What Is Sharia Law and How Is It Derived - Research Paper Example

Research on Sharia Law Affiliation with more information about affiliation, research grants, conflictof interest and how to contact Research on Sharia Law What is Sharia law and how is it derived? Sharia law is the sacred law of people who practice Islamic faith. The word “Sharia” is derived from Arabic, and literally means-way or path to the waterhole. This could be interpreted as the way of life, since water is an essential pre-requisite for human survival. Fundamentally, Sharia lays down the path of virtues and prayers which the faithful should pursue, wholeheartedly and in harmony with nature and other fellow human beings and is nothing short of a “comprehensive guide regulating life from birth to death.” (Roberts, 2007, p.13). However, the origins of Sharia laws derive from a combination of laws, like Roman laws, contents of the Holy Koran (qiyas), teachings of Prophet Mohammed and present day assimilations of ancient legal interpretations and treatises (ijmas). However, an interesting aspect of Shari has been that in their countries of acceptance and faith, different interpretations exist for these laws. Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have varying interpretations of Sharia as well. Thus, Sharia practices in African countries may be quite different from those in Arab countries. On the other hand, Muslim population in India may have different cultural and sociological interpretation of Sharia than what is being done in Indonesia, or Yemen, for that matter. Thus, what is important is the sociological background of these laws in the context of respective countries where these laws are followed. Moreover, it is also seen that Islam has two sub sects – Sunnis and Shias. It is now necessary to consider the differences between Sunni and Shia Muslims, which essentially finds the difference in religion but politics. This is primarily because it concerns leadership matters subsequent to the prophet’s era and what led to division of Muslim sect soon after the death Mohammed. When the question arose as to who would inherit the mantle of the Prophet, of one sect believed that leadership should be taken over by one of his worthy followers. But Shias believed that leadership should move to the member of his own kith or kin, like his son- in- law, or nephew. Thus, major differences arose between Sunnis and Shias, such that the latter were not able to ever reconcile themselves to the fact that Ali’s descendants were not provided due leadership in the Muslim order after the lifetime of Prophet. Thus, they refused to accept the authority of Sunni leadership but placed their faith on the Imams, or clergy. The origins of Sharia laws are derived from a combination of laws, like Roman laws, contents of the Holy Koran (qiyas) which are actively practiced by Sunnis. On the other hand, Shias believed in a more objective kind of thinking called akl, the use of the intellect and one’s own intelligence, rather than blind faith on spirituality. It is also interesting to note that more than a religious and/or political theory, Sharia is also a way of life and a testament of virtuous socially acceptable tenets. As a matter of fact, it is for the daily dilemmas and challenges that the Shari is being utilized by ordinary and humble Muslims, not only in these countries, but also acting as a guiding light for Muslims in foreign countries, for gaining better control over their lives and also inspiring others to join their faith. The Sharia offers guidance for crime and its punishment, death and inheritances, prayers and rituals marriages, divorces, sexual lives, diet, public conduct and probity besides regulations that could help people lead chaste, moral lives according to the covenants of Islam that have been in vogue since centuries. Besides, unlike other forms of worship, it offers leads on how to regulate one’s lives, abjure vices and evils, undertaking temperance and self-control. This is perhaps the main reason why millions of devout Muslims from all over the world swear by the Sharia as a Moral Code of Conduct and a noble way of life, awe inspiring yet practical, forceful and compelling, yet discretionary. “Certain punishments are also indicated as also the virtues of tolerance, justice, kindness, charity, kindness to women, children and servants, patience, repentance and forgiveness.” (Khan, n.d, para.2). Where it enjoys official status, Sharia is applied by Islamic judges. The religious heads have varying roles, functions and responsibilities depending on the interpretation of Sharia, while the term is commonly used to refer to the jurisdiction of leader of communal prayers, the imam who may also be a scholar, religious leader, or even political leader in a power race for religious supremacy. The enforcement and deployment of the Sharia is a longstanding goal for Islamist movements in many countries. For instance, in India, they have maintained institutional recognition of Sharia to adjudicate their personal and community affairs. In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes, with varying degrees of success. However, arbitrary imposition of Sharia has often met with violence, dissension and blood shed. History has also borne mute witness to wars instigated due to the forceful deployment of religious tenets in social cultures, as is seen in the context of Sudan and other African countries. How does Sharia law complement American’s legal system? The Sharia is a form of religious courts which enforces punishment to transgressors and violators of religious tenets just as the American legal systems applies penalties and punishment to violators of law. Perhaps one of the major reasons for enforcement of Sharia in the US is that the First Amendment of the US Constitution has favored religious freedom and allows one to choose which religious premise one wishes to follow. “Further, there are several basic premises upon which the United States was founded in order to promote a free society. One of the most important of these is religious freedom; first, that the laws of the nation would be secular and that the government would not "establish" a religion (separation of church and state), and second, that people living here would be free to worship as they see fit, or not at all. These concepts are embodied in the Establishment and Free Exercise Clauses of the First Amendment.” (The Patriot Post: Sharia Law in the US, 2010, para.2). However, there are aspects that cause concern regarding unbridled enforcement of Sharia in the American context. One major aspect is that of polygamy, which, although allowed under the Sharia, is categorically banned in the US and is considered against law. While US has positively favored monogamy and the sanctity of marriage and marriage vows, the Sharia advocates that a person could have maximum of four wives at a time, and could also break marriage by uttering “Talaaq” three times in front of a Qadi. Another area has been the treatment of women under Sharia tenets. Under these laws, women have a secondary position as compared to men and could be used by the latter at their will and pleasures. Since marriage is sacrosanct under Muslim law and adultery is a punishable offence, a man could have relations with his wife whenever he wished to, but this is in contravention to American society wherein “Concubines and harems have no place in a First World country that prides itself on having achieved equality between the sexes.” (The Patriot Post: Sharia Law in the US, 2010). In advanced European countries and societies, women have equal status as that of men, while this is heavily compromised in the case of Muslim societies where not only women secluded and cloistered from the roving eyes of men but also are treated as unfavored people except for food and sexual pleasures. Besides, their status has not improved over the years. Another aspect that is of major concern is that there have really been no modifications and improvements in Sharia laws over the centuries and rigid enforcement of these laws have ensured that Sharia have not progressed in tune with changing world societal changes. However, American laws could take pride in having made major changes and are, by and large, in tune with the times. This is one major concern in that while Sharia may be seen in terms of strict enforcement, irrespective of local surroundings and characteristics, American laws have always believed in tending true justice and fair dealings considering all important factors impugning the cases. “The prospect of more and more legal cases in America being influenced, as they are allowed to, by Sharia law might threaten our social fabric—assuming that we value the concept of achieving a fully cohesive society. America, and Anglo-Saxon culture in general, has traditionally not frowned on multiculturalism and the existence of parallel communities as much as has Continental Europe. Even so, traditional aspects of Sharia law stand out in the scale of their difference from the legal practices and codes of much of the rest of the country.” (Joseph & Martin, 2010, para.3). Moreover, keeping in view the best interests of both Shari’a and American laws, it is central that while justice needs to be maintained at all costs and time, it is also important that a blind and arbitrarily subjective of Sharia would do more harm than good, specially when the enforcement and deployment of outdated laws in a 21st century setting is also a matter of major refrain and concern. This is more so when we need to consider the fact that society have undergone major upheavals and radical reforms over its eventful history and the use of ancient solutions to find remedies to present day social and personal issues is indeed impractical, if not outright uncharacteristic of our modern civilized society Thus, the best way out for incorporation of Islamic laws would be in terms of integrating the best aspects of Sharia in American legal jurisprudence. As in every religion there are good and excellent aspects that have been prepared by far sighted and wise leaders that could hold relevance in today’s world and this is what the American judiciary should consider emphatically. Perhaps, these tenets devised were not only for a particular sect or society but for the good of humanity, since Prophet Mohammed was also a humanist. What are the major differences between Sharia law and the American Legal System? The answer to this question could be seen from the perspective of origin, application and enforcement of both these laws and legal systems. Origins: Shari laws, essentially have evolved from an amalgamation of Roman laws, contents of the Holy Koran (qiyas), teachings of Prophet Mohammed and other seers and present day assimilations of ancient legal interpretations and treatises (ijmas). Essentially, Sharia is a Code of Conduct for Muslims and also a way of living for them. On the other hand, however, the American legal system has evolved from common law, legal precedents and evolving legal acts, besides of course, the ubiquitous written American Constitution which is more often than not, misinterpreted rather than rightly understood. Thus, while Sharia is more narrow and strict in its definition and scope, American legal system is more transparent, broad based and all encompassing and is always open for future amendments and refinements in line with existing needs and social requirements. Application: Next, Sharia laws are enforced by religious courts, by selected religious leaders, who may be just one individual who hears, tries and enforces justice and punishment, and their word may be the final word as far as the case is concerned. However, the American judicial system would comprise of a jury, who provides a collective decision, based on consensus. In the American jury system, there may be some member judges who vote for the decision and others who abstain or goes against the decision. Finally, in the American system, the majority votes decide the case. It is democracy without any influence of religion but under Sharia it is religious tenet, all the way. Next, coming to the enforcement, there is strictly as per the Sharia rule that applies, and perhaps the culprit may not be allowed to have the benefit of doubt, in case of dubious evidences, but in the American system the true democratic set up prevails, and the alleged transgressor is treated as innocent until he is proved guilty, beyond doubt. In the event of doubt, the defendant is given due benefits, not punished and allowed to go scot free. Enforcement: Another important area of difference between enforcement of Sharia and American laws are with respect to marriages and divorce laws. While Sharia actively encourages and abets polygamy, allowing a person to have maximum four wives at a time, this practice is disallowed by American courts which strongly believes in the institution of marriages and the sacrosanct sanctity of a marriage. Similarly, under Sharia divorce laws, a person could get rid of his wife by just uttering “Talaaq” three times in front of a religious priest, or Imam. However, this is not possible under American laws wherein complex divorce courts proceedings would have to be initiated and concluded and a great deal of funds shelled out through alimony settlements. Moreover, under Sharia laws, adultery is punishable through stoning and in case of crimes; the offending part of the body would be dismembered. The ruling of Sharia courts, given after a great deal of circumspection and deliberation, are however binding on the parties, while in the case of American Courts, further appeals could be made to higher courts, the Court of Appeals and even the Supreme Court of the land. Appeals in the case of the Sharia could be to the Caliph or the Emperor of the Sultanate. The treatment of women is another area of major difference between the Sharia and American judicial system. “Women are not allowed to drive, are under the guardianship of male relatives at all times, and must be completely covered in public.” (Johnson & Vriens, 2010). At one time the enforcement of Sharia ensured that girl child were not sent to schools and were relegated to being just slaves at their homes reduced to taking care of household duties. But over the years with changes in the global social order and entry of foreign domination and social reforms, the condition of women has seen a slight improvement in their status, but this is still absent in Sharia dominated countries like Kingdom of Saudi Arabia and Tunisian, where women have a much lower position as compared to men folk. However, under American laws, women have come to occupy high social status and have even command top government and public sector positions. The distinction between genders is covert in American societies but is blatantly obvious under Sharia ruled states. Conclusions: Although seen as a moral and practical Code of Conduct and probity, it is necessary that Sharia needs to be tuned in tandem with modern times. The world order is fast changing and laws need to be in sync with changing social and cultural value systems. Although the fundamental structure and framework of the law may be unaltered, it is necessary that reforms be made in its practical implementation and application to better the lot of the Muslim community all over the world in general and women folk in particular. Reference List Joseph, A. J., & Martin E. B. (2010). The U. S. courts must take a stance on Sharia low. The Harvard Crimson. Johnson, T. (2010). Islam: Governing under Sharia. Council on Foreign Relations. Khan, S. N. (n.d.). Understanding Sharia. Paklink. Roberts, G. L. (2007). Sharia low and the Arab oil bust: PetroCurse or cost of being Muslim? Universal Publishers, p.13. Sharia low in the U.S. (2010). The Patriot Post. Read More