Keith Mack
Sharia law is a set of rules, regulations, teachings, and values that govern the lives of Muslims. It is derived from the word 'šarīʿah', which was widely used by Arabic-speaking Jews during the Middle Ages to refer to the laws or messages of a prophet or God. While it is often associated with Islamic countries, the implementation of Sharia law varies widely. In some countries, it is the dominant force in the legal system, while in others, it co-exists with secular laws or is applied only to specific areas such as family law. Common law, on the other hand, is a legal system used in many countries with a historical connection to England and its former colonies. It is based on precedents set by previous court decisions and provides a framework for resolving disputes. So, while both Sharia law and common law provide guidance and rules, they differ in their sources, geographic reach, and the extent to which they influence legal systems.
| Characteristics | Values |
|---|---|
| Definition | Sharia is a set of rules, regulations, teachings, and values governing the lives of Muslims. |
| Basis | Sharia is based on the teachings of Prophet Muhammad and the Quran. |
| Scope | Sharia covers public and personal life, including interactions with non-Muslims, sexuality, food, rituals, leisure activities, dress, and hygiene. |
| Application | About half of the world's Muslim-majority countries have some Sharia-based laws, typically governing areas such as marriage, divorce, inheritance, and child custody. |
| Criminal Law | Only about a dozen Muslim countries apply Sharia to criminal law, in part or in full. |
| Blasphemy | Most Muslim-majority countries legislate punishments for blasphemy. |
| Modern Interpretations | Islamic modernist scholars reject or contextualize traditional Islamic jurisprudence and take a historical-critical approach to the authenticity of hadiths. |
| Secularism | Some Muslim countries have a formal secular government, including Azerbaijan, Chad, Senegal, Somalia, Tajikistan, and Turkey. |
| Dual Legal System | In some countries, people can choose whether to pursue a case in a Sharia or secular court. |
| Equality | Sharia distinguishes between men and women, with women generally at a disadvantage regarding inheritance and witness testimony. |
| Legal Recognition | Some countries, like Australia, have debated the official recognition of Sharia law due to its influence on the lives of many Muslims. |
| Pluralism | Early Islamic societies allowed different legal orders for different sectors of the population based on ethnicity and religion. |
| Flexibility | Sharia can evolve with Islamic societies to address their contemporary needs. |
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What You'll Learn
Sharia law in Muslim-majority countries
The legal systems of most Muslim-majority countries can be classified as either secular or mixed. In secular legal systems, sharia plays no role, whereas in mixed legal systems, sharia rules are allowed to influence some national laws.
Sharia-based laws exist in about half of the world's Muslim-majority countries, typically governing personal status laws such as marriage and divorce, inheritance, and child custody. These laws are based on the interpretation of the laws or message of a prophet or God. In some countries, such as parts of Nigeria, people can choose whether to pursue a case in a sharia or secular court.
In modern times, Islamic modernist scholars have grown in influence, "reopening the door of Ijtihad" (independent legal reasoning). Islamic modernists tend to reject or contextualise traditional Islamic jurisprudence and take a historical-critical approach to the authenticity of hadiths.
In some Muslim-majority countries, sharia is applied to criminal law, in part or in full. Punishments under sharia fall under three categories: hudud punishments, which are prescribed by the Quran; qisas, or eye-for-an-eye retaliatory punishments, typically for bodily harm and homicide; and tazir, a general category of discretionary laws where traditional Islamic legal sources are insufficient.
The Cairo Declaration on Human Rights in Islam, created by the OIC (Organisation of Islamic Cooperation), has been criticised by several organisations for its incompatibility with human rights, women's rights, religious freedom, and freedom of expression, by "imposing restrictions on nearly every human right based on Islamic sharia law".
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Secularism in Muslim-majority countries
While sharia law is the dominant normative force in the lives of many Muslims, it is not the same as common law. Sharia is a set of rules, regulations, teachings, and values governing the lives of Muslims. It not only governs public life but also many facets of one's personal life, including interactions with non-Muslims, sexuality, food, rituals, leisure activities, dress, and hygiene.
Sharia-based laws exist in about half of the world's Muslim-majority countries, typically as a basis for personal status laws, such as marriage, divorce, inheritance, and child custody. Only about a dozen Muslim countries apply sharia to criminal law, in part or in full. In some countries, people can choose whether to pursue a case in a sharia or secular court.
Secularism, on the other hand, advocates for a separation between religion and state affairs. There are a number of Muslim-majority countries that define themselves as or are regarded as secular. These include:
- Turkey: The Turkish Constitution explicitly defines the country as a secular state, and since the founding of the Republic of Turkey, religion has been separated from state affairs.
- Kazakhstan: While Islam plays a significant cultural role, Kazakhstan maintains a secular constitution and exercises tight control over religious activities to prevent extremism.
- Tunisia: Tunisia is a notable example of a Muslim-majority nation with a secular governance model. Although Islam is the state religion according to the constitution, Tunisia has implemented significant secular reforms, particularly in terms of women's rights and civil liberties.
- Indonesia: Indonesia, the world's largest Muslim-majority country, is a secular state based on the Pancasila ideology, which includes belief in one God but promotes religious tolerance.
- Senegal: Senegal, with a Muslim majority, is a secular state as defined by its constitution. Islam is culturally influential, but the government operates on secular principles.
- Mali: Islam is deeply rooted in Mali's culture, but governance is based on secular principles, and religious institutions and Islamic law do not play a formal role in the government.
- Kosovo: Although the majority of Kosovars identify as Muslim, the country follows a strictly secular political system, with religion playing a minor role in public life.
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Sharia law in non-Muslim-majority countries
Sharia law, or Islamic law, is a set of rules, regulations, teachings, and values that govern the lives of Muslims. It covers various aspects of life, including public and personal life, such as interactions with non-Muslims, sexuality, food, rituals, leisure activities, dress, and hygiene. While it is the dominant normative force in the lives of Muslims worldwide, its adoption and implementation vary in different countries.
In Muslim-majority countries, Sharia law is incorporated to varying degrees into the legal system. About half of these countries have Sharia-based laws, mainly governing personal status laws, such as marriage, divorce, inheritance, and child custody. A smaller number of Muslim-majority countries apply Sharia law to criminal law, with some legislating punishments for blasphemy. The extent of Sharia law's influence in these countries depends on factors such as the country's constitution, the interpretation of Sharia, and the coexistence of secular and religious legal systems.
In Muslim-minority countries, the adoption of Sharia law is a topic of debate. Some countries recognize the use of Sharia-based family laws for their Muslim populations, allowing them to resolve disputes related to family and property matters according to Islamic principles. For example, in Germany, Sharia rules on domestic relations are recognized by courts in certain cases involving Muslims who are not German citizens. In Australia, Muslims regulate their lives according to Sharia, especially in matters of marriage, divorce, custody, inheritance, and commercial dealings. However, the application of Sharia law in these countries is often unofficial and unregulated, leading to concerns about accountability and protection for those adhering to it.
The spread of codified state laws and Western-style legal education in the modern world has influenced the interpretation and implementation of Sharia law. While fundamentalists advocate for the strict application of "pure Sharia," modernists argue for interpreting it in line with human rights, democracy, minority rights, freedom of thought, and gender equality. The compatibility of Sharia law with these contemporary principles is a subject of ongoing debate and varies across different countries and legal contexts.
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The role of Islamic scholars in interpreting Sharia law
Sharia, or Islamic law, is derived from two main sources: the Quran, which is considered the direct word of God, and hadith—thousands of sayings and practices attributed to the Prophet Mohammed that collectively form the Sunna. It is a comprehensive legal and ethical system that guides the personal religious practices of Muslims worldwide.
Sharia is not a static set of laws, but rather an interpretive tradition of Muslim scholars. Interpreting Sharia requires deep knowledge of the Quran and Sunna, fluency in Arabic, and expertise in legal theory. The process of interpreting Sharia is called "fiqh", which means understanding. It is a human process that is prone to error and dependent on human understanding, and it is subject to conditions and times specific to a particular community of believers.
Islamic law has evolved through various historical phases, resulting in a complex system of jurisprudence. The primary sources of Islamic law include the Quran, Sunnah (the practices and sayings of the Prophet Muhammad), qiyas (analogical reasoning), ijma (consensus of scholars), and local customs. The Ja’fari school of Shia Islam places significant importance on the teachings of the Imams and emphasizes the role of independent reasoning (ijtihad) among its scholars.
Muslim scholars have given a broad definition of Sharia, reflecting the diversity of interpretations on how Muslims understand and practice their faith. Interpretations of Sharia can vary significantly depending on who is interpreting them and the specific cultural and historical context. The role of traditional ulema (Islamic scholars) in interpreting Sharia has been challenged in modern times by legal professionals trained in secular legal systems, leading to a dynamic interaction between classical jurisprudence and modern legal practices.
Islamic law is often at the center of debates, particularly concerning women’s rights, gender equality, and the balance between tradition and modernity. Various reform movements have emerged, advocating for legal changes that align Sharia with contemporary societal values. These discussions have resulted in both progressive reforms and significant backlash from conservative factions, illustrating the complexities involved in interpreting and implementing Islamic law in modern contexts.
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The historical development of Sharia law
Sharia law, or 'šarīʿah', is derived from the Arabic for 'God's law' and is the religious law of Islam. It is seen as a set of divine commands from God, guiding Muslims to live moral lives and grow closer to God. It is derived from two sources: the Quran, which is considered the word of God, and the Hadith, which are the sayings and practices of the Prophet Mohammed. In Islamic theology, Mohammed is considered the most pious of all believers, and his actions became a model for all Muslims.
Sharia law has developed over time, with legal schools emerging to reflect the preferences of different societies and governments. The process of interpreting Sharia, known as 'fiqh', developed over hundreds of years after Mohammed's death in the seventh century. The legal schools of Sunni Islam, such as Hanafi, Maliki, Shafi'i and Hanbali, developed methodologies for deriving rulings from scriptural sources using a process known as 'ijtihad'. This concept refers to independent legal reasoning and was adopted by Shiism later on.
Historically, Sharia law was spread and enforced by Islamic empires, such as the Ottoman Empire, and through colonisation by European powers. Today, many Muslim-majority nations remain legally pluralistic, with family law and inheritance matters for Muslims being heard in Sharia courts, while non-Muslims take their cases to civil courts.
Sharia law covers a wide range of topics, from public life to personal matters. It includes laws on interactions with non-Muslims, sexuality, food, rituals, leisure activities, dress, and hygiene. It also covers marriage, divorce, inheritance, and child custody, and criminal law. The scope of Sharia law is broad, regulating relationships not only with neighbours and the state but also with God and one's own conscience. It includes ritual practices such as daily prayers, almsgiving, fasting, and pilgrimage.
In modern times, there is a growing influence of Islamic modernist scholars who take a critical approach to traditional Islamic jurisprudence. These scholars aim to balance modern needs with Islamic principles. However, Islamist militant groups have also embraced puritanical interpretations of Sharia, often with violent and extreme methodologies.
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Frequently asked questions
Sharia law, also known as Islamic law, is a set of rules, regulations, teachings, and values that govern the lives of Muslims. It addresses both personal and communal aspects of life, including religious observances such as prayer and fasting, as well as worldly matters such as marriage, inheritance, and business affairs.
No, they are not the same. Common law is a legal system based on precedents and traditions, while Sharia law is a religious law based on the teachings of Islam. However, in some Muslim-majority countries, Sharia law is incorporated into the legal system to varying degrees, especially in family law and personal status laws.
About half of the world's Muslim-majority countries have some form of Sharia-based laws, including countries like Saudi Arabia, Iran, Pakistan, and Afghanistan. These laws often govern areas such as marriage, divorce, inheritance, and child custody. Only about a dozen Muslim countries apply Sharia law to criminal law.
In Western countries like the United States and Australia, Sharia law is not officially recognized as a legal system. However, Muslims in these countries may choose to follow Sharia law in their personal lives, as long as it does not contradict the country's laws and constitution.
Sharia law has been criticized for its treatment of women, with traditional interpretations placing them at a disadvantage in areas such as inheritance and witness testimony. Additionally, there are concerns about the lack of regulation and accountability in informal Sharia courts operating in Western countries.
