Keith Mack
Sharia law, the system of religious laws within Islam, is derived from the Quran and Hadith. It covers a wide range of topics, from criminal law to personal practices such as lifestyle and worship. While some view it as unchangeable, others argue that it can and should be adapted to meet the evolving needs of modern Islamic societies. This debate has sparked controversy, with some countries seeking to ban Sharia law and others attempting to incorporate it into their legal systems. This paragraph will explore the question: Can Sharia law be changed?
Characteristics of Sharia Law
| Characteristics | Values |
|---|---|
| Nature | Sharia law is a system of religious laws within Islam, derived from the Quran and Hadith. |
| Applicability | Sharia law deals with all aspects of a Muslim's life, including family, relationships, commercial, political, administrative, and criminal law. |
| Interpretations | Interpretations of Sharia law vary across different places and times. Today, interpretations are usually limited to rules established by early scholars before 900 CE. |
| Reform | Sharia law can be adapted to meet present social needs and changing social conditions. |
| Equality | Efforts are made to achieve justice and equality, particularly for Muslim women, by re-interpreting Sharia law. |
| Emancipation | In some cases, Sharia law has been deemed out of line with contemporary Muslim societies, especially in urban areas with changing social dynamics and movements for women's emancipation. |
| Judicial Independence | Judicial decisions in some countries, like Pakistan, have endorsed the right of independent interpretation of the Quran, allowing for changes in Islamic family law. |
| Criticism | Aspects of Sharia law, such as hudud, have been criticized as problematic in the context of modern values and social benefits. |
| Flexibility | Sharia law is viewed as flexible and capable of evolving with Islamic societies to address their contemporary needs. |
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What You'll Learn
Sharia law and democratic principles
Sharia law is the system of religious laws within Islam, derived from the Quran. It deals with all aspects of a Muslim's life, including family law. In the early centuries of Islam, traditional Islamic family law reflected the patriarchal nature of Arabian tribal society. However, in contemporary times, certain institutions and standards of that law have been deemed incompatible with the circumstances of modern Muslim societies, particularly in urban areas, where tribal ties have disintegrated and movements for the emancipation of women have arisen.
This has led to a reformist movement within the Middle East, which seeks to adapt Sharia law to meet present social needs. While the doctrine of taqlid (unquestioning acceptance) was initially observed, reforms have been justified in terms of Islamic jurisprudential theory, framing them as a new but legitimate version of Sharia. For example, in Khurshīd Bībī v. Muḥammad Amīn (1967), Pakistan's Supreme Court held that a Muslim wife could obtain a divorce by paying suitable compensation to her husband, based on their interpretation of a relevant Quranic verse. This decision contradicted traditional Sharia law, which states that khulʿ (a form of divorce where a wife pays for her release) is entirely dependent on the husband's consent.
In some countries, there has been controversy over the implementation of Sharia law. In the United States, various states have banned Sharia law or passed ballot measures prohibiting courts from considering religious law. Similarly, in Canada, the province of Ontario banned all forms of faith-based arbitrations, including Islamic and Jewish tribunals. In the United Kingdom, the former Archbishop of Canterbury, Rowan Williams, suggested that it was "inevitable" that elements of Sharia would be incorporated into British law, sparking media controversy.
Despite these controversies, polls conducted by Gallup and Pew Research Center in Muslim-majority countries found that most Muslims see no contradiction between democratic values and religious principles. Authors like Fahmi Huwaidi and Tariq al-Bishri have constructed Islamic justifications for full citizenship of non-Muslims in an Islamic state, while others have argued for pluralism and freedom of thought through non-literal interpretations of religious texts. Abdolkarim Soroush has proposed a "religious democracy" based on democratic, tolerant, and just religious thought. Islamic liberals argue for the necessity of constantly reexamining religious understanding, which can only occur in a democratic context.
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The emancipation of women
Sharia law is the system of religious laws within Islam, guiding the personal religious practices of Muslims worldwide. It is derived from the Quran, considered the direct word of God, and the Hadith, or the deeds and sayings of the Prophet Muhammad. While it is a code of ethical conduct about worship and charity, it also deals with crime. Sharia law divides offences into two categories: "Hadd" offences, which are serious crimes with set penalties, and "tazir" crimes, where the punishment is left to the judge's discretion.
Traditional Islamic family law reflects the patriarchal nature of Arabian tribal society in the early centuries of Islam. In contemporary times, certain institutions and standards of that law have been deemed out of line with the circumstances of modern Muslim societies, especially in urban areas where tribal ties have disintegrated and movements for the emancipation of women have arisen.
In the early stages of the reform movement, the doctrine of taqlīd (unquestioning acceptance) was formally observed. The juristic basis of reform lay in the doctrine of siyāsah, or “government,,” which allows the political authority to make administrative regulations. The first type of regulation concerns procedure and evidence and restricts the jurisdiction of the Sharia courts, instructing them not to hear cases that do not meet defined evidential requirements.
In Pakistan, the country's Supreme Court has endorsed the right of independent interpretation of the Quran. For example, in Khurshīd Bībī v. Muḥammad Amīn (1967), the court held that a Muslim wife could obtain a divorce by paying compensation to her husband. This form of divorce, known as khul̀, is a contract between spouses and is dependent on the husband's consent under traditional Sharia law.
In Indonesia, several Sharia regional restrictions have been deemed discriminatory against women, including the requirement to wear a headscarf and a ban on curfews for women. The Ministry has the authority to nullify contracts that violate regional Sharia norms that do not accommodate women's liberation. Critical legal scholarship is crucial to safeguarding women's rights within the framework of Islamic law and can contribute to improving the legal framework to deliver gender equality and social justice.
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Secularism and religious law
Secularism is a movement that advocates for the separation of religion and government, often referred to as the separation of church and state. It seeks to conduct human affairs based on naturalistic considerations, without the involvement of religion. Secularism does not necessarily reject or oppose religion but aims to minimise its role in the public sphere and ensure that the state does not support or enforce any religious laws. This separation is said to enhance democracy by protecting the rights of religious minorities and eliminating discrimination based on religion.
In the context of religious law, such as Sharia law within Islam, secularism promotes the replacement of religious laws with civil laws. Sharia law, derived from the Quran, governs various aspects of a Muslim's life, including family matters. While direct consultation of religious law is rare in US jurisprudence, it may accommodate the religious beliefs of individuals in specific circumstances, mainly in arbitration and family law. For instance, couples may choose to construct marriage contracts and conduct divorces according to their religious beliefs.
However, the application of Sharia law in civil jurisdictions has been controversial. Some countries, like the United States, have banned its use in courts, emphasising the need for secular legislation. In 2014, several US states, including Alabama, Arizona, and Louisiana, passed measures prohibiting their courts from considering religious law. Similarly, the Canadian province of Ontario banned all forms of faith-based arbitrations in 2006, impacting both Islamic and Jewish groups.
On the other hand, some countries have adapted religious laws to meet contemporary social needs. For example, judicial decisions in Pakistan have endorsed the independent interpretation of the Quran, leading to reforms in Islamic family law. Turkey, a Muslim-majority nation, adopted secularism as a state ideology in 1923, abandoning Sharia law and adopting the Swiss Civil Code instead. These reforms reflect the changing circumstances of modern life and the need to adapt religious laws to align with contemporary values, particularly regarding the emancipation of women in urban areas.
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LGBTQI rights and sexual diversity
Sharia law is based on interpretations of Islamic teachings. The extent to which Sharia law can be changed is a matter of debate, with some arguing for a more progressive interpretation of Islamic law and others adhering to a more traditional interpretation.
Regarding LGBTQI rights and sexual diversity, there are differing views and practices within Muslim-majority countries and communities. While some countries, such as Malaysia and Indonesia (excluding the province of Aceh), do not criminalize homosexual acts between consenting adults, other countries have imposed harsh punishments, including the death penalty, for "same-sex sexual acts" with reference to Sharia-based laws. For example, in 2019, Brunei faced criticism for its intention to impose the death penalty for homosexual acts, while in Egypt, gay men have been prosecuted under general public morality laws despite the absence of a de jure law criminalizing homosexual behavior.
Within the Muslim community, there are organizations that support and empower LGBTQ+ Muslims, such as the Muslim Alliance for Sexual and Gender Diversity and Muslims for Progressive Values. These groups advocate for a more inclusive interpretation of Islamic teachings, emphasizing human dignity and social justice. They have established Unity Mosques in several cities in the United States and host annual retreats for LGBTQ+ Muslims.
Kugle, an Islamic scholar, offers an interpretation of the Quran that celebrates diversity in creation and human societies, allowing for a positive view of homosexuality as a natural aspect of human diversity. However, this interpretation has been critiqued by other scholars, such as Mobeen Vaid, who argue for a more traditional reading of the sacred texts that uphold a heteronormative binary of gender identification and sexual orientation.
The perception and treatment of LGBTQI individuals within the Islamic community vary, and it is influenced by cultural norms and geographical factors. While some Muslims strive to preserve their cultural and religious traditions, they may also feel threatened by what they perceive as a clash between their values and those of Western countries, leading to a defensive stance on issues like sexual and gender diversity.
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The role of Islamic scholars
Sharia law is derived from the Quran and constitutes a system of duties that are incumbent upon all Muslims. It deals with all aspects of a Muslim's life, ranging from family and relationships to commercial, political, administrative, and criminal law.
Islamic scholars or imams have played a significant role in interpreting and applying Sharia law throughout history. In the premodern period, the ʿulamāʾ (Muslim religious scholars) held a monopoly over the interpretation of Sharia law. However, since the 19th century, their monopoly has been challenged by Westernized elites and laypeople, leading to a diverse array of interpretations. Islamic scholars continue to influence the theoretical and practical applications of Sharia law, and their interpretations can shape the legal systems of Muslim-majority countries.
The work of Egyptian Islamic scholar Muhammad ʿAbduh (1849–1905) has been particularly influential in liberal reformist thought. Abduh's interpretation of Sharia law focused on adapting it to changing social and cultural contexts. Additionally, Islamic scholars have played a role in distinguishing different attitudes towards Sharia and democracy among contemporary Muslims. Scholars like John Esposito and Natana J. DeLong-Bas have identified four prominent attitudes: advocacy of democratic ideas and their compatibility with Islam, support for democratic procedures with religious objections to some aspects of Western democracy, rejection of democracy as a Western import, and advocacy for Sharia law as the only legitimate system.
In conclusion, Islamic scholars have played a crucial role in interpreting, applying, and adapting Sharia law to changing social and cultural contexts. While traditional Sharia law is considered immutable by some, reformist scholars have advocated for a more flexible approach that balances religious rituals with social welfare. The influence of Islamic scholars on Sharia law continues to shape the legal systems of Muslim-majority countries, particularly those with mixed legal systems that allow for the influence of Sharia rules in national laws.
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Frequently asked questions
Yes, Sharia law can be changed. Sharia law is the system of religious laws within Islam and is derived from the Quran. It deals with all aspects of a Muslim's life, ranging from family and relationships to commercial, political, administrative, and criminal law. Over time, Sharia law has been adapted in various ways to meet the changing needs of Islamic societies.
In the early 20th century, Turkey abandoned Sharia law and adopted the Swiss Civil Code, citing the need for a more modern and simple legal framework. In Pakistan, the Supreme Court endorsed the right of independent interpretation of the Quran, allowing wives to obtain a divorce by paying compensation to their husbands, despite this form of divorce traditionally requiring the husband's consent.
One challenge to changing Sharia law is the doctrine of taqlid, which refers to the unquestioning acceptance of religious teachings. Reformists must justify changes to Sharia law in terms of Islamic jurisprudential theory to frame them as legitimate interpretations. Additionally, there may be resistance from those who view Sharia law as immutable and incompatible with secular or democratic principles.
