Sharia
Sharia is the body of Islamic religious law based on scriptures of Islam, particularly the Quran and hadith. In Islamic terminology, sharia refers to immutable and intangible divine law, in contrast to fiqh, which refers to its interpretations by Islamic scholars through madhhab, as enacted by an Islamic court. Sharia has always been used alongside customary law in Islamic history. It has been elaborated upon and developed over the centuries by legal opinions issued by qualified jurists—reflecting the tendencies of different schools. It was integrated with various economic, penal and administrative laws issued by Muslim rulers and implemented for centuries by judges in the courts of Muslim locales until modernity, when secularism was gradually adopted in Islamic societies.
Traditional theory of Islamic jurisprudence recognizes four sources for sharia: the Quran; the sunnah ; ijma, which may be understood as —a whole Islamic community consensus—or ; and analogical reasoning. It distinguishes two principal branches of law: rituals and social dealings ; subsections include family law, relationships, and criminal law on a wide range of topics, assigning actions—capable of settling into different categories according to different understandings—to categories mainly as: mandatory, recommended, neutral, abhorred, and prohibited. Beyond legal norms, Sharia also enters many areas that are considered private practises today, such as beliefs, worship, ethics, clothing, and lifestyle, and gives to those in command duties to intervene and regulate them.
Over time, with the insight brought by sociological changes based on studies, legal schools have emerged reflecting the preferences of particular societies and governments, as well as Islamic scholars or imams on theoretical and practical applications of laws and regulations. Legal schools of Sunni Islam — Hanafi, Maliki, Shafiʽi and Hanbali etc.— developed methodologies for deriving rulings from scriptural sources using a process known as ijtihad, a concept adopted by Shiism in much later periods meaning mental effort. Although Sharia is presented in addition to its other aspects by the contemporary Islamist understanding, as a form of governance some researchers approach traditional sīrah narratives with skepticism, seeing the early history of Islam not as a period when Sharia was dominant, but a kind of "secular Arabic expansion" and dating the formation of Islamic identity to a much later period.
Approaches to Sharia in the 21st century vary widely, and the role and mutability of Sharia in a changing world has become an increasingly debated topic in Islam. Beyond sectarian differences, fundamentalists advocate the complete and uncompromising implementation of "exact/pure sharia" without modifications, while modernists argue that it can/should be brought into line with human rights and other contemporary issues such as democracy, minority rights, freedom of thought, women's rights and banking by new jurisprudences. In fact, some of the practices of Sharia have been deemed "incompatible
Etymology and usage
Contemporary usage
The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality. For example, sharīʿat Mūsā means "law" or "religion of Moses" and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith. Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims. For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to Sharia. Sharia is the first of Four Doors and the lowest level on the path to God in Sufism and in branches of Islam that are influenced by Sufism, such as Ismailism and Alawism. It is necessary to reach from Sharia to Tariqa, from there to Ma'rifa and finally to haqiqa. In each of these gates, there are 10 levels that the dervish must pass through.Jan Michiel Otto summarizes the evolutionary stages of understanding by distinguishing four meanings conveyed by the term Sharia in discourses.
- Divine, abstract sharia: In this sense, Sharia is a rather abstract concept which leaves ample room for various concrete interpretations by humans.
- Classical sharia: This is the body of Islamic rules, principles and cases compiled by religious scholars during the first two centuries after Muhammad, including Ijtihād
- Historical sharia: This includes the entire body of all principles, rules, cases and interpretations developed and transmitted throughout a history of more than one thousand years across the entire Muslim world, since the closing of the gate of free interpretation up to the present.
- Contemporary sharia: This contains the full spectrum of principles, rules, cases and interpretations developed and applied at present. Migration, modernisation and new technologies of information and communication have decreased the dominance of the legal schools of classical sharia.
Etymology
The primary meanings of the Arabic word šarīʿah, derived from the root š-r-ʕ. The lexicographical studies records two major areas of the word can appear without religious connotation. In texts evoking a pastoral or nomadic environment, šarīʿah and its derivatives refers to watering animals at a permanent water-hole or to the seashore. Another area of use relates to notions of stretched or lengthy. The word is cognate with the Hebrew saraʿ and is likely to be the origin of the meaning "way" or "path". Some scholars describe it as an archaic Arabic word denoting "pathway to be followed", or "path to the water hole" and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.Use in religious texts
In the Quran, and its cognate occur once each, with the meaning "way" or "path". The word was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word in the 10th-century Arabic translation of the Torah by Saadia Gaon. A similar use of the term can be found in Christian writers. The Arabic expression is a common translation of and νόμος τοῦ θεοῦ. In Muslim literature, designates the laws or message of a prophet or God, in contrast to, which refers to a scholar's interpretation thereof.In older English-language law-related works in the late 19th/early 20th centuries, the word used for Sharia was sheri. It, along with the French variant chéri, was used during the time of the Ottoman Empire, and is from the Turkish şer' borrowed from Arabic šarʿ which is from the same root as šarīʿah.
Historical origins
According to the traditionalist Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development" and the emergence of Islamic jurisprudence also goes back to the lifetime of Muhammad. In this view, his companions and followers took what he did and approved of as a model and transmitted this information to the succeeding generations in the form of hadith. These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifa, Malik ibn Anas, al-Shafi'i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools of Sunni jurisprudence.Modern historians have presented alternative theories of the formation of fiqh while they have accepted the general outlines of the traditionalist account at first. In the late 19th century, an influential revisionist hypothesis was advanced by Ignác Goldziher and elaborated by Joseph Schacht in the mid-20th century. Schacht and other scholars argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs, the initial Muslim efforts to formulate legal norms
regarded the Quran and Muhammad's hadiths as just one source of law, with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources. According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications.
After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad's companions. In his view, the real architect of Islamic jurisprudence was al-Shafi'i, who formulated this idea and other elements of classical legal theory in his work al-risala, but who was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths.
File:Safaitic script with a figure of a camel on a red sandstone fragment, from es-Safa, currently housed in the British Museum.jpg|thumb|left|Safaitic script with a figure of a camel on a red sandstone fragment, from es-Safa, currently housed in the British Museum
Some articles that may be considered precursors of Sharia law and rituals can be found in the pre-Islamic Arabic religions; pilgrimage is mentioned in pre-Islamic Safaitic-Arabic inscriptions, and continuity can be observed in certain details, especially in today's hajj and umrah rituals. The veiling order, which distinguishes between slaves and free women in Islam, also coincides with similar distinctions seen in pre-Islamic civilizations.
File:Code of Hammurabi IMG 1937.JPG|thumb|alt=Cuneiform on the stele. Refer to adjacent text|In the laws of Hammurabi, an eye for an eye was applied if a free man gouged out the eye/broke the bone of another free man of equal status; otherwise, a monetary penalty was paid.
Qisas was a practice used as a resolution tool in inter-tribal conflicts in pre-Islamic Arab society. The basis of this resolution was that a member from the tribe to which the murderer belonged was handed over to the victim's family for execution, equivalent to the social status of the murdered person. The "condition of social equivalence" meant the execution of a member of the murderer's tribe who was equivalent to the murdered person. For example, only a slave could be killed for a slave, and a woman for a woman. In other cases, compensatory payment could be paid to the family of the murdered. On top of this pre-Islamic understanding added a debate about whether a Muslim can be executed for a non-Muslim during the Islamic period. The main verse for implementation in Islam is Al Baqara 178: "Believers! Retaliation is ordained for you regarding the people who were killed. Free versus free, slave versus slave, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well."
Modern historians generally adopt intermediate positions regarding origins, suggesting that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified others, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the community. Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics. At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles. As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder. In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.