experts say. "In Islam, there is no separation between the secular and the sacred. The law is suffused with religion," says David Powers, a professor of Islamic law and history at Cornell University.
No. Five major schools of sharia developed after the death of the Prophet Mohammed and during the Middle Ages--four in the Sunni tradition and one in the Shiite tradition. A school consists of a guild, or group of scholars, that developed specific interpretations of Islamic law; over the centuries, its precedents became legally binding. Muslims in different geographical regions favored different sharia schools, a practice that continues to this day.
Middle Eastern countries of the former Ottoman Empire favor Hanafi school doctrine, while North African countries prefer Maliki doctrine; Indonesia and Malaysia favor Shafi'i doctrine; Saudi Arabia adheres to Hanbali doctrine; and Iran follows the Shiite Jaafari school.
They are broadly similar, because they are derived from the same sacred sources, experts say. However, some schools take a more literal approach to the texts; others allow for looser interpretations. And there are also important differences between Sunni and Shiite sharia. For example, Shiites recognize a practice called muta, or temporary marriage; Sunnis do not. And Shiite inheritance laws differ from Sunni practices.
Not necessarily. Modernist thinkers since the 19th century have argued for new interpretations of Islamic law, and actual practice varies for each individual. "The Islamic sharia is not an easily identifiable set of rules that can be mechanically applied, but a long and quite varied intellectual tradition," says Nathan Brown, an expert on Arab constitutionalism at the Carnegie Endowment for International Peace.
Yes. Most Middle Eastern countries continue to incorporate some traditional sharia into their legal codes, especially in the area of personal-status law, which governs marriage, divorce, and inheritance. In other areas of the law, such as the criminal code, most Islamic nations have attempted to limit the application of traditional sharia, replacing it either with secular legislation or with laws characterized as modern interpretations of sharia. Iran and Saudi Arabia are exceptions--they claim to fully implement sharia in all areas of the law. In general, each nation's legal code is unique and reflects a variety of historical and cultural influences, experts say. Many Middle Eastern legal codes, for example, have their roots in the Napoleonic law system and the Ottoman Empire, Brown says.
Through three main routes:
Islamic banking and finance is a rapidly expanding industry that seeks to harmonize modern business practices and traditional religious norms. Classical sharia prohibits riba, the charging of interest. It also condemns excessive profits and requires Muslims to invest only in ventures that are consistent with Islamic principles; for example, investing in a brewery or casino is forbidden. The Islamic finance industry, with estimated assets of $200 billion to $300 billion, represents a small chunk of the global marketplace, but is "already playing a significant role in the financial systems in the Middle East," said John B. Taylor, U.S. under secretary of the Treasury, in a 2004 address. Some Muslim countries, including Malaysia, are making an effort to issue national bonds that comply with sharia principles. And in 2002, eight Muslim countries--Malaysia, Indonesia, Iran, Saudi Arabia, Pakistan, Sudan, Bahrain, and Kuwait--launched a new organization, the Services Board Islamic Financial, to set common standards for Islamic banking.
Many Islamic nations--such as Jordan, Kuwait, Pakistan, and Yemen--have certain criminal laws that reflect traditional Islamic practice, banning Muslims, for example, from drinking or selling alcohol. Enforcement of these laws is often spotty, and non-Muslims are generally exempted. The vast majority of Islamic nations no longer apply the traditional corporal punishments for violations of specific Quranic criminal laws. These punishments include flogging, amputation, and stoning.
Five crimes known as the Hadd offenses, Lombardi says. Because these offenses are mentioned in the Quran, committing them is considered an affront to God. They are:
Adopting hadd punishments is considered a symbol of a country’s Islamic identity, even if they are rarely carried out, Powers says. Saudi Arabia and Iran have hadd crimes on the books, as do some federal states in Nigeria. However, the most severe punishments--stoning and amputation--are inflicted sparingly, experts say, in part because the Quran insists on strict evidentiary standards. "They aren't applied in cases of doubt," Powers says. States often go beyond the Quranic safeguards to add new ones. Pakistan has hadd punishments on the books, but it has set up a series of procedural roadblocks to insure they can be enforced by the state only rarely, if ever, Lombardi says. Still, vigilante applications of hadd punishments occur in Pakistan and other parts of the Islamic world.
The traditional punishment for Islamic apostasy--leaving Islam for another religion or otherwise abandoning the Islamic faith--is death. The best-known modern case involved author Salman Rushdie, whose 1988 novel, "The Satanic Verses," offended many devout Muslims. Ayatollah Ruhollah Khomeini, the Supreme Leader of Iran, declared Rushdie an apostate and condemned him to death. In 1993, an Egyptian court ruled that the writings of Nasr Abu Zayd, a professor, were evidence of apostasy. The court ordered that Zayd be divorced from his Muslim wife (Zayd now lives with his wife in the Netherlands). The vast majority of Muslim nations no longer prescribe death for apostates. On the other hand, says Powers, "Many modern Islamic nations say they guarantee freedom of religion. But this does not necessarily include the right to speak openly against Islam and act on those ideas." Conversions from Islam to other religions are generally not permitted in Muslim countries.
Islamic principles still form the foundations of the legal code governing marriage, divorce, and inheritance in most Islamic nations. On the other hand, many nations have changed classical sharia restrictions, often to expand the rights of women. Such changes have become a major human rights and women's rights issue in the Muslim world, pitting reformists--who want to modernize the law and bring it into line with international norms--against Islamists, "who want the restoration of Islamic law lock, stock, and barrel," Powers says.
Generally speaking, no. Minorities in Muslim nations are generally governed under separate personal-status laws reflecting their own traditions, experts say. In Egypt, for example, Coptic Christians marry under Christian law, and foreigners marry under the laws of their countries of origin, Brown says. Criminal law, which is generally no longer based on sharia, applies to both foreigners and citizens.
— by Sharon Otterman, associate director, cfr.org
Weigh in on this issue by emailing CFR.org.
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