Hey folks, Sharia law.
The scariest new word of 21st-century American media.
A quick google search will expose tons and tons of articles about how this law code is
something Muslim and scary, and apparently rural cities in the United States really need
to ban it.
So, what is it?
Is this Islamic law code really the boogeyman we think it is?
Let’s take a dip into Sharia, the Islamic legal system.
Hi, I’m Tristan Johnson, and this is Step Back History.
I know what you’re thinking…
this isn’t Thursday!
It’s my birthday today and decided to give you all an extra video as my gift to you to
celebrate.
All countries have some sort of basis for their legal code.
In the English world, you have what we call common law, which prioritises precedent in
deciding legal outcomes.
If you can show a similar decision before, then it’s likely decided again.
In many other parts of the world, you have a Civil law, based on Roman Law which instead
of appealing to precedent uses the legal code as the reference in which to interpret.
There’s also a customary law which appeals to tradition, and for Jews and Muslims, you
have religious legal codes, the Muslim one being called Sharia.
Sharia is one of the fundamental concepts in Islam.
It’s a complicated legal code formalised in the first few centuries after the death
of Muhammad.
At the core of Islam is a total devotion and submission of one’s life to god.
The literal translation of Sharia is the path leading to the watering place.
In a desert society, I don’t think you need to try hard to imagine the significance there.
Sharia is the way of making sure that law reflects god’s desires for a proper Muslim
society.
In application, it's a system of duties for Muslims to follow their religious beliefs.
So it functions at various levels.
There is Sharia the literal legal code of a few Muslim majority countries, namely Saudi
Arabia, Afghanistan, and to a lesser extent Oman, Indonesia, and Jordan.
There is also a personal Sharia law which is sort of the rules for what makes a good
Muslim.
There’s an entire field of Muslim jurisprudence trying to sort through canonical text and
a truly massive pile of critical explanation and interpretation of that text which religious
scholars call exegesis.
Because Islamic law was for so long tied to theology, the theological debate in Islam
is way more complicated and nuanced than I hazard to say any other religion.
To understand the ethical Muslim life and why it is the way it is requires decades of
study and mastery of classical Arabic.
Even if you do these things there is a massive field of differences in thought, opinion and
interpretation.
Muslim scholars call this process of attempting to work out and interpret text fiqh, or understanding.
The ‘discovery’ of God's law was considered completed in the 9th century, and formulated
into a series of legal manuals written by a large number of jurists.
Throughout the middle ages, they elaborated and systematised these manuals, and produced
a massive amount of commentaries, interpretations and literature.
There are many many layers to all this stuff.
It differs from the western legal codes in two fundamental ways.
The first is the scope of its coverage.
Shaira not only covers the role of the state, but has commentaries on one’s relationship
with God, their neighbours, and their own conscience.
This includes the formalised rules for the Muslim rituals like times for prayers and
the regulations for pilgrimage and fasting.
It also discusses ethics, differing from the western law by giving advice on not just what
one must do, but what someone ought to do.
There are extensive commentaries on what actions are worthy of praise or blame.
However, in these ethical rulings, there are no prescribed punishments or rewards.
So it’s both a legal code and a code of behaviour.
The second difference is that Sharia is seen as the expression of the will of God.
Muslims believe that communication with god stopped after the death of Muhammad and that
there is, therefore, no more divine revelation left to gain.
Hence why they considered the discovery of the legal code complete, and why that core
is so rigid.
And this is a real problem when it comes to modern-day Islamic jurisprudence.
Social advancement and new issues don’t exist in the supposedly complete legal code,
and so adaptation to modern society is one of the central debates in Islamic legal scholarship.
A million interpretations range from the violent fundamentalism of ISIS to the more open to
interpretation and reexamination position most Muslims follow.
Islamic law is as old as the first Muslim communities.
Muhammad established the first rules himself when he ruled over the city of Medina in 622
CE.
The Muslim holy book, the Qur’an has a few standards of conduct but is in no way a comprehensive
body of law.
During Muhammad’s life, judges interpreted and expanded on general statements from the
Qur’an in an ad hoc fashion.
This continued until the rise of the Umayyad dynasty in 661.
The Umayyads had a vast military empire, and empires don’t function on haphazard legal
systems.
The empire or caliphate created an organised judiciary of qadis, or judges all over.
Their job was to develop a corpus of fiscal and administrative law for the Umayyad Caliphate.
As the Umayyads took land from the Romans and Sassanids, they mixed in aspects of Roman
and Persian law into their structure.
The empire encouraged judges to follow the Qur’an when relevant, but it became a relatively
secular legal code.
In the 8th century, religious scholars began to challenge the Umayyad legal system.
They thought it was doing a poor job at reflecting Islamic ethics.
When the Abbasid dynasty came to power over the Umayyads in the mid-8th century, they
pledged to take these scholar’s desires to heart, and make a truly Islamic society
and state.
They wanted to reform the work done so far, and then use Quranic principles to accept,
reject, or modify the law that existed before.
One of the key figures in this process was al-Shāfiʿī.
He wanted to eliminate schisms and make a more extensive unified law by developing a
grand theory of what sources the law could come from.
He believed that the knowledge of Sharia could only come through divine revelation, which
means that it can only come from the Quran itself, or traditions believed divinely inspired
called the Sunnah.
These traditions came from accounts of the prophet's life by his contemporaries called
the hadiths.
These hadiths are where the most weirdness and contention comes from.
They’re not all created equal.
Some are from sources very close to Muhammad, and some are hearsay from a friend of a friend.
Those less reliable ones for the record tend to be where the really nasty stuff that fuels
terrorism comes from, such as the 72 virgins thing.
It was this process that spurred the collection, classification, and ranking of these hadiths.
The schools that came out of this process would keep a record of official hadiths.
However, some western researchers suspect that a significant part of the Sunnah is the
results of later jurists who ascribed views to Muhammad to have more authority.
al-Shāfiʿī believed that these sources could form a legal code.
When something was not explicitly mentioned in these sources, scholars and judges were
to try to apply principles from the closest parallel cases they could find in the Quran
or the Sunnah.
This is the basis for the classical roots of Islamic jurisprudence that has been crystallised
since the 10th century.
If you have an legal or ethical issue, here’s how you find an answer according to al-Shāfiʿī.
First, find a solution in either the Qur’an or the Sunnah.
If nothing answers your question explicitly, draw an analogy, or if that doesn’t seem
available, attempt to rule either for equity or in the public interest.
This is also only the interpretation of one scholar.
Either way, any conclusions not made directly through canon have less authority.
If all the qualified scholars agree on the outcome, however, it is yaqin or the pure
expression of God's law.
Scholars call this Ijma or consensus.
Around the 10th century, this era of speculation called Ijtihad ended.
Jurists after this are called imitators and are bound to the doctrine of taqlid.
This means they have to follow the doctrine as the manuals say.
However, Ijtihad has a new life in modern times as a way to reform the ancient religion.
Shiites still grow and develop their legal code in this manner.
That being said, the code was surprisingly pluralistic for the 10th century.
Different schools have equal authority, and they go by the statement by Muhammad that
“difference of opinion among my community is a sign of the bounty of God.”
There are also significant differences in Sharia depending on the sect.
Shi’ite Muslims and the lesser known Ibadi Muslims have substantial differences from
both Sunnis and each other in their interpretations of sharia.
The Shi'ite law puts more emphasis on individual rulers and imams they believe to be divinely
inspired than their Sunni brethren.
Different schools of Islamic legal codes perform differently in the Middle-East, India, Northwest
and central Africa, Eastern Africa, the southern Arabian peninsula, Malaysia, Indonesia, Saudi
Arabia, Iran, Zanzibar, and Algeria.
Even with all the claims to authority though, Shaira has never been the exclusive law of
the land.
Sharia can be divided into two categories, what someone owes to god, and what someone
owes to other people.
The latter is what we call the legal part of Sharia, and covers many areas.
Penal laws are pretty old testament.
Crimes from murder to assault are punished by retaliation.
The perpetrator is subjected to the exact same treatment they did to their victim.
They consider these acts an injustice to the victim or the family.
Instead of violence or execution for these crimes, the victim’s family is able to ask
for a diyah or blood money.
There are set punishments for six key crimes.
These are the ones that Islamophobes will point to most often, and it makes sense.
These are quite harsh penalties.
Death for those that leave the church or apostasy, and for highway robbery.
Quick aside on this though, only three countries, Sudan, Saudi Arabia, and Iran have acted on
the death penalty for apostasy since 1985, and only in four cases.
Amputation is prescribed for theft, death by stoning for extramarital sex relations
where the offender is married, 100 lashes if they aren’t, and 80 for unproven accusations
of unchastity or taking any intoxicant.
Yech, now I can tell why Muslim Majority countries not called Saudi Arabia and Iran have stopped
following these, and why many Muslims fought and died against ISIS to prevent this practice
from coming back.
They also have some pretty dry laws about trade, commerce, land ownership, and inheritance.
One thing that sticks out is that there is a ban on charging interest, and so an entire
industry of Islamic banking has risen around the world to help Muslims get mortgages but
still comply with their religious codes.
They also can’t gamble.
They have family law, which covers the rules of divorce, marriage, adoption, etcetera.
This law also includes succession in detail.
If you think about how weird and obtuse the statutes about passing titles down can be,
then you know why I’m just going to skip the discussion here on… the system of inheritance
by male agnate relatives.
Lastly, Sharia has a dense system of procedure and evidence.
What counts as admissible evidence, how much testimony is necessary (and it's a lot), and
so on.
It’s the detailed rules and procedures for running a Sharia court.
So in the 19th century, western civilisation through colonisation and trade brought some
pretty significant changes to Islamic law.
For criminal law and commerce, Muslim society began to feel the traditional sharia systems
were just too far out of touch with the needs of the time.
Not only was the procedure of sharia old, but so was its substance.
Since the 19th century, most Muslim countries dropped the criminal and civil law parts of
sharia and put in new legal systems based on European models and secular tribunals.
The only nation practising Sharia in its entirety today is the Arabian peninsula.
The only things people use Sharia courts for anymore are family law, succession, and some
forms of endowments.
And not even in these realms does Sharia work the way it used to.
In the middle east, Shari'a family law has been replaced with some more modern code.
Sharia courts now have no legal authority.
They’re just places where people go to decide what the proper Islamic thing to do is, and
they can choose to follow or not follow that as they desire.
Even these courts have reformed and changed in response to modern social needs.
And if Muslims ever practice sharia courts outside of Saudi Arabia, it’s this modern
version.
And it’s not just Muslims, Jews have a similar religious court.
Places where you can have judges steeped in knowledge of Islamic law and ethics to work
out disputes, not dole out executions.
Saudi Arabia’s extreme legal code and cruel practices are due to their school of law being
an extremely strict code and a fundamentalist government.
It’s called Hanbali and named after a man named Ibn-Hanbal.
It’s its own thing altogether.
So then why all the scare?
Well, if your only exposure to Islam is watching Saudi Arabia or radical fundamentalists on
TV, you probably have a very skewed concept of Islam and the Islamic world.
It's religion, with wild claims and retrograde laws just like every other religion.
And just like every other religion, their followers with a few exceptions adapt, change,
reform, and remove what parts don’t work anymore.
So if you don’t know what Sharia is, and all your information about it comes from reactionaries
trying to exploit fear of a nonspecific other for clicks and watch time, then yeah you’re
going to be terrified.
Maybe, just maybe, ask a Muslim?
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