Which legal tradition has the following characteristics?
- Equality before the law
- Innocent until proven guilty
- The right to counsel
- The right to due process
- Judges are not answerable to political rulers
Most people might say the American or European legal systems. That could be true. It would also be true if someone said the Islamic legal tradition. Perhaps this is why in 1935, the United States Supreme Court honored Prophet Muhammad (peace be upon him) as one of the 18 greatest lawgivers in human history.
The late Dr. Muhammad Hamidullah, an acknowledged expert on international law, has written two thought-provoking books in which he argues that Islam pioneered international law and the first written constitution of the world was developed by Prophet Muhammad (peace be upon him) when he founded the city state of Madinah.
Sharia has been presented by fear mongers as monstrous, murderous and a grave threat often without even understanding what the term means.
The word sharia means a “path” or “a way” in Arabic and it covers a huge range of human activity. On a personal level, sharia is a system of guidance for every day life. It is not an exaggeration to say that it covers a person’s entire existence. Birth, death, marriage, diet, hygiene, sex, beliefs, theology, prayer, fasting, charity and funerals are all covered by sharia. Historians disagree on when exactly Muslims arrived in the Americas. Some argue that Muslims came to the west 5 centuries before Columbus while others say it was in the 14th century. Either way, sharia has been practiced in the west for a very long time.
On a broader level sharia covers a large number of legal branches such as:
- finance and trade
- civil law
- international law
- constitutional law
- family law
- tort law
- criminal law
- military law
Each area of law has its own specialization, its own highly developed procedures and regulations and a broad range of legal interpretations and understandings. Scholars of Islamic law agree that time, place and social customs impact the law and its rulings.
The vastness and comprehensive nature of Islamic law often eludes simple minded bigots or those “experts” on Islam that would like to reduce sharia to short, fear inspiring soundbites.
For over a thousand years Islamic scholars and jurists have neatly defined the core values and goals of the sharia. Based on their exhaustive understanding of the primary sources of the law, legal experts tell us the objectives of sharia are to protect: religion, life, intellect, progeny and wealth. Contemporary legal scholars are seeking to expand the list to include concepts such as fundamental rights and liberties, economic development and peaceful coexistence among nations.
The most criticized and talked about aspect of the sharia are its prescribed corporal punishments. For many people, that is the sum total of sharia. This is the subject of our second article on this topic (click here).
The great jurist and Islamic scholar, Ibn Al-Qayyim, wrote “Any ruling that abandons justice in favor of tyranny, mercy for its opposite, public benefit for corruption, and wisdom for futility – would have nothing to do with the sharia even if it is shown, by some remote interpretation to be a part of it.” Ibn Al-Qayyim wrote these words over 800 years ago.
Classical jurists often presented a dynamic vision of Islamic law. They envisaged a legal system that could respond to changing social, political, economic and technological conditions of Muslims wherever they governed themselves in any part of the world. It is important to note that Islamic law cannot be imposed in the absence of an Islamic state. In other words, there is no compulsion and no such thing as mob style justice in Islam.
At various times in Islamic history, scholars defended the sharia from being manipulated by corrupt Muslim rulers. It was not uncommon for them to be tortured or even killed for speaking out. When European colonists ruled the Muslim world, the attacks were amplified and included a systematic dismantling of educational institutions, imprisonment and murder of scholars and a relentless stream of propaganda. Post independence, autocratic rulers (often colonial proxies) would reward scholars who toed the line and brutalized those who didn’t. The evolution of Islam’s legal system has greatly been affected by such traumatic events.
The most common criticism against sharia is directed at its fixed corporal punishments. These penalties have been called barbaric but critics of sharia could rightfully be asked if they may be throwing out the baby with the bathwater. Islamic law is extremely broad and diverse. At present the application and development of Islamic law is uneven at best. In fields such as finance, constitutional theory and medical ethics, legal experts have done a great deal of positive work. The $1.5 trillion Islamic finance market is one of the fastest growing in the world and has brought prosperity to non-Muslims and Muslims alike. During the international economic crisis of 2008, Islamic financial institutions were affected but remained relatively stable. Influential economists, such as Kenneth Rogoff from Harvard University, suggest the equity and risk sharing nature of Islamic finance possesses an advantage over conventional debt centered instruments.
Similarly, Islamic scholars have cultivated a careful and balanced approach toward newer medical technologies such as stem cell research, artificial insemination and organ donations. They have shown how the broad sharia principles can help guide these technologies in Muslim countries. For example, artificial insemination is considered permissible so long as it occurs between husband and wife.
But what about the cruelty and brutality of the sharia? There are roughly 6 fixed punishments (or “hudood”) in Islamic law. They include punishments for murder, theft (break and enter), highway robbery, fornication, adultery, falsely accusing a woman of sexual impropriety and the use of intoxicants. In the majority of these cases, a host of qualifiers must be present before the punishment can be carried out. For example, judges are exhorted to err on the side of compassion and mercy in all cases involving the hudood. If there is the slightest reason to doubt the guilt of a defendant, the fixed punishment is lifted. Similarly, if there are contributing factors such as a shortage of food, a person is not considered liable if they steal. Before a man or a woman can be convicted of fornication or adultery, four credible witnesses must come forward to say they clearly saw the act of penetration taking place. A spectacle such as this would be unheard of in Muslim society. In fact, if less than four witnesses come forward or if someone falsely accuses a woman of sexual impropriety, then those making the allegations will face punishment by flogging. Even if a spouse walks in while their partner is engaged in illicit sexual relations with someone else, the spouse’s testimony could not singlehandedly bring about a charge of adultery. The most a court would do in such a case would be to dissolve the marriage.
Islamic scholars often state that one of the main objectives of the hudood is to help people realize the enormity of these crimes in the sight of God. The impossibly high standards of proof needed to convict a guilty person meant the punishments were “almost never applicable.” What critics often lose sight of is that the explicit moral deterrent of these punishments has had a tremendous influence on Muslims for centuries and has helped generations of human beings from Marrakech to Montreal stay clear of these vices.
Even when such penalties are applied by some Muslim countries, a variety of respected Islamic scholars and thinkers have criticized the way they are carried out pointing to a number of sharia violations.
- The rich and powerful are rarely brought to justice
- Weaker members of society often do not have access to defense counsel
- Confessions are often extracted after beatings and abuse which are unlawful
- Extenuating circumstances such as poverty, illiteracy or intellectual maturity may not be taken into account
- Judges may be poorly trained or may be unaware of new forms of evidence found in the social sciences or recent investigative technologies
- Certain laws (such as Pakistan’s rape law or the ban against women driving in Saudi Arabia) are themselves in violation of sharia teachings
The call to impose sharia in Muslim countries is seen by many believers as the restoration of a divinely prescribed legal system that will benefit their societies. The more its opponents decry it, the more determined its supporters are to implement it. For over a century, Islamic scholars have researched and commented on ways to improve the implementation of sharia, of the need to reexamine certain rulings in the light of changed conditions and of new methods for legal instruction, training and distributing justice. These scholarly works could do much to defuse the passion on both sides of the debate. If only the voices of knowledge and wisdom could be heard above the clamor of ill will and irrationality.
 Cf. The Muslim Conduct of State, and, The Written Constitution of the World, by Dr. Muhammad Hamidullah