Sharia is the body of Islamic religious law based on the Qu'ran and the words and actions of the prophet Mohammed and his followers.
In the West, Sharia has become synonymous with the brutal punishments meted out in Islamic states, but the majority of laws are to do with everyday issues, ranging from personal hygiene to banking.
Hard line Muslim leaders claim that Sharia is eternal and can never be changed, while moderates argue that it is not a strict set of laws but should be open to interpretation.
Sunni and Shia Muslims follow different schools of thought in interpreting the Sharia laws, but all Muslims are required to live according to Sharia wherever they are.
Islamic countries such as Saudi Arabia and Iran have implemented Sharia as the legal system of the country, but in Britain it has no legal standing, despite the introduction of Sharia-compliant banking and food.
Examples of obligatory laws
• Earnings must be lawfully obtained
• Food must be halal
• Personal hygiene must be of a very high standard
• Couples must have a full bath in flowing water after intercourse
• The body must be covered modestly
• Prayers must be said five times a day
• Believers must fast during Ramadan
By Clare Dwyer Hogg and Jonathan Wynne-Jones, The Telegraph
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Sharia is an Arabic word meaning "the right path". The Sharia comes from the Qu'ran, the sacred book of Islam, which Muslims consider the actual word of God. The Sharia also stems from the Prophet Muhammad's teachings and interpretations of those teachings by certain Muslim legal scholars.
Muslims believe that Allah (God) revealed his true will to Muhammad, who then passed on Allah's commands to humans in the Koran.
Since the Sharia originated from Allah, Muslims consider it sacred. Between the seventh century when Muhammad died and the 10th century, many Islamic legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire.
The classic Sharia of the 10th century represented an important part of Islam's golden age. From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues. In the modern era, the influences of Western colonialism generated efforts to codify it.
Following Muhammad's death in A.D. 632, companions of the Prophet ruled Arabia for about 30 years. These political-religious rulers, called Caliphs, continued to develop Islamic law with their own pronouncements and decisions. The first Caliphs also conquered territories outside Arabia including Iraq, Syria, Palestine, Persia, and Egypt.
As a result, elements of Jewish, Greek, Roman, Persian, and Christian church law also influenced the development of the Sharia.
Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty Caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law.
Following a period of revolts and civil war, the Umayyads were overthrown in 750 and replaced by the Abbasid dynasty. During the 500-year rule of the Abbasids, the Sharia reached its full development.
Under their absolute rule, the Abbasids transferred substantial areas of criminal law from the kadis to the government. The kadis continued to handle cases involving religious, family, property, and commercial law.
The Abbasids encouraged legal scholars to debate the Sharia vigorously. One group held that only the divinely inspired Koran and teachings of the Prophet Muhammad should make up the Sharia. A rival group, however, argued that the Sharia should also include the reasoned opinions of qualified legal scholars. Different legal systems began to develop in different provinces.
From this very brief history of the Islamic empire and the development of the Sharia, some scholars argue that the Sharia evolved over time and transformed to meet the needs to society during their respective times. In other words, the Shariah was not static but dynamic.
Other scholars argue that the Sharia was already present during the time of the Prophet and was already fully developed by the time the Prophet died. In other words, this was what was laid down by the Prophet and merely continued after the Prophet died (meaning, the Sharia did not evolve or transform over time). This argument is to support the theory that the Sharia came from God and was not ‘invented’ by man over hundreds of years following the death of the Prophet.
In an attempt to reconcile the rival groups, a brilliant legal scholar named Shafiee systematized and developed what were called the "roots of the law". Shafiee argued that in solving a legal question, the kadi or government judge should first consult the Koran. If the answer were not clear there, the judge should refer to the authentic sayings and decisions of Muhammad. If the answer continued to elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from "the precedent nearest in resemblance and most appropriate" to the case at hand.
This clearly shows that even the scholars themselves could not agree on whether the Sharia is God’s law or man’s creation based on interpretation of the Koran and the teachings (examples) of the Prophet.
There are five laws under the Sharia law. Basically, these are:
1. ibadah (ritual worship)
2. mu'amalat (transactions and contracts)
3. adab (morals and manners),
4. i'tiqadat (beliefs)
5. 'uqubat (punishments).
There are three categories of crimes in Sharia law. These are:
1. qisas
2. hudud
3. tazir.
Qisas involves personal injury and has several categories: intentional murder (first-degree), quasi-intentional murder (second-degree), unintentional murder (manslaughter), intentional battery, and unintentional battery.
A qisas offense is treated as a civil case rather than an actual criminal case. If the accused party is found guilty, the victim (or in death, victim's family) determines the punishment, choosing either retribution (qesas-e-nafs), which means execution in the case of intentional murder, imprisonment, and in some cases of intentional battery, the amputation of the limb that was lost; or compensation (diyya) for the loss of life/limb/injury.
The sharia judge (or, in modern sharia systems like those of Iran or Iraq, the state) can convict for and legally punish only qesas crimes on his own authority. However, the state itself may prosecute for crimes committed alongside the qisas offense. If the victim's family pardons the criminal, in addition to the sharia punishment he would normally receive a tazir prison sentence (such as ten to twenty years in prison) for crimes such as "intentional loss of life", "tazir assault and battery" "disturbance of the peace", and so forth.
The second category of crimes is hudud (or hadd). Hudud crimes are crimes whose penalties were laid down by the Qu'ran and are considered to be "crimes against God". The hudud crimes are:
1. adultery (zina), which includes adultery, fornication, incest/pedophilia, rape, and pimping
2. apostasy/blasphemy
3. defamation (meaning false accusation of any of these things)
4. sodomy/lesbianism (or sodomy rape)
5. theft
6. use of intoxicants (alcohol/drug use)
7. "waging war against God and society" (rebellion)
Hudud, therefore, is merely one part of the very broad laws that come under the Islamic Sharia. However, this appears to be the only focus for debate, in particular in Malaysia.
Thus, the current brouhaha about Hudud is only a small part of a very vast Sharia system. In reality, we already have the Shariah in Malaysia. The only thing we do NOT have yet is the Hudud part of Sharia.
Upon closer inspection, the ISA is worse than Hudud. Under the ISA you can be detained BEFORE you commit a crime. That is why the ISA is called a 'preventive law'. Under the Shariah you CAN'T be punished for a crime you have not committed yet. The Sedition Act, Criminal Defamation, etc. are more draconian than Hudud by far.
If we compare apples to apples, there are many elements of the Sharia which are fairer than common laws, and vice versa of course. So we can't say Hudud is better or common law is better. It all depends on specifics. Maybe the one bone of contention is the punishment for theft (hand cutting). If we resolve that one needling issue then the rest is not that much an issue.
Are we opposed to Hudud because it is 'ISLAMIC LAW" OR BECAUSE IT IS UNJUST?
What if it was not called Hudud or Sharia but called 'Common Law'? Would it be acceptable then? For instance, if the Parliament amends laws that decree the punishment for the crime of corruption is firing squad (like China) but it is not called Shariah/Hudud would that be acceptable?
What if Parliament passed a law that the punishment for rape is castration? But this is NOT Islamic law and the word Hudud would not appear. Would many support it then? I would!
Can we disagree that rapists and murderers should not be punished? In fact, many feel Hudud is not even severe enough and they want it more severe. What many do not realise is that the hand cutting punishment is not an automatic thing. The criminal must first be assessed as to why he or she stole. And if it is because of poverty, then instead of cutting off the thief's hand, he or she has to be put under welfare and be taken care of by the state. In fact, the head of the welfare department instead would be punished for neglecting the poor and destitute that resulted in them having to steal to survive.
The issue is the word ISLAM in that law of Hudud, which, as you can see, is a SMALL part of the Sharia.
So what is really happening in the debate? Is hudud being used again by DSAI to curry favor with PAS and as a leverage against DAP to bargain for seat allocation? He expresses his PERSONAL opinion, and then claims he will consult PKR on it later (read more here).
We cannot afford to be battling on such issues and lose sight of the REAL BATTLE before us - winning the next GE! Politics and religion do not mix. Religion should not be used as a subject for political debates or policy decisions. Nip the problem in the bud before this issue brings about the downfall of PR! Let's keep our focus and fight the real enemy!
I suppose, this is Malaysia for you. Malaysians would debate till the cows come home about the Internal Security Act (ISA) whereas the ISA is just one small part of many things that is wrong with the Malaysian justice system and the Malaysian judiciary.
Written by Raja Petra Kamarudin and Masterwordsmith
*This post was written as a result of a discussion on hudud via Skype chat on 23rd September from 5pm to 7.30pm. Masterwordsmith acknowledges with grateful thanks the guidance and input of RPK on this topic.
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Further reading:
1. Stoning Women to Death in Iran and Afghanistan
2. RAINY DAY WOMEN in THE STONE AGE
frans This is revealing!!
Hudud is actually a more dimensional law-system with different angles. Especially the example of theft is very interesting.
In case the employer is payfing his employee far too little. Consequently the employee is stealing his "boss". The employer will be hold responsible for the act of his employee?
By the way I guess introduction of Hudud is not realistic in short term because it should be facilitated by the Government which should provide the potential, professional staff. Moreover it appears to me that Hudud is not so simple because it is more dimensional. Other law-system (Roman) is quite simple codification: You did this wrong....consequently you get this punishment,
But anyway I read this article with captivating interest with the remark I let some political remarks for what it is. It would be more sophisticated that the article was restricted only to the Hudud.