Historical And Modern Theories Of Islamic Law

Origins and development of Islamic law (Sharia)

Describe about the Historical and Modern theories of Islamic law?.

Islamic law is officially called Sharia which is an Arabic word that means the “right path or the correct path (SCHACHT, 1979).” Sharia law emanates from a combination of different sources including the Muslim holy book(Qur’ran), sayings, and teachings of Prophet Muhammad( Hadith) and fatwas (the rulings and findings of Islamic scholars) (SCHACHT, 1979). Muslims believe that God (Allah) revealed his will to the prophet Muhammad who then played a role of mediation to pass the laws to humans via the Koran (Holy Islam book). Due to the belief by Muslims that Sharia originated from God, they consider it sacred and therefore must be respected by all Muslims without questioning. Many Islamic scholars attempted to give interpretations of Sharia after Muhammad had died in the seventh century (MALLAT, 2003). These interpretations were then adopted by Muslims and accepted as guidance to worship and live brotherly lives. The original Sharia law was an important symbol of Islamic religion and community at large because it guided the way of life for all museums (NASIR, 2009).

Before Islam, Arabian Peninsula was occupied by nomadic tribes who worshiped idols as their god. Each nomadic tribe had its rules that governed hospitality, marriage, and revenge and due to competition for resources in the Peninsula, these tribes constantly fought one another. People in these tribes retaliated against each other for various crimes committed against each other. Later on, Muhammad the prophet came into the Arab region and introduced a new religion (Islam) which affirmed only one God (MALLAT, 2003). This doctrine set forth required that all believers must obey God’s laws and will otherwise be punished. Koran the holy book was used as a guide book for Muslim believers setting forth the human standards but did not provide a detailed code of law to be followed. During this period, Muhammad acted as a judge interpreting the law to Muslims and providing judgments over cases involving Muslims (NASIR, 2009). After Muhammad had died in the sixth century, political and religious rulers called caliphs carried on with the duty of developing Islamic law giving their interpretations and deciding cases in Arabia. The Islamic law spread to Umayyad dynasty and the caliphs in charge of the regime appointed judges (Kadhis) to settle the case and interpret the law to the people. This law spread until the government incorporated some part of the law into the country’s constitution.

Criminal Law and Procedure under Islamic law (Sharia)

Shaffi, who was a Muslim scholar, played a significant role in shaping Sharia law by stating that Kadis (government judges) were supposed to follow a well reasoned out process while making judgments on Muslim cases (Anderson, 1959). Through this argument, many Muslim law scholars wrote law books that Kadis used to make court decisions, and that formed the basis of modern-day Sharia law. In the modern day, Sharia is legalized in many countries to avoid controversies and contradictions even though it is moderated by governments (Anderson 1959). Even though Sharia still exists in many Islamic countries, western culture has eroded most of the traditional provisions that laid the foundation of the Islamic law (Anderson, 1959).

According to the traditional Sharia, crimes that are considered more severe are the ones mentioned in the Koran because they are considered as sins against God and they must be punished as per the Sharia (NASIR, 2009). When Sharia was formed, there was some crime that Prophet Muhammad considered as criminal and was unforgivable in Islam. Adultery was highly condemned and according to the Sharia any person found doing adultery was to be stoned to death because he or she was sinning against Allah the holy one (KHALIFA, 1983). The second crime was highway robbery by a Muslim faithful was highly prohibited, and no one could survive the wrath of Sharia. Anyone convicted of highway robbery was to be crucified, executed, left foot and right hand cut off or be imprisoned according to Islamic law (KHALIFA, 1983).  Any Muslim found stealing was to be punished by having his right hand cut off completely, and if the same person committed a second theft crime, his or her left foot could be cut and later on imprisoned if found offending the law further. Slanderous people were given eighty lashes by the government askaris and issued with the stern warning never to commit the crime again (NASIR 2009). Drinking wine and any intoxication was considered an offense of the highest order among museums and any person found committing such an act of the offense was to receive eighty lashes (AWWAÌ„, 2000). 

Penalties for some crimes like murder and bodily injury were carried out by Caliph Officials (MACDONALD, 2007). In such cases, the victim or the male next of kin could retaliate by carrying out murder using a sword, or if the injury was caused to the victim, he could retaliate by inflicting the same injury to the offender if found guilty by the caliph (MACDONALD, 2007). Later on, the rule of exactitude was introduced which required that the offender receives the same amount of damage caused to the victim, and therefore the law discouraged retaliation (COULSON, 2011). Classic Sharia followed a due process where the victim of the crime or his next of kin presented a claim personally before the court, and there were no government prosecutors during these cases (KHALIFA, 1983). Persons involved in the case had a right to have personal lawyers just like in the modern society, but female witnesses were not to testify before judges except in exceptional circumstances such child birth. During the hearing of the case, if the accuser failed to produce witnesses, there was the demand that the defendant takes an oath before Allah as prophet Muhammad has stated in the Sharia (AWWAÌ„ , 2000).

Modern theories and development of Islamic law

For over years, modern theories of Islamic law have made changes to original Sharia in many ways. Currently, there are better methods of punishing Muslim law offenders distinct from the natural punishments that were given to them in the classic Sharia. Adulterous are not stoned to death as it was done in the classic Sharia, rather they are given other punishments such as paying fines or sending them to jail depending on had his decision over the case.

Women and inheritance in Islam are governed by Islamic inheritance jurisprudence also called fiqh. The law of inheritance is covered under the title Ê¿ulm al-farÄÂʾiḠmeaning “science of the ordained quota” is widely involved in the Koran the holy book that forms the basis of Sharia law (NASIR, 2009). Traditionally women were considered half people because of the domination of men up to the time of Prophet Muhammad. However, an introduction of the Koran by Prophet Muhammad acted as a sigh of relief to women because the Koran introduced new rights for women to inherit and own property reducing some of the restrictions that existed before (NASIR 2009). Women began to be treated fairly in Islam, and they were entitled to inheritance from their parents who formed the basis of the legal system about inheritance and property (MACDONALD, 2007). According to the Sharia, Allah the highest gave a detailed method of how women should inherit property in the Sunnah and Koran. There are three types of shares that women should inherit in the Muslim community; a woman can have the same number of shares in terms of inheritance as men; a woman can have a little less share than that of man. This means that a lady can only receive a minimum inheritance of half the proportion of a person. In the pre-Islamic period, there were variations in the laws of inheritance that were not so clear to the people (NASIR, 2009). The Islamic law also introduced other heirs that were non-existent in the pre-Islamic period, for instance, relatives. 

According to Schacht, women are not supposed to be inherited as per the Sharia because they are human beings, not property. In his book, he states that “this is not meant as a regular legal ordinance, but is part of the Qur’anic endeavor to improve the position of women.” (SCHACHT, 1979). Islamic law stipulates that it is the responsibility of men to take care of women by providing safety, sustaining them and protecting them together with children. Sharia states that only relatives that have legitimate blood relationship with the deceased are entitled to the deceased inheritance (SCHACHT, 1979). This law excludes adopted children and illegitimate children because they are not part of the deceased’s family. In both traditional and modern Sharia, a person who kills the dead or another man is not to inherit from the deceased. Furthermore, a Muslim cannot inherit from a disbeliever and likewise the disbeliever cannot inherit from a Muslim (COULSON, 2011).

In the modern day, the place of women in term of inheritance and dependency on their husbands for sustenance has significantly changed and even the law (COULSON, 2011). Traditionally women were not obliged to do anything apart from taking care of their families. However, in the modern theories, women have become more active and economically empowered, and this makes them share financial responsibilities with their husbands.

References

Anderson, J. (1959). Islamic law in the modern world. [New York]: New York University Press.

SCHACHT, J. (2001). The Origins of Muhammadan Jurisprudence. New York, American Council of Learned Soc.

BURTON, J. (1990). The sources of Islamic law: Islamic theories of abrogation. Edinburgh, Edinburgh Univ. Press.

COULSON, N. J. (2011). A History of Islamic Law. New Brunswick, N.J., Aldine Transaction.

AWWAÌ„, M. S. (2000). Punishment in Islamic law: a comparative study. Plainfield, Ind, American Trust Publications.

PETERS, F. E. (1982). Children of Abraham: Judaism, Christianity, Islam. Princeton, N.J., Princeton Univ. Pr.

KHALIFA, M. (1983). The sublime Qur’an and orientalism.

MACDONALD, D. B. (2007). Development of Muslim theology, jurisprudence, and constitutional theory. Clark, NJ, Lawbook Exchange.

MALLAT, C. (2003). The renewal of Islamic law: Muhammad Baqer as-Sadr, Najaf and the Shiʼi International. Cambridge [u.a.], Cambridge University Press.

MALLAT, C. (1993). Islamic family law: [proceedings of a conference convened by the Centre of Islamic and Middle East law …, University of London, in May 1989]. London [u.a.], Graham & Trotman.

NASIR, J. J. (2009). The status of women under Islamic law and modern Islamic legislation. Leiden, Brill.

SCHACHT, J. (1979). An introduction to Islamic law.