Sharia Law, thanks to Duhaime.org

From Duhaime.org


The custom-based body of law based on the Koran and the religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are law, the latter distinguished by Islam and Muslims in their application, as Sharia or Sharia law.The sacred law of Islam; Islamic law and also referred to as Muslim law. So thorough is the integration of the justice system and Church under Sharia law that Sharia courts are essentially religious courts; judges are usually local church (Mosque) officials. Also spelled Shariah or Shari’ah and, in the USA, Shari’a. Because of the religious origin of the word, some prefer to capitalize it and others not.

The word “sharia” means “the path” or “the path to water”.

Sharia as a source of law, is, by definition, arbitrary and discretionary - some would prefer to describe it as flexible.The Oxford Dictionary of Islam proposes a distinction between sharia and fiqh as follows:
"Whereas shariah is immutable and infallible, fiqhis fallible and changeable."
Opportunistic jurists will defer to the distinction only when convenient; to propose that an unfavourable tenet of Islamic law is mere fiqh and must cede to a more favourable tenet issue from shariah. But that distinction - which limits sharia to the divinely provided law, and fiqh to the interpretation of sharia - is not universally followed. Many sources refer to fiqh as synonymous to shariah. As an example of the scope of confusion, note that the English language Oxford Dictionary of Islam is of no assistance, defining shariah using a deep Muslim tone:
"Shariah: God's eternal and immutable will for humanity as expressed in the Quran and Muhammad's example. " Sharia law - Islamic law involves not only tortuous and mostly literal interpretations of ancient Muslim traditions and Arab tribal customs, and of a religious book written in about 632 (theKoran) which took - but also modified - many of those customs. To that mix, there have been several subsequent religious texts and schools of thought (such as the Sunna), which is itself an interpretation of the Koran. Even more: to this is added a plethora of alleged sayings of the Islamic prophet Muhammad (530-632) and his successors.
Each of the approximately 50 Islamic states and countries that have, to varying degrees, Sharia law, has applied layers of doctrine upon the original religious texts resulting in a multitude of different interpretations and different legal results.
In The Legal Companion (2005), author V. Powell writes:“Muslim countries enforce the Sharia to different extents. "Iran and Saudi Arabia apply it to all areas of life....
"The Sharia is also interpreted differently within different branches of Islam.” Further, in the context of Sharia law practitioners or courts which operate outside of Muslim or Islamic states but within other jurisdictions, the practice of Sharia law is consistently represented as flexible and reconciliatory in nature; a far cry from the protestations of Muslim jurists in states which are primarily Muslim. Some countries, such as Tunisia, have hybrid systems, rejecting Sharia law in most instances yet relying it in others, such as in the area of divorce and family law, inheritance, contracts and banking. To some Sharia jurists, the Sharia applies only to Muslims and does not technically apply to non-Muslims such as Christians (eg. Malaysia and Indonesia as of 2008). In other jurisdictions, such as Sudan (as of 2008), the application of the Shari law to non-Muslims – with all the attendant punishments - is considered unfair and unjust. Thus, it is difficult to speak of Sharia as a distinct or cohesive body of law. One consistent feature is that, by design of the Islam prophet Muhammad, and his Koran, Islamic or Sharia law reaches far deeper into the control of the personal and moral life of the people who are bound to it than, for example, those jurisdictions governed by civil law or common law systems.
For example, in Sharia law, it is forbidden for post-pubescent women to expose their faces in public. The use of alcohol and the consumption of pork are prohibited. Because the governments are often theocratic, any criticism of the government is taken as blasphemy, for which the Sharia prescribes prison or death.
Sharia law is often taken to task by common law or civil law jurisdictions for the perceived cruelty and gender-bias of its content. For example, this extract from a 2006 article published in the international law review Loyola of Law School at Los Angeles:
“In 2002, a Nigerian Sharia court sentenced Amina Lawal to be stoned to death for having a child out of wedlock; in contrast, the man named as the father denied responsibility, and as a result, the court dropped charges against him.
“In another case, teenager Bariya Magazu asserted that she was raped by three men and became pregnant as a result. Because she had sex outside of marriage, a Sharia court sentenced her to one hundred lashes, even though seven people corroborated her story. The men accused of the rape received no punishment.
“The extreme bias against women is apparent in sentences of adultery or fornication under Sharia. A woman is convicted simply by becoming pregnant, but a man is not condemned unless four people can testify that they witnessed the normally private acts of adultery or fornication.
“Countries such as Nigeria impose flogging, stoning, or severing off a hand ... all of which are deterrent punishments for serious crimes mentioned in the (Koran).”

Some other common features of Sharia law, some taken from the Koran, some from subsequent legal texts:

• While in public, women must cover their faces with a Hijab.

• Men can have up to four wives and can divorce (called talaq) at their option. If they do not divorce their first wife but just abandon her, she is obliged to carry on as a married woman and cannot seek out another spouse without risking the traditional punishment for adultery: stoning. Stoning is done in public by first wrapping a person in a blanket and burying them in a deep hole exposing their head and the population gathered around is invited to throw large stones at the adulterer, the size of which Sharia law prescribes, and a sentence always fatal.

• The penalty after a fourth conviction of a homosexual act is death.

• Adoption is not allowed. Adults can become guardians of the children of others but not the legal parents through adoption.

• Sharia law prohibits dating and marriage between a Muslim and a non-Muslim and it is practically impossible for a Muslim (even a recent convert) to renounce the Muslim faith.

• Any abandonment of the Muslim faith is itself a serious crime (apostasy) with severe punishment

• Sharia law has a stringent evidentiary requirement for eye witnesses, preferably from men. Convictions for crimes cannot be based on circumstantial evidence alone.

• Vagrancy can carry tough penalties such as jail and caning.

• Generally, a person alleged to have violated Sharia laws in the states governed by them would not be pursued, or apprehended, in states not governed by Sharia laws.

• Many states which implement Sharia law have blasphemy statutes which punishes by prison or death any person who such as preaching Christianity or the distribution of Christian items.
Adherents of Sharia law believe it to be divinely inspired; as the word of God (Allah). Muslims or adherents of the Muslim faith, often resent the portrayal of Sharia as medieval. If a statement of law is set out their great book, the Koran, that, to them, is a full response. Muslims point to “social problems” they say are endemic to countries with other systems of law (such as tolerance of non-traditional sexual orientation, personal crime and divorce rates) and add that the invasive and deterrent features of Sharia law are merited as this arrests those "problems" and thus frees the people and society to attain their true potential, as God aspires.
As with most theocracies, Sharia law is difficult if not impossible to reconcile with the fundamental principles of democracy. One of the features of Sharia is that, in theory, it is invariable and stable. Democratic principles such as political pluralism and the constant tug towards expanding individual freedoms are incompatible with Sharia.

In Refash Party v Turkey, the European Court of Human Rights adopted these words:
“It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from values (of the Convention for the Protection of Human Rights and Fundamental Freedoms), particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts....
"In the Court’s view, a political party whose actions seem to be aimed at introducing Sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.”

REFERENCES:

• BBC News, October 27, 2008, Somali Woman Executed by Stoning, published at www.news.bbc.co.uk/2/hi/africa/7694397.stm and Nigerian Man Jailed for Idleness, October 17, 2008, published at www.news.bbc.co.uk/2/hi/africa/7677397.stm
• Duhaime, Lloyd, Legal Definition of Theocracy and Legal Definition of Jihad
• Esposito, John, Editor, The Oxford Dictionary of Islam (Oxford: Oxford University Press, 2003).
• Powell, V., The Legal Companion (London: Think Publishing, 2005), pages 126-127.
• Provins, Marie, Constructing an Islamic Institute of Civil Justice that Encourages Women’s Rights, published in Loyola Los Angeles Law School International & Comparative Law Review, Volume 27, 2006, page 515, published at www.ilr.lls.edu/issues/27/
• Re ABM 2002 Revue Juridique du Québec 1161