Syariah

Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, intangible divine law; contrary to ''fiqh'', which refers to its interpretations by Islamic scholars. Sharia, or fiqh as traditionally known, has always been used alongside customary law from the very beginning in Islamic history; has been elaborated and developed over the centuries by legal opinions issued by qualified jurists – reflecting the tendencies of different schools – and integrated and with various economic, penal and administrative laws issued by Muslim rulers; and implemented for centuries by judges in the courts until recent times, when secularism was widely adopted in Islamic societies.

Traditional theory of Islamic jurisprudence recognizes four sources for Ahkam al-sharia: the Qur'an, ''sunnah'' (or authentic ahadith), ''ijma'' (lit. consensus) (may be understood as ''ijma al-ummah'' () – a whole Islamic community consensus, or ''ijma al-aimmah'' () – a consensus by religious authorities), and ''analogical reasoning''.John L. Esposito, Natana J. DeLong-Bas (2001),
Women in Muslim family law
'', p. 2. Syracuse University Press, . Quote: "... by the ninth century, the classical theory of law fixed the sources of Islamic law at four: the ''Quran'', the ''Sunnah'' of the Prophet, ''qiyas'' (analogical reasoning), and ''ijma'' (consensus)." It distinguishes two principal branches of law, ''rituals ''and social dealings; subsections family law, relationships (commercial, political / administrative) and criminal law, in a wide range of topics assigning actions – capable of settling into different categories according to different understandings – to categories mainly as: mandatory, recommended, neutral, abhorred, and prohibited. Beyond legal norms, Sharia also enters many areas that are considered private practises today, such as belief, worshipping, ethics, clothing and lifestyle, and gives to those in command duties to intervene and regulate them.

Over time with the necessities brought by sociological changes, on the basis of interpretative studies legal schools have emerged, reflecting the preferences of particular societies and governments, as well as Islamic scholars or imams on theoretical and practical applications of laws and regulations. Legal schools of Sunni Islam — Hanafi, Maliki, Shafiʽi and Hanbali etc.— developed methodologies for deriving rulings from scriptural sources using a process known as ''ijtihad'', a concept adopted by Shiism in much later periods meaning mental effort which broke away politically from mainstream Islamic thought in an early period according to tradition. Although Sharia is presented in addition to its other aspects by the contemporary Islamist understanding, as a form of governance some researchers approach traditional sīrah narratives with skepticism, and early history of Islam, (which has been modelled and exalted by most Muslims) seeing it not as a period when Sharia was dominant, but a kind of " secular Arabic expansion" and they dated the formation of Islamic identity to a much later period.

Approaches to Sharia in the 21st century vary widely, and the role and mutability of Sharia in a changing world has become an increasingly debated topic in Islam. Beyond sectarian differences, fundamentalists advocate the complete and uncompromising implementation of "exact/pure sharia" without modifications, while modernists argue that it can/should be brought into line with human rights and other contemporary issues such as democracy, minority rights, freedom of thought, women's rights and banking by new jurisprudences. In fact, some of the practices of Sharia have been deemed incompatible with human rights, gender equality and freedom of speech and expression. In Muslim majority countries, traditional laws have been widely used with or changed by European models. Judicial procedures and legal education have been brought in line with European practice likewise. While the constitutions of most Muslim-majority states contain references to Sharia, its rules are largely retained only in family law and penalties in some. The Islamic revival of the late 20th century brought calls by Islamic movements for full implementation of Sharia, including ''hudud'' corporal punishments, such as stoning through various propaganda methods ranging from civilian activities to terrorism.

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. For example, ''sharīʿat Mūsā'' means law or religion of Moses and ''sharīʿatu-nā'' can mean "our religion" in reference to any monotheistic faith. Within Islamic discourse, ''šarīʿah'' refers to religious regulations governing the lives of Muslims. For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to Sharia. Sharia is the first of Four Doors and the lowest level on the path to God in Sufism and in branches of Islam that are influenced by Sufism, such as Ismailism and Alawism. It is necessary to reach from Sharia to Tariqa, from there to Ma'rifa and finally to haqiqa. In each of these gates, there are 10 levels that the dervish must pass through.

Jan Michiel Otto summarizes the evolutionary stages of understanding by distinguishing four meanings conveyed by the term ''Sharia'' in discourses.
* ''Divine, abstract sharia'': In this sense, Sharia is a rather abstract concept which leaves ample room for various concrete interpretations by humans.
* ''Classical sharia'': This is the body of Islamic rules, principles and cases compiled by religious scholars during the first two centuries after Muhammad, including '' Ijtihād''
* ''Historical sharia(s)'': This includes the entire body of all principles, rules, cases and interpretations developed and transmitted throughout a history of more than one thousand years across the entire Muslim world, since the closing of the gate of free interpretation up to the present.
* ''Contemporary sharia(s)'': This contains the full spectrum of principles, rules, cases and interpretations developed and applied at present. Migration, modernisation and new technologies of information and communication have decreased the dominance of the legal schools of classical sharia.

A related term ' (, 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.

Etymology

The primary meanings of the Arabic word ''šarīʿah'', derived from the root ''š-r-ʕ''. The lexicographical studies records two major areas of the word can appear without religious connotation. In texts evoking a pastoral or nomadic environment, ''šarīʿah'' and its derivatives refers to watering animals at a permanent water-hole or to the seashore. One another area of use relates to notions of stretched or lengthy. The word is cognate with the Hebrew ''saraʿ'' שָׂרַע and is likely to be the origin of the meaning "way" or "path". Some scholars describe it as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah The Way to Go",Abdal-Haqq, Irshad (2006). ''Understanding Islamic Law – From Classical to Contemporary'' (edited by Aminah Beverly McCloud). Chapter 1 ''Islamic Law – An Overview of its Origin and Elements''. AltaMira Press. p. 4. or "path to the water hole" 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.Weiss, Bernard G. (1998). ''The Spirit of Islamic Law''. Athens, Georgia: University of Georgia Press. p. 17. .

Use in religious texts

In the Quran, and its cognate occur once each, with the meaning "way" or "path". The word was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word in the 10th-century Arabic translation of the Torah by Saʿadya Gaon. A similar use of the term can be found in Christian writers. The Arabic expression ( ) is a common translation for ( in Hebrew) and ( in Greek in the New Testament om. 7: 22. In Muslim literature, designates the laws or message of a prophet or God, in contrast to , which refers to a scholar's interpretation thereof.

In older English-language law-related works in the late 19th/early 20th centuries, the word used for Sharia was ''sheri''. It, along with the French variant , was used during the time of the Ottoman Empire, and is from the Turkish borrowed from Arabic ''šarʿ'' which is from the same root as ''šarīʿah''.

Historical origins

According to the traditionalist ('' Atharī'') Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development" and the emergence of Islamic jurisprudence (''fiqh'') also goes back to the lifetime of Muhammad. In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith. These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifa, Malik ibn Anas, al-Shafi'i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools ('' madhāhib'') of Sunni jurisprudence.

Modern historians have presented alternative theories of the formation of fiqh while they have accepted the general outlines of the traditionalist account at first. In the late 19th century, an influential revisionist hypothesis was advanced by Ignác Goldziher and elaborated by Joseph Schacht in the mid-20th century. Schacht and other scholars argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs, the initial Muslim efforts to formulate legal norms
regarded the Quran and Muhammad's hadiths as just one source of law, with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources. According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications.
After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad's companions. In his view, the real architect of Islamic jurisprudence was al-Shafi'i, who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work '' al-risala'', but who was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths.

Some articles that may be considered precursors of Sharia law and rituals can be found in the pre-Islamic Arabic Religions; Hajj, salāt and zakāt could be seen in pre-Islamic Safaitic-Arabic inscriptions, and continuity can be observed in many details, especially in today's hajj and umrah rituals. The veiling order, which distinguishes between slaves and free women in Islam, also coincides with similar distinctions seen in pre-Islamic civilizations.

Qisas was a practice used as a resolution tool in inter-tribal conflicts in pre-Islamic Arab society. The basis of this resolution was that a member from the tribe to which the murderer belonged was handed over to the victim's family for execution, equivalent to the social status of the murdered person. The "condition of social equivalence" meant the execution of a member of the murderer's tribe who was equivalent to the murdered person. For example, only a slave could be killed for a slave, and a woman for a woman. In other cases, ''compensatory payment (Diya)'' could be paid to the family of the murdered. On top of this pre-Islamic understanding added a debate about whether a Muslim can be executed for a non-Muslim during the Islamic period. The main verse for implementation in Islam is Al Baqara 178: "Believers! Retaliation is ordained for you regarding the people who were killed. Free versus free, slave versus slave, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well."

Modern historians generally adopt intermediate positions regarding origins, suggesting that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified others, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the community. Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics. At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles. As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder. In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.

Traditional jurisprudence (''fiqh'')

''Fiqh'' is traditionally divided into the fields of '' uṣūl al-fiqh'' (lit. the roots of ''fiqh''), which studies the theoretical principles of jurisprudence, and ''furūʿ al-fiqh'' (lit. the branches of ''fiqh''), which is devoted to elaboration of rulings on the basis of these principles.

Principles of jurisprudence (''uṣūl al-fiqh'')

Classical Islamic jurisprudence refers how to elaborate and interpret religious sources that are considered reliable within the framework of "procedural principles" within its context such as linguistic and " rhetorical tools" to derive judgments for new situations by taking into account certain purposes and mesalih. Textual phrases usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date.

The sources of judgment in classical fiqh are roughly divided into two: Manqūlāt (Quran and hadith) and Aqliyyāt (ijma, qiyas, ijtihad and others). Some of them (Aqliyyāt) are considered to be the product of scholastic theology and Aristotelian logic. It was an important area of debate among traditional fiqh scholars how much space should be given to rational methods in creating provisions such as extracting provisions from religious texts, as well as expanding, restricting, abolishing or postponing these provisions according to new situations, considering the purpose and benefit, together with new sociologies, in the face of changing conditions.

In this context, in the Classical period, the ulema were divided into groups (among other divisions such as political divisions) regarding the place of "'Aql" vis-à-vis naql: those who rely on narration ( Atharists, Ahl al-Hadith), those who rely on reason ( Ahl al-Kalām, Mu'tazila and Ahl al-Ra'y) and those who tried to find a middle way between the two attitudes such as Abu al-Hasan al-Ash'ari in theology (syncretists). In the classical age of Islam, there were violent conflicts between rationalists (aqliyyun; al-muʿtazila, kalamiyya) and traditionalist (naqliyyun, literalists, Ahl al-Hadith) groups and sects regarding the Quran and hadith or the place of reason in understanding the Quran and hadith,Mirzaee, A. (2012). 'Decline of Mu'tazilite Thought: The Heritage of Conflict between Ahl Al-Hadith and Mu'tazilites', Journal of Seven Heavens, 14(54), pp. 7–26 as can be seen in the Mihna example. Although the rationalists initially seemed to gain the upper hand in this conflict, with the rise of literalism, the Mutazila sank into history and literalism continued to live by gaining supporters.

In this context, the formulation of the Sunni view can be summarized as follows; Human reason is a gift from God which should be exercised to its fullest capacity. However, use of reason alone is insufficient to distinguish right from wrong, and rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad. In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus ('' ijmaʿ'') and analogical reasoning (''qiyas''). It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools. This interpretive apparatus is brought together under the rubric of ''ijtihad'', which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question.

The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason ('' ʿaql'') as a source of law in place of ''qiyas'' and extension of the notion of sunnah to include traditions of the imams.

Sources for Ahkam al-Sharia

Islamic scholar Rashid Rida (1865–1935 CE) lists the four basic sources of Islamic law, agreed upon by all Sunni Muslims: "the ell-knownsources of legislation in Islam are four: the ''Qur'an'', the ''Sunnah'', the consensus of the ''ummah'' and ''ijtihad'' undertaken by competent jurists"

While traditional understanding strongly denies that Quran may have changed,( Al Hejr:9) the authenticity of hadiths could only be questioned through the chain of narration, though some western researchers suggests that primary sources may have also been evolved.

* ''Quran'': in Islam, the Quran is considered to be the most sacred source of law. According to classical mainstream jurists, the verses of the Quran that were "revealed later" in Islamic language may have restricted or abolished the earlier verses. Burton, ''Islamic Theories of Abrogation'', 1990: pp. 43–44, 56–59, 122–124 Therefore, deciding which verses of the Quran will be used, in addition to other knowledge and skills, may be the job of lawyers who know these issues in detail. Whether the Sunnah could limit the Quran remained a matter of debate. Fiqh sects are schools of understanding that try to determine the actions that people should do or avoid based on the Quran and hadiths. Hanafi sect requires that in order for something to be considered fard, it must be clearly commanded in the Qur'an "according to logical and grammatical requirements such as addressee, order and scope, etc.", expressions that do not meet this condition are placed in the "wujub" class, which expresses a lower level of necessity. Some of these fiqh results (ahkam) may also indicate exaggeration of statements, generalizations taken out of context, and imperative broadening of scope.

A small number of verses in the Quran are about general rules of governance, inheritance, marriage, crime and punishment. Although the Quran does not impose a specific legal-management system, it emphasizes custom in nearly 40 verses and commands justice. (An-Nahl; 90) The practices prescribed in the Quran are considered as reflections of contextual legal understandings, as can be clearly seen in some examples such as Qisas and diya. The following statement in the Quran is thought to be the general rule of testimony in Islamic jurisprudence, except for crime and punishment – for example, debt, shopping, etc.; O believers! When you contract a loan for a fixed period of time, commit it to writing....with justice. Call upon two of your men to witness. If two men cannot be found, then one man and two women of your choice will witness so if one of the women forgets the other may remind her.... Rules of inheritance was also mentioned in the Quran, in regards to certain family members having their share..

In a different example, in the necklace story of Aisha, called Asbab al-Nuzul for surah An-Nur :11-20 four witnesses were required for the accusation of adultery. In addition, those who made accusations that did not meet the specified conditions would be punished with 80 lashes. The jurisprudence of later periods stipulates that witnesses must be men, covering all hadd crimes and people who did not have credibility and honesty in society (slaves, non-adl; sinners, infidels) could not testify against believers. In addition, the Islamic judiciary did not require proof of the issues defined as tazir

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