Islamic Shari’ah: Legal System

Shari’ah Means “a waterway that leads to a main water source” Means “a waterway that leads to a main water source” Divine laws, codes, rules of conduct intended to benefit individuals and society Divine laws, codes, rules of conduct intended to benefit individuals and society “then we gave you a sharia in religion, follow it, and do not follow the lust of those who do not know” (Qu’ran 45:18) “then we gave you a sharia in religion, follow it, and do not follow the lust of those who do not know” (Qu’ran 45:18)

Terms Fard (Compulsory) – performance is rewarded and omission is punishable Fard (Compulsory) – performance is rewarded and omission is punishable Mandub (Recommended) – performance is rewarded but omission is not punished Mandub (Recommended) – performance is rewarded but omission is not punished Mubah (Permitted) – actions permitted by silence Mubah (Permitted) – actions permitted by silence Makruh (Disliked) – actions disapproved but not punishable Makruh (Disliked) – actions disapproved but not punishable Haram (Forbidden) – actions punishable by law Haram (Forbidden) – actions punishable by law

Sources of Shari’ah Qu’ran Qu’ran Sunnah/Hadith Sunnah/Hadith Ijmah (community consensus) Ijmah (community consensus) Qiyas (reasoned deduction) Qiyas (reasoned deduction)

Code of Behaviour and Conduct Worship and religious obligation Worship and religious obligation Modest behaviour and moral conduct Modest behaviour and moral conduct Business and social dealings Business and social dealings Marriage and divorce Marriage and divorce Inheritance Inheritance Politics and economics Politics and economics Penal laws Penal laws

Application of Shari’ah Religion – obligation of preserving, learning and spreading the religion Religion – obligation of preserving, learning and spreading the religion Life – ensuring the preservation of human life including marriage, eating and living Life – ensuring the preservation of human life including marriage, eating and living Intellect – forbids things which weaken intellect such as drugs and alcohol Intellect – forbids things which weaken intellect such as drugs and alcohol Lineage – marriage protects lineage Lineage – marriage protects lineage Wealth – ensures fair dealing and economic justice Wealth – ensures fair dealing and economic justice

Interpretation of Shari’ah Faulty interpretation can be catastophic Faulty interpretation can be catastophic Some leaders chose personal gain rather than implementation of the actual Qur’an Some leaders chose personal gain rather than implementation of the actual Qur’an Problems in some countries such as Pakistan and Afghanistan Problems in some countries such as Pakistan and Afghanistan Lack of protection for women in particular Lack of protection for women in particular

Solutions to the Problems Greater understanding of Qur’an and Sunnah Greater understanding of Qur’an and Sunnah Adoption of forgiveness and tolerance Adoption of forgiveness and tolerance Greater role of the Council of Islamic Ideology in forming judgements Greater role of the Council of Islamic Ideology in forming judgements Ibn al-Qayyim says: Ibn al-Qayyim says: “Any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shariah, even if it is claimed to be so according to some interpretations” “Any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shariah, even if it is claimed to be so according to some interpretations”

Taliban Shari’ah Department for the Promotion of Virtue and the Suppression of Vice Department for the Promotion of Virtue and the Suppression of Vice Punishments for breaking Shari’ah include public amputations, executions by stoning, public hanging or shooting Punishments for breaking Shari’ah include public amputations, executions by stoning, public hanging or shooting Control of media through propaganda Control of media through propaganda Theft, adultery and crimes against religious laws are punishable by execution Theft, adultery and crimes against religious laws are punishable by execution Women must wear the burqa at all times and are not allowed an education, talking to a male, travelling without a male relative, working Women must wear the burqa at all times and are not allowed an education, talking to a male, travelling without a male relative, working

Rape Case in Saudi Arabia November 2007 – rape victim was punished for riding in a car with a man who was not a relative and received 90 lashes November 2007 – rape victim was punished for riding in a car with a man who was not a relative and received 90 lashes She was further sentenced to 6 months in prison and 200 lashes after she complained about the treatment she received during the court case and the lenient sentences of the men who raped her She was further sentenced to 6 months in prison and 200 lashes after she complained about the treatment she received during the court case and the lenient sentences of the men who raped her

Case Study: The Hand of a Thief Quranic Verse: ‘The thief, male or female, cut off their hand in retribution for what they have done, an exemplary punishment from God, for God is mighty and wise’ (Quran 5:38). Quranic Verse: ‘The thief, male or female, cut off their hand in retribution for what they have done, an exemplary punishment from God, for God is mighty and wise’ (Quran 5:38). Hadith: ‘Do not cut off the hand of the thief for less than ¼ dinar’ ≈ $25 Hadith: ‘Do not cut off the hand of the thief for less than ¼ dinar’ ≈ $25 Companion Ruling: Umar suspended the punishment during famine (aims of the Shariah) Companion Ruling: Umar suspended the punishment during famine (aims of the Shariah)