Top Five things to know about Sharia (Muslim Canon Law)

Asma Afsaruddin | (The Conversation) | – –

Editor’s note: A conservative grassroots organization, ACT for America, organized a “March against Sharia” in at least 20 cities across the United States on Saturday, June 10. Professor of Islamic Studies at Indiana University Asma Afsaruddin explains Sharia and dispels a number of myths about it.

What is Sharia law?

Sharia in Arabic means “the way,” and does not refer to a body of law. Sharia is more accurately understood as referring to wide-ranging moral and broad ethical principles drawn from the Quran and the practices and sayings (hadith) of Prophet Muhammad. These broad principles are interpreted by jurists to come up with specific legal rulings and moral prescriptions. The body of legal rulings that emerges from the interpretation of Sharia law is commonly referred to as Islamic law, or as “fiqh” in Arabic. It is the result of human intellectual activity and is therefore, by definition, fallible and changeable.

Is it true that Sharia does prescribe harsh punishment for acts such as adultery?

I want to caution against reducing Sharia to just one or two legal principles and picking out certain punishments as being characteristic of Sharia. It is much more fruitful to start with Sharia’s fundamental objectives.

Corniche_beirut_5 Street scene, Beirut, h/t Wikimedia

Sharia provides guidance on how to live an ethical life. It lays down guidelines on how to pray and how to treat one’s family members, neighbors and those who are in need. It requires Muslims to be just and fair in their dealings with everyone, to refrain from lying and gossip, etc., and always to promote what is good and prevent what is wrong.

Muslim scholars reflecting on the larger objectives of Sharia have said that laws derived from it must always protect the following: life, intellect, family, property and the honor of human beings.
These five objectives create what we may consider to be a premodern Islamic Bill of Rights, providing protection for civil liberties.

On the specific question of adultery, Islam, like some other religions, takes a strong position, since it seeks to promote the sanctity and stability of the family. Those found guilty of adultery are supposed to be punished by lashing (based on the Quran) or stoning (based on hadith).

But there is a high bar of evidence that must be met before this punishment can be meted out: Four witnesses must observe the actual act of penetration. Even in this age of voyeurism, it would be next to impossible to meet this criterion. The prescribed punishment for adultery was therefore hardly ever carried out in the premodern world.

This situation is in contrast to the brutal stonings that have been carried out in the modern, post-colonial period in a handful of Muslim majority countries, like Nigeria and Pakistan. From my perspective, the above-mentioned rules of evidence were not given due regard. In many such cases, modern jurists who may have very little training in classical Islamic law and do not understand the principles of Sharia are being asked to implement “Islamic punishments” by politicians who want to appear Islamic. Stoning appears to be a dramatic way of asserting a shallow “Islamic” identity, often in conscious opposition to the West. There are other jurists who have criticized these sensationalist examples of stoning as being in violation of fundamental moral and legal principles within Islam.

Is Sharia anti-women?

Most definitely not. The Quran recognizes the absolute equality of men and women as human beings and proclaims that they are each other’s partners in promoting the common good.

Sharia provides women with certain rights that were practically unheard of in the premodern world. It requires that both men and women have equal access to knowledge; it requires a woman’s consent before marriage; and it allows her the right to initiate divorce under certain conditions. Muslim jurists allowed abortion in the first trimester of pregnancy, especially if the mother’s health was in jeopardy.

Above all, Sharia allows a woman to inherit property from her male relatives and to keep this property for herself, even after marriage – her husband cannot lay any claim to it. In contrast, European Christian women were not allowed to hold on to their property after marriage until the 19th century. Muslim feminists campaigning for equal legal rights in Muslim majority societies today draw their arguments and strength from Sharia.

Honor killings and female genital mutilation, that are often described by the media as Islamic, are in fact non-Islamic tribal practices that have no basis in Sharia. Female genital mutilation is practiced by non-Muslims as well.

At least nine states in America have passed “foreign law” statutes banning Sharia in American courts. What was behind the fear? Is Sharia law being implemented anywhere in America?

As I see it, fear and hatred of Islam and Muslims or Islamophobia is propelling an anti-Sharia campaign. The U.S. Constitution remains the law of the land. Sharia does not apply to non-Muslims anyway so the hysteria that is now being incited by certain groups, I believe, is based on utter ignorance and bigotry. This bigotry underlying the anti-Sharia campaign was recognized by the American Bar Association when it passed a resolution in 2011 opposing various anti-Sharia measures. As the resolution stated:

“Initiatives that target an entire religion or stigmatize an entire religious community, such as those explicitly aimed at ‘Sharia law,’ are inconsistent with some of the core principles and ideals of American jurisprudence.”

To set the record straight, one should note that anti-Sharia legislation has been defeated in Florida, Missouri and Oklahoma and the fight continues in states such as Michigan.

Is Sharia the law of the land in Muslim countries? How does the implementation differ?

Traditionally, Muslim countries have belonged to one of four major schools of law that developed in the 10th century. These legal schools interpreted Sharia somewhat differently on various matters but they were understood to be equally orthodox and valid. Today, Islamic legal rulings are applied primarily in the area of personal and family law, which governs issues of marriage, divorce, and inheritance, among others.

The ConversationCivil law in most Muslim majority countries is based upon modern Western legal systems, a legacy of the period of European colonization of much of the Islamic world starting in the 19th century. Thus, Egypt borrowed the French civil code, while Turkey adopted Swiss civil law and Indonesia Dutch. The notable exceptions are Saudi Arabia and Iran, which apply Islamic law in the civil and public sphere as well. In the Muslim-majority countries of Pakistan and Afghanistan, tribal law known as jirga law sometimes takes precedence over Islamic law.

Asma Afsaruddin, Professor of Islamic Studies and former Chairperson, Department of Near Eastern Languages and Cultures, Indiana University

This article was originally published on The Conversation. Read the original article.

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5 Responses

  1. Edith Garwood

    This is fantastic. She does a very good job in explaining ‘sharia law’ and answering the strongest arguments used against ‘it’.

  2. The Muslims themselves have dug a lot of holes over the past 1400+ years with regards to Shariah.

    While the article is good overall, the author makes two errors:

    1. While she points out that the punishment for adultery is not stoning in the Quran, she nevertheless seems to support it in light of Hadith.

    This is a huge hole that the Muslim jurists have created and have sunk the Muslims in it.

    It makes no sense that, since the Quran is the primary source of Islam and, therefore, draws a circle (boundaries), that one should accept anything that goes outside that circle.

    The maximum punishment for adultery is quite clear in the Quran, and it is not stoning.

    The Surah that gives that maximum penalty starts off by saying, “This is a sura We have sent down and made obligatory: We have sent down clear revelations in it, so that you may take heed.”

    Therefore, stoning is utterly un-Islamic and must not be part of the Shariah.

    But the Muslims have generally not followed the Quran when it comes to Shariah on many issues, and their Islam is Hadith-based, not Quran-based.

    And this has caused many issues.

    2. The author makes the same error that many Muslims make when it comes to laws pertaining to women: she boasts about how the original Islam gave them rights that were not given to them before, and how the West took centuries to catch up.

    Well, so what?

    While the Quran and the Prophet did a lot for women, they merely set the foundation for further progress, which the Muslims did not completely do, as they got stuck in the 7th century.

    For instance, in today’s societies, a lot of women earn money and equally (or even more) contribute to the running of the household.

    So, why should these women be given less in inheritance than men?

    In many cases, it is the women who look after their aging parents, and it makes no sense that they should be given less in inheritance.

    Then there’s the case of divorce.

    While the man has the right to divorce his wife, the wife does not enjoy that right.

    She has to go to court to “get” a divorce and the husband has to agree.

    Why not give the women the right to “give” divorce?

    There are many other issues pertaining to women, which the Muslim scholars have rigidly stuck to old Shariah rules in the name of “staying with tradition,” and have not realized that the Prophet was simply laying the groundwork for giving equal rights to women.

    But the traditional Muslims (especially the Tablighi Jamaat-types and those who live in Muslim majority countries) have failed to progress fully when it comes to women’s issues as well as issues pertaining to religious minorities.

    For instance, why do some Muslim countries have Blasphemy laws?

    What is needed is a fresh approach in light of today’s human situation.

    But the traditionalists, who happen to be quite literalists, will never do that.

    There are many mosques in which a woman is not even allowed to speak to the Muslims who have gathered at the mosque.

    Sometimes non-Muslim political candidates come to mosques to speak.

    While the male candidates are given the same spot where the imam speaks, to speak to the audience, the female candidates are not given that spot.

    Why?

    Then, there is the issue of zakat.

    The original purpose of zakat was to help with the set up of a social welfare system.

    In many countries today, their citizens are heavily taxed, and their taxes pay for a whole lot of things.

    So, why can’t the Muslim scholars rule that these heavy taxes, which do help the needy, are a good replacement for zakat, while encouraging the Muslims to be charitable with their take-home incomes?

    Sorry, but there is a need for HUGE reformation and modernization when it comes to Shariah, which the Muslims are NOT doing.

    And I am saying this as a Muslim, albeit a Sufi Muslim.

  3. I daresay Europeans’ biggest problems with Sharia aren’t with Sharia at all. Things like veiling and female genital mutilation were part of ‘those’ societies long before Islam. Jealous, paternalistic leaders fused them onto the religion more or less willy-nilly, and over the centuries, the preexisting customs became effectively canonical.

    It particularly bothers me that holdovers of ancient jahiliyya are so tightly and widely embraced.

  4. The article was quite informative; the comments that followed equally so. As an agnostic and secular Buddhist, this reinforces my belief that the American “Founding Fathers” had the right idea in separating government and religion. What is ironic about many conservatives in America today is that they rail against “Sharia Law”, while insisting that the principles and teachings found in the Old and New Testaments be incorporated into American law and legislation.

  5. Great comments all round. Sufi Muslim raises good points for example, but for me Pat Duran hits the nail on the head. The Islamic world will have to embrace its version of Mosque/State separation, but I hear even from very cosmopolitan Muslim friends that “it is impossible to separate the two”. I disagree with this.

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