Sharia

Sharia (ə/, Arabic: شريعة[ʃaˈriːʕah]), Islamic law or sharia law is a religious law forming part of the Islamic tradition.[1] It is derived from the religious precepts of Islam, particularly the Quran and the hadith. In Arabic, the term sharīʿah refers to God's immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations.[2][3][4] The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists.[5][1]

Traditional theory of Islamic jurisprudence recognizes four sources of sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning),[note 1] and ijma (juridical consensus).[7] Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali and Jafari—developed methodologies for deriving sharia rulings from scriptural sources using a process known as ijtihad.[2][3] Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics.[2][4] Its rulings are concerned with ethical standards as much as with legal norms,[8][9] assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited.[2][3][4] Thus, some areas of sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God’s will.[3]

Classical jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in sharia courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs.[2][4] Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by sharia but not bound by its rules.[10][4] Non-Muslim (dhimmi) communities had legal autonomy to adjudicate their internal affairs.[3] Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies,[11] and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers.[12] The Ottoman civil code of 1869–1876 was the first partial attempt to codify sharia.[13]

In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models.[3][14] Judicial procedures and legal education were likewise brought in line with European practice.[3] While the constitutions of most Muslim-majority states contain references to sharia, its classical rules were largely retained only in personal status (family) laws.[3] Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence.[3][13] The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia, including hudud corporal punishments, such as stoning.[3][13] In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of sharia advocated by progressive reformers.[3][13][15] Some Muslim-minority countries recognize the use of sharia-based family laws for their Muslim populations.[16][17] Sharia also continues to influence other aspects of private and public life.

The role of sharia has become a contested topic around the world.[3] Introduction of sharia-based laws sparked intercommunal violence in Nigeria[18][19] and may have contributed to the breakup of Sudan.[3] Some jurisdictions in North America have passed bans on use of sharia, framed as restrictions on religious or foreign laws.[20] There are ongoing debates as to whether sharia is compatible with democracy, human rights, freedom of thought, women's rights, LGBT rights, and banking.[21][22][23]

Etymology and usage

Contemporary usage

The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality.[24] For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith.[24] Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims.[24] For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to sharia.[3]

Jan Michiel Otto distinguishes four senses conveyed by the term sharia in religious, legal and political discourse:[25]

  • Divine, abstract sharia: God's plan for mankind and the norms of behavior which should guide the Islamic community. Muslims of different perspectives agree in their respect for the abstract notion of sharia, but they differ in how they understand the practical implications of the term.
  • Classical sharia: the body of rules and principles elaborated by Islamic jurists during the first centuries of Islam.
  • Historical sharia(s): the body of rules and interpretations developed throughout Islamic history, ranging from personal beliefs to state legislation and varying across an ideological spectrum. Classical sharia has often served as a point of reference for these variants, but they have also reflected the influences of their time and place.
  • Contemporary sharia(s): the full spectrum of rules and interpretations that are developed and practiced at present.

A related term al-qānūn al-islāmī (القانون الإسلامي, Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.[26]

Etymology

The primary range of meanings of the Arabic word šarīʿah, derived from the root š-r-ʕ, is related to religion and religious law.[24] The lexicographical tradition records two major areas of use where the word šarīʿah can appear without religious connotation.[27] In texts evoking a pastoral or nomadic environment, the word, and its derivatives refer to watering animals at a permanent water-hole or to the seashore, with special reference to animals who come there.[27] Another area of use relates to notions of stretched or lengthy.[27] This range of meanings is cognate with the Hebrew saraʿ and is likely to be the origin of the meaning "way" or "path".[27] Both these areas have been claimed to have given rise to aspects of the religious meaning.[27]

Some scholars describe the word šarīʿah as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah ["The Way to Go"]),[28] or "path to the water hole"[29][30] and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.[30]

Use in religious texts

In the Quran, šarīʿah and its cognate širʿah occur once each, with the meaning "way" or "path".[24] The word šarīʿah was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word torah in the 10th-century Arabic translation of the Torah by Saʿadya Gaon.[24] A similar use of the term can be found in Christian writers.[24] The Arabic expression Sharīʿat Allāh (شريعة الله "God’s Law") is a common translation for תורת אלוהים (‘God’s Law’ in Hebrew) and νόμος τοῦ θεοῦ (‘God’s Law’ in Greek in the New Testament [Rom. 7: 22]).[31] In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh, which refers to a scholar's interpretation thereof.[32]

In older English-language law-related works in the late 19th/early 20th centuries, the word used for sharia was sheri.[33] It, along with the French variant chéri, was used during the time of the Ottoman Empire, and is from the Turkish şer’(i).[34]