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Sharia (Arabic شريعة, lit. "the way") is Islamic law covering conduct in all aspects of life, though nowadays it is primarily applied in commercial and personal relationships. There are multiple schools of sharia jurisprudence, each of course claiming to be the correct understanding. Sharia is not codified, and is best thought instead as a way to enforce laws based on the teachings of the Qur'an and hadiths. Sharia is commonly and incorrectly labeled "sharia law" when it should simply be written as sharia. It is roughly analogous to halakha in Judaism.
Many Muslims consider it a good idea for moral guidance. But in some countries under sharia, Mutaween (religious police) enforce the practice of the law.
When assessing sharia, however, it is important to remember that it is not a single thing. Every country that implements some form of "sharia" does so differently, in terms of the strictness of the laws, the specifics of the laws, and whether or not the laws apply to non-Muslims.
Unlike secular laws, sharia is based on religious teachings, and is seen by traditionalists as a reflection of God’s will. The precepts of sharia reach beyond criminal law and provide conventions for many other aspects of life, such as diet, clothing and regulated prayer. Women are expected to be obedient, husbands may beat their wives even for suspected but unproved arrogance, but those who disagree with this can argue that "the best example was the Messenger himself [Mohammed] never beating a woman." On top of that, there's a strong case to be made that "sharia" can and should be considered primarily a guide to personal morality, with its prescriptions for social laws being subject to override by civil authorities if it's in the public interest — and there's also a decent case that it's not. In other words, the sharia is a mess — nobody's really sure what it's supposed to be (some people say they're sure, but we call these people extremists when we're being polite) or how it's supposed to be applied. It makes the Jewish arguments over the Talmud and Halakha look small by comparison.
There are at least five main interpretations of sharia. They are largely based on common precepts, but are by no means identical:
- Hanafi (Sunni. Generally predominant in Central Asia.)
- Hanbali (Sunni. Generally predominant in Saudi Arabia.)
- Jaafari (Shia. Generally predominant in Iran.)
- Maliki (Sunni. Generally predominant in Northern Africa.)
- Shafi‘i (Sunni. Generally predominant in Indonesia, Brunei, Sudan, Ethiopia and Somalia.)
Other Muslim scholars interpret the Qu'ran in very much more moderate ways than the extremists.
The Hanbali school is the forerunner of the modern Wahhabi-Salafist school dominant in the Islamic State. It views the Qur'an and Hadith as true and correct and not open to interpretation. Logic and reasoning are believed to open the way to human desire, distortion, and deviancy. Human desire will compromise human interests with religious truth.
Quentin Wotorowitz describes how Salafis arrive at legal judgments that affect all aspects of contemporary society, culture, and governance:
Salafis like to approach the process of applying religious principles to contemporary issues and problems as though it is a scientific enterprise governed by the hard laws of nature (in this case divinity). The Salafi creed outlines the rules for generating religious opinions to ensure that conclusions are methodologically sound and based on solid evidence from the Qur’an, Sunna, and consensus of the companions. This creed, Salafis assume, eliminates (or at least limits) the potential of human bias and error by structuring the process of deduction and the criteria for acceptable findings according to the Prophetic model. In a way, it is a positivistic approach that eschews normative ambiguity, relativism, and the possibility of multiple truths. If one follows the method and procedures of the Salafi creed, the expectation is that religious rulings represent the unadulterated and singular truth of God’s will because they rely on the original and pure sources of Islam. In this endeavor, Salafis frequently exhibit the arrogance of scientific certitude. Because there is only one straight path and saved sect, the Salafi creed and method are seen as inexorably producing the "correct" Islamic understanding. Conclusions are represented as the teleology of a process rooted solely in the sources of Islam. It is as though Muslims posit questions to a computer run by divine software. Ipso facto, all alternative conclusions are misguidance and reflect the interjection of human reasoning or a lack of religious training and knowledge, the glitches of inferior programming. In these circumstances, well-trained scholars are truly doing God’s work: they merely take contemporary questions and follow methodological rules set out by God.
Cairo Declaration on Human Rights
In 1990, Muslim majority nations criticized the United Nations' Universal Declaration of Human Rights for being a secularized version of Judeo-Christian principles. They released a "sharia-compatible" version of the declaration called the Cairo Declaration on Human Rights. It's rather ambiguous on a number of rights. Article 1 states:
“”All human beings form one family whose members are united by their subordination to Allah and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the basis of race, colour, language, belief, sex, religion, political affiliation, social status or other considerations. The true religion is the guarantee for enhancing such dignity along the path to human integrity.
While Article 10 states:
“”Islam is the religion of true unspoiled nature. It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism.
The International Humanist and Ethical Union has criticized the Declaration for limiting freedom of religion and freedom of speech. Blasphemy, for example, is still punishable by death in some areas in the Middle East. Similarly, apostasy is punishable by death in some countries, including Iran and Saudi Arabia. The most infamous incident relating to this is probably Ayatollah Khomeini's call for the execution of Salman Rushdie.
The implementation of sharia varies across the globe. Saudi Arabia bases its legal system heavily on its interpretations of sharia, and it has given sharia courts complete authority over jurisprudence. However, this is an uncommon feature, and many Muslim states use dual systems of secular and religious courts, or only implement the sections of sharia that address financial and marital issues. Iran's government adheres to the Shi'a school of Islam, and they view sharia as a Sunni phenomenon. In practice, their laws are generally similar, although, in some areas, human rights are actually better in Iran when compared to Saudi Arabia. For example, women are generally required to wear niqabs or burqas and only a certain brand of Islam is allowed in Saudi Arabia, whereas in Iran women must wear a headscarf (that is, the face may be uncovered, unlike in Saudi Arabia in general) and most religious minorities are semi-protected.
Corporal and capital punishments are common under the stricter interpretations of sharia, and much of the judgments are incomprehensible to Westerners. In November 2007 a multiple rape victim in Saudi Arabia was sentenced to 200 lashes for initially being alone with a man who was not a relative. The victim's lawyer was suspended from the case as a result of the appeal and his license has been revoked.
Saudi interpretation of sharia has been strongly influenced by the dominant Wahhabist movement, so some claim such cases cannot be seen as representative of Islam as such. Hence the significant outcry from "mainstream" Muslims about it, almost as loud as Christian denunciations of fundamentalists. Oh, wait.
On 1 May 2014, Brunei became the first Southeast Asian state to introduce strict sharia, which applies to both Muslims and non-Muslims.
Creeping sharia in America
"Creeping sharia" is a fairly recent wingnut conspiracy theory peddled by the likes of Pamela Geller that asserts Muslims are implementing sharia in American court systems. Alternatively, it's a reaction to what has happened in other nations, see below.
This fear has been stoked by comments from politicians such as Sharron Angle and Newt Gingrich and manifested in the Park51 and Halal soup incidents as well as legislation passed in Oklahoma banning the use of sharia in state courts and efforts to prevent the opening of a mosque in Murfreesboro, Tennessee. Frank Gaffney has also touted "research" that supposedly "proves" the Muslims are taking over the judicial system. Ironically, many of the people raising the alarm about sharia share the homophobic, misogynist, religiously intolerant attitudes of Sharia.
Banning the use of sharia in American courts is a bad idea for several reasons. First, it may violate the separation of powers doctrine, under which courts govern their own proceedings and decide what can or cannot be cited as law. On a more practical level, Muslims often draw up wills, guardianships, and similar documents that refer to Islamic tithes, burial instructions, and other concepts that fall under the rubric of "sharia law". Courts will be presented with these documents and need to interpret them to carry out their makers' intentions.
By counterpoint, and with some irony, the FBI confiscated by subpoena a document from the Muslim Brotherhood, a Sunni Islamist organization, which proposed such a plan for taking over the United States and instituting an Islamic state. The document called for a "grand Jihad in eliminating and destroying the Western Civilization from within and sabotaging its miserable house by their [westerners'] hands and the hands of the believers." However, this, surprisingly, doesn't mean that the Supreme Court has been making rulings by the Qur'an.
Sharia in Britain
In Britain Sharia is implemented by Muslim Arbitration Tribunals, which were introduced in 2007, and sharia councils, around since 1982. These courts deal exclusively in civil law, and only in cases where both parties consent to the use of sharia; however, critics point to incidents in which those who do not consent to the use of sharia are illegally coerced into cooperating: by threat, intimidation, or the ostracization of being a "kafir". In 2014, the Law Society issued a practice note which instructed lawyers on how to prepare Sharia-compliant wills. This note was strongly opposed by the Lawyers' Secular Society and was later withdrawn. In January 2013 there were incidents described in the media as "Muslim Patrols" where some vigilantes arbitrarily imposed sharia, including on non-Muslims, by confronting gays, women in miniskirts and alcohol drinkers. These incidents are not recognized by the UK government as anything other than the acts of criminal gangs. Nonetheless, Islamophobes frequently cite these as somehow connected to the legal arbitration courts.
During recent years sharia councils have been used increasingly in the UK and there are claims some of them act unfairly to women including legitimizing forced marriages and issuing discriminatory divorces to women. There are claims that some women were victims of inequitable decisions. Then-Home Secretary, Theresa May, claimed there is only one rule of law in the UK, stating that there would be a review of whether sharia discriminates against women, and also "whether, and to what extent, the application of Sharia law may be incompatible with the law in England and Wales". There are serious concerns about the inclusion of theologians and fundamentalists in the review and there are grave doubts over its impartiality.
“”We had hoped and understood that the inquiry into these alarming developments – that are conveniently ignored by some civil rights campaigners who decry state but not fundamentalist abuse of power – would be truly independent. However, we are now dismayed to learn that far from examining the key connections between religious fundamentalism and women's rights, the narrow remit of the inquiry will render it a whitewash; and instead of human rights experts and campaigners, it is to be chaired and advised by theologians. The danger is that the inquiry is setting out with a pre-determined objective that will approve the expansion of the role of Sharia and religious arbitration forums and their jurisdiction over family matters in minority communities, albeit with a little tweaking to make it more palatable to the state.
|—Open letter to Theresa May|
Sharia in Canada
In 2005, a Canadian committee headed by former Attorney General Marion Boyd recommended allowing Muslims in the province of Ontario to establish sharia-based civil law tribunals (similar to religiously-based tribunals already in use by the province's Catholics and Jews). After a strong public outcry, Liberal Premier Dalton McGuinty vetoed the plan, and moved to prohibit religious tribunals of any kind. And who says multicultural countries are full of pantywaists?
- Sharia law: A brief introduction, Religious Tolerance
- Gontowska, Luiza Maria, "Human Rights Violations Under the Sharia'a : A Comparative Study of the Kingdom of Saudi Arabia and the Islamic Republic of Iran" (2005). Pace University Honors College Theses. Paper 13. Full text
- Muslim Arbitration Tribunal
- Islamic Sharia Council
- An Islamic happy marriage according to the Qur'an
- The BBC quoting Tarik Ramadan of Oxford University How religions change their mind
- Paper supporting the former proposition.
- Viewpoint: What do radical Islamists actually believe in?
- Anatomy of the Salafi Movement by Quintan Wiktorowicz (2006) Studies in Conflict & Terrorism Volume 29, Issue 3, Pages 207-239.
- Cairo Declaration of Human Rights, Human Rights Library, University of Minnesota
- IHEU statement on the declaration
- Religious Conversion and Sharia Law, Council on Foreign Relations
- Victim sentenced to be whipped - The Guardian
- Sharia Law Amendment, Ballotpedia
- Welcome to the Shariah Conspiracy Theory Industry, Religion Dispatches
- The Man Behind the Anti-Shariah Movement, New York Times
- The Fraudulent Sharia in American Courts "Study", Ed Brayton
- See, e.g., State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 400, 157 N.E.2d 475, 478 (1959)
- Quoting the Bible: The Use of Religious References in Judicial Decision-Making by Sanja Zgonjanin (2005) New York City Law Review, Vol. 9, No. 31, Pages 31-91.
- page 11
-  Page 16
- "LSS condemns Law Society’s practice note on “Sharia compliant” wills". March 23, 2014. https://lawyerssecularsociety.wordpress.com/2014/03/23/lss-condemns-law-societys-practice-note-on-sharia-compliant-wills/.
- http://www.guardian.co.uk/uk/2013/jan/24/muslim-patrol-gang-arrests-homophobic-video Muslim patrol' gang: police arrest three more after homophobic video
- Sharia law review to focus on fairness to UK women — Theresa May
- Sharia, security and the church: dangers of the British Home Office Inquiry
- A fundamentalist agenda that seeks to communalise law and social policy
- Ontario Premier Rejects Use of Shariah Law