Islamic_Law

Islamic law or Sharia (the right path) is the name given to Islamic commandments which are applicable to both spiritual and temporal aspects of life. The main source of Sharia is the Quran (the holy book of Muslims accepted by divine revelation) and the Sunna (traditions, sayings and tacit approvals of the prophet Mohammad). These revealed textual sources like the Christian version of principles of natural law- restrict the scope and extent of man’s right to make law. The two sources of Islamic law are supplemented by two secondary sources consensus and human reasoning. [1]Islamic law is an objective phenomenon which exists outside the thinking and the reasoning of human beings. Islamic law is not open to amendment, reform or repeal. This means human beings cannot change the law because their attitudes or personal or communal needs have changed. In the English common law, American law and other types of law which is man made law the legislation changes because people change their attitudes, cultural approach, their ideas, their morals and values. In Islamic law there is a set of fixed and ultimate values which are distinct and independent from preferences and values of people. It is the Islamic nation known as umma, which has to follow the rules of Islamic law as opposed to attempting to bring the law in line with people’s attitude or changing the law with a view to suit the desires and the wishes of the subjects of law. [2]One of the institutions developed by classical Islamic jurist that influenced civil law was the Hawala. This was an early informal value transfer system which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself is influenced the development of the aval in French civil law and the avallo in Italian law. The European Cornmenda limited partnership (Islamic Quirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law. Under Islamic law International law consists of a common body of laws, norms and principles which can be applied in the affairs of the world community. The basic principles of Islamic law can be divided into a few parts: The first part is known as the invitation of enlightenment dauwa. This means inviting non-Muslims to embrace Islam. This method was used by the prophet of Islam who sent ambassadors to various kingdoms of the world inviting them to embrace Islam. The second principle of supremacy of Islam (atila) which means that Islam should prevail overall religions and systems. The basic foundation of this doctrine is the doctrine of Nafy-isobil which means the negation of authority of non-believers over Muslims as indicated in the Quran and the tradition of atila stated by the prophet. Thirdly the doctrine of jihad(struggle against non Muslims) which means if the invitation to Islam by peaceful means did not result in non-believers accepting Islam. As a last resort it must be made by an armed struggle. Lastly attracting sympathy known as (talif qulub) by appropriate means including negotiation, diplomacy, and exchange of presents. In international law the relations of the Islamic state with the external world are determined by four main concepts:[3] Dar al Islam, Dar al ahd, dar al harb and Jihad. Dar al Islam (Islamic State) refers to territories over which Muslims have control. Within these territories all Muslims are secure and free. Muslims from any part of the world irrespective of nationality and race are free to reside. Dar al Islam provides automatic citizenship to all Muslims of the world and unrestricted freedom of movement for individual Muslims. The second Dar al Harb refers to non-Muslim territories which manifest hostility towards Muslims, their freedom and security. Such territories are under the control of the apostates and their residents have no protection under Islamic law. Thirdly Dar-al –ahol was a non Muslim territory which was in treaty agreement with the Islamic state. Lastly the doctrine of Jihad, (struggle against non-Muslims or otherwise known as the holy war) represents resort fighting by the Islamic state in defense of a person of territory. The citizens of the Islamic community known as the Umma is the universal Muslim community or commonwealth of all Muslim people without any geographical or political boundaries. The Muslim community should be organized in reference to religious values and spiritual principles. The role of the Islamic state is to establish a political, economic and social order based on religious and moral principles. In Islamic law human rights is defined as the basic, fundamental or natural rights which cannot be taken away from individuals by any legislature or any act of government. Islamic law does acknowledge human rights and the right to life; say anyone who kills one person acts in such a fashion as if he is killing the entire community. Islamic law is assumed by its very nature to provide for personal growth, the right to development and for the right to live. These philosophies are basically of a moral and religious nature with no legal sanction or judicial enforcement. Moral and religious recommendations have not been incorporated into the Islamic legal and judicial system. The principles of the Islamic economic and social rights support the human rights theories. The basic principles of Islamic economics and social rights are incorporated in the constitution of 1979.[4] It states” in order that the economic independence of society may be secured poverty and deprivation uprooted and the needs of man in his process of growth and advancement satisfied while at the same time preserving his liberty, the economy of the Islamic republic of Iran is based on the following”: 1. the provision of basic necessities to all citizens: housing, food, clothing, healthcare, Medicare, education and the necessary facilities for the establishment of a family 2. Assuring conditions and possibilities of employment for everyone with a view of attaining full employment 3. the drawing up the economic plan for the country in such a manner that the form content and hours of work of every individual will leave him, in addition to his labor sufficient strength and opportunity to engage in intellectual, political and social development and active participation in the leadership of the country and the improvement of his skills and sense of initiative 4. Respect for the right to choose freely ones job: refraining from compelling anyone to engage in a particular job, and or preventing the exploitation of another labor. 5. forbidding the infliction of harm upon others, monopoly, hoarding, usury and over evil and forbidden practices 6. the prohibition of extravagance and wastefulness in all matters related to the economy, including consumption, investing, production and distribution of services 7. the utilization of science and technology and the training of skilled individuals in accordance with the need for the sake of the development and progress of the country’s economy 8. Prevention of foreign economic domination over the country’s economy 9. Emphasis on the increase agricultural, livestock and industrial production in order to satisfy public needs and to make the country self-sufficient and independent. Once a person has secured meaningful economic empowerment they are seeking ways to save and invest their finances. [5]The bank accepts two types of deposits: one is called Qard al-hasanah deposits and the other is a term investment deposit. Qard al hasanah is a binding contract whereby one of the parties is called muqrid (lender) transfers certain amount of his possession to the other party muqtarid (borrower) and the borrower undertakes to pay back the same or if it’s not possible, its equivalent cash value to the lender. This is the definition accepted by all schools of Islamic law and given in article 648 of the Iranian civil code 1927-1931. Qard deposits are designed to create the necessary facilities for the individual and the collective needs of the Muslim community. It aims to mobilize the surplus funds and utilize them for creating opportunities for gainful employment and investing. Term investment deposits are offered to those depositors who wish to gain monetary reward from their deposits in addition to the safekeeping which a guaranteed bank deposit offers. They are divided into two parts: short term and long term. The minimum amount required for short-term deposits are 2000 rials and for long term deposits are 50,000 rials. Term deposits in contrast with qard depositors cannot take their deposits out of the bank on demand and the repayment of their principal deposit is not guaranteed by the bank. According to the law, the banks utilize the term investment deposits by proxy on behalf of the depositors in interest free banking operating and for granting of facilities. Islamic corporation law does not restrict trade and investment. It regulates a pattern, substance of all investment and trading transactions, investments and economic activities which are not inherently harmful to the general welfare of the people and acceptable to Islam. All business arrangements which are not expressly contrary to the Islamic legal principles are admissible. Islamic law makes certain provisions for women in society. They are generally considered to be second class citizens and do not have the rights which men have under Islamic law. In several Muslim countries there have been a number of reforms in various aspects of domestic relations in order to change or modify the traditional Islamic law governing domestic relations.[6] In countries such as Tunisia and South Yemen, legislation has been introduced to limit taking more than one wife. Freedom of speech or freedom of expression is expressed in the traditional texts of Islam and as a specific concept within the shariah and is known as [7]Hurry at al-ray which translates into freedom of opinion. In order to understand the freedom of expression or opinion it is necessary to explain the various categories of Ray. Ray is classified into three categories: praiseworthy, blameworthy of doubtful. Praiseworthy opinions elaborate on the Quran. According to Islamic law a person may express an opinion, arbitrary or otherwise and will be free to advance that opinion so long as he does not violate the laws concerning blasphemy, sedition and so on. It is necessary to understand that violations of these laws may be punishable by death. This will only be the case in states being governed by the Shariah. A prime example of this would be Salmon Rusdie. Rusdie an Anglo-Indian novelist who published a book called the Satanic Verses was condemned to death by the Iranian spiritual leader Ayatollah Khomeini in 1989. Rusdie insulted the Islamic religion and a bounty was put on his head and the publishers of the book. One publisher was nearly killed by an assassin but Rusdie remains in hiding still writing books but avoiding public forums. Under Islamic law peace and justice is achieved by submission to the desires of the will of god. The Arabic word Salaam (peace) has the same root as the word Islam. By submitting to the will of Allah you have found peace within yourself and you offer peace to others. Non-Muslims participating in Islamic societies must conform to the traditions and customs which an Islamic person must follow. Not to do this would be an insult to the religion, the community and disobeying the laws of society. The Quaran instructs Muslims to treat non Muslims with courtesy in a spirit of kindness and generosity. Muslims must provide clothing to protect them and cover them with soft speech. This must be done with affection and mercy not by intimidation or degradation. Non- Muslims may be bothersome but out of the kindness and generosity of the individual they must be tolerated and accepted not out of fear and not for financial reasons. Islamic law has made a few adjustments and changes since history has begun. Certain aspects of women’s rights have been under reform as well as the laws regarding domestic relations. An example of this is temporary marriage being made illegal in the country of Iran which is primarily a shi country. Islamic law does not recognize adoption as a legal institution. If you are Muslim person thinking of adoption it will not be valid. There have been a few issues which have come to the attention of the public by other nations and various media outlets. The topic of capital punishment is one of the largest issues being tackled by today’s global political scene. [8]Morocco is an example of how a deeply religious country attempts to make strides in human rights while honoring its religious teachings. Morocco retains the death penalty for ordinary and military crimes. The death penalty has not been carried out since 1993. Article 16 of the Moroccan penal code allows capital punishment for murder, torture, armed robbery, arson, treason, desertion or an attempt on a king’s life. The last execution was carried out in 1993 on the police commissioner head of general intelligence, Mohammed Tabet. He was executed for using his position to rape hundreds of women and young girls. The opposition abolishing the death penalty comes from Le Parti de la Justice et du development (PJD). They are the only Islamic party and claim that the death penalty is consistent with Sharia law. Islamic groups claim sharia law dictates the death penalty in crimes such as murder and adultery. Many scholars of the Quran believe that it indicates the allowance for capital punishment. The main support for this position is to take not life which god has made sacred, except by way of justice and law. The Quran gives a chance for the victim’s family to pardon the perpetrator and forgiveness is encouraged. Islamic law does not keep women from working but emphasizes the importance of housekeeping and caring for the families of both parents. Women are generally not allowed to be clergy or religious scholars. Many interpretations of Islamic law hold that women may not have prominent jobs and are forbidden from working in the government sector. This has been a mainstream view in many Muslim nations in the last century, despite the example of Muhammad wife Aisha who took part in politics and was a major authority in hadith. Several non sharia Muslim countries have had female heads of government or state: Benazir Bhutto in Pakistan, Megawati Sukarnoptn in Indonesia, Tansu Cillarin in Turkey and Khaleda Zia , Sheikh Hasina in Bangladesh. Muslim women also hold important positions in government or in corporations. The head of the central bank is a woman named Dr. Shamshad Akhtar and is also the chairperson; Unilever was also the first female general in the Pakistani army. Under Islamic law a sexual relationship outside of marriage is strictly forbidden. This type of relationship is heinous sin and odious offence. Sexual relationships are reserved for marriage. It is not only seen for procreation but as a way of communicating with your spouse. The process of marriage under Islamic law usually favors the man. It is common knowledge a Muslim man can take four permanent wives. Polygamy may serve to complement family life in certain circumstances but not all the time. It offers some help in certain circumstances where the existing first wife gets little or no protection at all if the husband were bound to divorce her before he could remarry. It would be in the best interest of the family if the first wife would be retained while another wife wants a divorce. A Muslim may not marry or remain married to an unbeliever of either sex. A Muslim man may marry a woman of the people and of the book. Traditionally Islamic law forbids a Muslim woman from marrying a non-Muslim man. If a man chooses to convert to Islam then marriage would be allowed. The process of divorce under Islamic law favors the man. The husband can repudiate his wife however blameless she might have been. A husband can also get the marriage annulled if his wife was suffering from a deformity, had something that prevented them from having marital relations, leprosy, paralysis, blindness in both eyes or insanity. If the husband obtains the annulment instead of exercising his right to repudiation he is not obliged to pay the dower unless he had consummated the marriage. If the exercised his power of repudiation before consummation he would have to pay the dower. A wife on the other had is afforded no comparable right of repudiation and can only claim a dissolution if her husband is impotent, incapable of marital relations or insane at the time of marriage or subsequently after. If the husband is refused or unable to provide maintenance or other indispensable dues for his wife despite an order made by the court compelling him to do so, if he ill treated her so to make life intolerable or if he suffered from disease which could cause danger the wife was entitled to apply to the court and the court could order her husband to divorce her. Under Islamic law there are certain customs which are expected to be fulfilled on a daily basis. These customs include the dress code for women, the holy holidays and dietary restrictions. The customary dress for women emphasizes modesty. In the Quran it tells the believing woman to lower their gaze, guard their private parts and not display their adornment. The only parts showing are the face and hands. Their adornment should only be displayed to their husbands, fathers and sons. The dress code for the men is more relaxed. The loins must be covered from knee to waist. The rationale for this is that men and women are not to be viewed as sexual objects. In turkey a predominately Muslim country has laws against these dress codes. It is against the law in Turkey and France to war a headscarf while in public school. This recently enacted rule caused controversy. In modern nations the dress code is obligatory; there are women who still practice it. Whether they chose to wear such clothes of their own free will and believe it is the will of Allah. Some women wear the hijab(headscarf). The hijab is derived from the Arabic word which means to hide from sight or view. Hijab means to cover the head as well as the body. Islamic law prohibits is people from eating pork and other meats which has not been slaughtered in the name of god. When eating meat Sharia dictates that Muslims may only eat meat which has been slaughtered in the name of god and meets strict dietary requirements. This meat is called Halal (which means lawful). The meat must be slaughtered by Muslims using the correct method and it may not be one killed by excessively cruel or painful means. The traditional slaughter is by slicing the jugular which leads to unconsciousness and eventually death. At least once in his or her lifetime each Muslim is expected to undertake a pilgrimage to Mecca; the sacred city of Islam. The holy pilgrimage is called the hajj in Arabic. While a visit to Mecca is beneficial anytime of the year it must take place during the last month of the Islamic year to fulfill the requirements of hajj. Exceptions are made for those who are physically and financially unable to complete this journey. One is actually commanded not to make this journey if it would cause hardship for his or her family. While visiting Mecca there are certain dress requirements for men and women. The men and women must dress in all white with only their faces and hands showing. They must also not cut their hair and nails, engage in sexual activity, argue, hunt and fight. Ramadan in Islam is the ninth month of the Muslim year which all Muslims must fast during daylight hours. Indulgence of any sort is forbidden during fasting. There are only a few who are exempt from this holiday. The few are soldiers, the sick and the young. ----------------------- [1] Islamic Law and its Implications for the Modern World, S.H Amin c.1989 pg.25 [2] Islamic Law and its Implications for the Modern World, S.H Amin c.1989 pg.26 [3] Islamic Law and its Implications for the Modern World, S.H. Amin c. 1989 pg 169-170 [4] Islamic Law and its implications for the modern world, S.H Amin c1989 pg.113 [5] Islamic Law and its Implications for the Modern World, S.H Amin c.1989 pg.139 [6] Islamic Law and its Implications for the Modern World, S.H Amin c. 1989 pg 76 [7] Islamic Law Myths and Realities, Dennis Wiechman [8] Islamic Society, Human Rights and the Death Penalty: Capital Punishment in Morocco PRC 4/2008