Shari’a Law

Those Eastern thinkers of the ninth century laid down, on the basis of their theology, the principle of the Rights of Man
In those very terms, comprehending the rights of individual liberty, and of inviolability of person and property, they described the supreme power in Islam, or Caliphate, as based on a contract, implying conditions of capacity and performance, and subject to cancellation if the conditions under the contract were not fulfilled
They elaborated a Law of War of which the humane, chivalrous prescriptions would have put to shame certain belligerents in the Great War (World War I)
And they expounded a doctrine of toleration of non-Muslim creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted
Count Leon Ostorog
French Jurist, 1927

Shari’a is the body of Islamic law that regulates the public and private life of Muslims living in a society where the legal system is based on the principles of Islamic jurisprudence. Shari’a, which literally means ‘the way to the water source’, is the world’s most widely used religious law, and, after common law and civil law, it is the third most common legal system in the world.

Shari’a deals with most aspects of daily life including politics, banking, business, economics, contracts, family, gender issues, hygiene, and social issues. Although not legally binding to Muslims in non-Islamic countries, Shari’a law is still used as a guide to devout behaviour.

Shari’a is not a single codified set of laws, rather it is derived from four different sources. These are the Qur’an, the Sunnah, the Ijma, and the Qiyas. Some schools of thought allow other sources if they do not conflict with these four.

The Qur’an and the Sunnah (the sayings and acts of Muhammad) are known as revealed sources, and are regarded as being divinely ordained, immutable, and relevant for all situations throughout time. The Ijma and the Qiyas are known as the Fiqh, which means deep understanding or knowledge. These are constantly evolving interpretive laws—the Ijma being derived from the consensus of Muhammad’s companions and the Qiyas developed from reasoning and analogy with laws derived from the Qur’an or Sunnah. Other sources include laws derived from general consensus of a society, or from principles established over time by Islamic jurists.

Islamic law is similar to common law in that it is not a written law, and in its use of legal precedent and reasoning by analogy. Shari’a law is believed to have played an integral role in the development of common law, and influenced the development of several civil law institutions.

According to legal scholars Lawrence Rosen and John Makdisi, several fundamental English common law institutions were derived or adapted from legal institutions in Islamic law. These are believed to have been introduced to England in part by the Normans, who had adopted Islamic legal administration after they conquered the Emirate of Sicily, and in part by returning Crusaders.

The Lafif trial in classical Maliki jurisprudence, which was developed between the eighth and eleventh centuries in North Africa and Islamic Sicily, is thought to be the precursor of the jury trials of English common law, with which it shares a number of similarities. Like the English jury, the Islamic Lafif was a body of twelve members selected from the general population. They had to swear to be truthful and were required to reach a unanimous verdict in cases between ordinary people, and their decision was legally binding on the judge. According to Professor Makdisi no other legal institution in the world shares all of these characteristics with the English jury.

Other parallels between Islamic law and common law include advocacy, ratio decidendi, legal opinion, arbitrary decision-making, discretion, freedom of religion, reasoning by analogy and distinction, consensus, equal protection, public policy, and precedent. Islamic and US law are also similar, particularly in regard to Constitutional law, where judicial interpretation of the Constitution is analogous to legal interpretations of the Qur’an (e.g. with plain meaning literalism, historical understanding originalism, and reference to underlying purpose and spirit).

The world’s first known case of drug prohibition occurred under Islamic law, which outlawed the recreational use of Hashish. Jurists in medieval Islam accepted the use of Hashish for therapeutic purposes, however, and decreed that if its medical use led to mental derangement it was exempt from punishment.

The world’s first treatise on international law was the Kitab al-Siyar al-Kabir (the Introduction to the Law of Nations). This was written during the eighth century by Muhammad ibn al-Hasan al-Shaybani (died 804), an Islamic jurist of the Hanafi school of thought. It was one of many treatises on international law produced during the Islamic Golden Age (seventh to thirteenth centuries CE). These early treaties dealt with ethics, economics, and military conduct, including the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatants during war; contracts across the lines of battle; the use of poisonous weapons; and the destruction of enemy territory.

The first European treatise on international law was produced by Hugo Grotius in the sixteenth century, eight hundred years after the Kitab al-Siyar al-Kabir.

When the Franks were defeated by Sultan al-Kamil during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how the Sultan supplied the defeated Frankish army with food:

Who could doubt that such goodness, friendship and charity come from God?
Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power¹

Early Islamic law recognized two different categories of rights. The first was civil and political rights, and the second was social, economic and cultural rights. This latter category was not recognized in the Western legal system until the International Covenant on Economic, Social and Cultural Rights in 1966. The right of privacy, which was not introduced into Western law until modern times, was recognized by Islamic law from the very beginning of Islam.

Shari’a Law led the way in sexual equality, women generally having more legal rights under Islamic law than they did under the Western legal systems until the nineteenth and twentieth centuries. Married women in France were subject to legal restrictions not imposed on their Muslim counterparts until as late as 1965. Noah Feldman, a Harvard University law professor, made the following comment on the legal status of women under British Law:

As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands
When the British applied their law to Muslims in place of Shari’a, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them—hardly progress toward equality of the sexes²

Despite the modern western perception that Shari’a law is backward and barbaric, the fact is it was the most enlightened and progressive set of laws in the world for about a thousand years, and played a major role in the development of common and international law.

Because Shari’a law is based on a set of moral principles rather than being a codified set of laws it will always be open to interpretation, and therefore abuse, by religious extremists. This also means it is open to reform, a necessary attribute of any legal system if it is to remain relevant in a world that is constantly evolving.

References

1. Weeramantry, C. G. ‘Justice Without Frontiers: Furthering Human Rights’ Brill Publishers, 1997, p. 136-7.
2. Feldman, N. ‘Why Shari’a’ New York Times, March 16, 2008.