This article is written by Miss Swati Mahor, a 2nd year law student of Lloyd school of law, Greater Noida
ABSTRACT:
The provided text offers a comprehensive examination of Sharia, the Islamic legal and spiritual system, exploring its diverse interpretations across five major schools of thought. It delves into the historical context of how Sharia became intertwined with governance in various Muslim-majority countries, often replacing secular legal systems. The text highlights the discrepancies in the interpretation and implementation of Sharia, particularly in its impact on women’s rights. It argues for the need to reevaluate and adapt religious laws, including Sharia, to align with modern societal values. The concluding remarks stress the importance of reflection and revision to address the challenges posed by the intersection of religious laws and constitutional governance. The text encourages an ongoing dialogue to navigate the complexities and ensure compatibility with evolving social structures.
INTRODUCTION:
Definition of sharia; the sharia is Islam’s legal and spiritual system both divine and philosophical because it is said to be god’s will for human kind philosophical because it is based on the human understanding of what the divine will is. In Arabic the sharia translates to the clear well-trodden path to water the human interpretation of sharia is called the Fick which literally means understanding. Now these terms are used interchangeably but they are not the same sharia is considered divine, permanent, infallible but its understanding is human it is a set of rules put together by Muslim scholars over the centuries the rules have been drafted and applied to suit those in power.
Where do the rules come from??
There are three sources
1.Quran: which is Islam’s holy book
2.Sunnah: which is basically the deeds od prophet Muhammad
3.Hadees: the sayings of the prophet.
There is range of other sources to work out how God wants Muslims to live but there is no single law book no definite statute no set judicial proceedings to determine that the sharia is its basically a vast collection of different often conflicting interpretations this interpretation gave birth to 5 schools of thoughts 5 legal schools of sharia or there are different kinds of sharia. All five of them are named after the theologist and jurists the men who interpretated the Islamic texts
HANBALI – The Hanbali school, one of the four major Sunni Islamic schools of jurisprudence, is distinguished for its stringent adherence to the Qur’an and Hadith, making it the smallest and strictest among its counterparts. This school places a strong emphasis on the literal interpretation of religious texts, avoiding speculative reasoning to a greater extent than
other schools of thought. Predominantly practiced in countries such as Saudi Arabia, Qatar, the UAE, Bahrain, Syria, Oman, and Yemen, the Hanbali school is influential in shaping Islamic legal perspectives in these regions. Notably, the Hanbali stance on adoption reflects its cautious approach, emphasizing the prohibition of altering lineage. In the context of adoption, the school maintains that an adopted individual retains their biological family name and inheritance rights, discouraging full legal adoption in Favor of acts of kindness and support for orphans. While these principles characterize the Hanbali school, it is essential to recognize the potential for variations in interpretation and application among individuals and communities within the school. Islamic jurisprudence is diverse, and scholars may have nuanced perspectives on various issues.
MALIKI – The Maliki school of Sharia, known for its reliance on independent reasoning in interpreting the Qur’an, holds a prominent position in various regions, particularly in West Africa. This Sunni Islamic jurisprudential tradition spans across the entirety of West Africa and extends to countries such as Morocco, Algeria, Libya, Kuwait, Sudan, Chad, Niger, Burkina Faso, Mali, and Guinea. In contrast to more rigid approaches, the Maliki school allows for a certain degree of flexibility in applying its principles. While sharing the fundamental commitment to preserving lineage, the Maliki school demonstrates a nuanced stance, permitting adaptations in specific contexts. This flexibility highlights the diversity within Islamic jurisprudence, recognizing variations in interpretation among scholars and communities adhering to the Maliki school.
SHAFI – The Shafei school of Sharia, notable for its reliance on consensus in interpreting the Qur’an, holds a significant presence in East Africa and Southeast Asia. This Sunni Islamic jurisprudential tradition is followed in various countries including Egypt, Eritrea, Djibouti, Somalia, Maldives, Malaysia, Ethiopia, and Indonesia. The school places a strong emphasis on the importance of consensus in understanding religious texts, aligning with the broader Sunni tradition. While upholding the fundamental principle of preserving lineage, the Shafei school allows for certain variations in its application, recognizing the influence of consensus in shaping specific interpretations and practices. This adaptability within the Shafei’s school underscores the dynamic nature of Islamic jurisprudence, acknowledging diverse perspectives and practices within the communities and scholars following this tradition.
HANAFI – The Hanafi school of Sharia, renowned for its early origins and marked flexibility, uniquely combines both consensus and independent reasoning in its approach to interpreting the Qur’an. Boasting the largest following globally, with approximately one-third of Muslims adhering to its principles, the Hanafi school holds significant influence in various regions. Particularly prevalent in countries such as Turkey, Lebanon, Jordan, Afghanistan, Pakistan, Egypt, India, and Bangladesh, this school’s adaptability is underscored by its allowance for a greater degree of interpretative flexibility. While upholding the foundational principle of preserving lineage, the Hanafi school’s approach accommodates diverse interpretations and practices, contributing to its widespread acceptance and appeal among the diverse Muslim communities worldwide.
JAFA’RI – The Jafari school of Sharia, exclusive to Shia Muslims, holds a prominent role in the legal systems of Iran, where it is enshrined in the constitution, and in Iraq, garnering significant followers. While its primary adherents are concentrated in these regions, smaller pockets of Jafari school followers can be found worldwide. Named after the sixth Shia Imam, Jafar al-Sadiq, this school boasts distinctive principles in legal guardianship. Despite maintaining the prohibition of altering lineage, the Jafari school exhibits variations in specific practices compared to Sunni schools. Beyond its influence on the legal landscape in Iran and Iraq, the Jafari school represents a unique strand within Islamic jurisprudence, shaping the legal perspectives of Shia Muslim communities globally.
We have 5 different version of sharia they are not different in their fundamentals of faiths but their practice there are differences in how they prey, how they resolve legal matters, how they resolve marital matters and how they deliver the punishments on certain crimes.
Despite the guiding principles within Islamic law, challenges and controversies surrounding adoption persist in Muslim-majority societies. One of the primary issues is the lack of a standardized legal framework, leading to variations in interpretation and implementation across regions and communities.
They problem begins when religion was mixed with governance many Muslims who embraced sharia the thought of it as a substitute for the law of the land where the problem lies that the sharia was just suppose to be the way of living it was not meant to be associated with political power when European colonialism begin to spread the crown and the church came together the church was used to further the interest of rulers the same thing happened in the Muslim kingdoms and while European nations later separated the church from the state many Islamic country did not France Britain and other European powers had colonized most of west Asia, Africa, and Asia when they left leaders of the Muslim majority countries faced the dilemma should they govern based on previous Islamic values or should they embrace law inherited from colonial rule.
Well, they chose the sharia as the basis of their legal justice system and this gave birth to all kind of theocracies hardline and moderate countries Algeria, Libya, Egypt, Syria, Iraq, Pakistan, Sudan, Oman, yamen they all had the sharia even countries who are not colonized by the west adopted sharia. In 1932 the Saudi Arabia was formed as the theocratic monarchy, 1979 Iran witnessed and Islamic revolution until they Iran was a secular monarchy after the revolution the clerics took power and the country became an Islamic republic then in 1996 the Taliban seized power in Afghanistan, they made it a terror regime based on the sharia.
So the main question is what makes this law acceptable in other countries and horrific in others is its understanding and implementation some countries enforce the most discriminatory and patriarchal aspects of the sharia they selectively picked the certain verses from Quran and legalized draconian practices like polygamy, triple talaq, genital mutation and also enforced rules that has little or no basis in Islam research shows that most oof the punishments are not sanctioned in the Quran they were not practiced by the prophet yet today they have been made the highlights of sharia they are being used to dictate daily lives of Muslims the world over the lot of the followers do not understand this they just stubbornly uphold ignorant and unjust practices the biggest victicm of this is Muslim women.
Does God judge differently based on gender? For many clerics it does even though women worked and fought alongside the prophet they will not tell you this. In some countries women cannot step out without an abaya or a vail but men can dress the way they want women can not stand for president but men can govern for a life time women can not choose to have abortion but men are allowed to have 4 wives women can not travel without the male guardian women can not drive women can not retain custody of a child after divorce and they receive half of what is awarded to their brothers in inheritance. The list of restriction in the name of god in never ending and the sharia’s misuse doesn’t end there it is cited to justify what they call conquest mind set to wage in the name of Islam especially the terror outfits who portray themselves as more faithful then other Muslims they use religious scholars in their rank to make finally crafted argument to use religion as a pretext to do violence they exploit people who have little understanding of Islam they recruit them as foot soldiers to fight their politically motivated wars some join they in the name of faith some in the name of land some for a good pay check and some because they are just murderous but this is not sharia.
A lot of damage has been done in the name of religion by people from all faiths by people from all cultures that is true for sharia too yet is remains they way of life 1.8 billion followers of Islam in more than 57 countries does that make it acceptable? who decides? and in which form? Here is what I think all things including religion must evolve with time if some practices are outdated, they must end religious law may not have a place in modern nation states governed by constitution. If the sharia’s interpretation and practices clashed with today’s way of life and social structures then perhaps its time for revision and reflection rather than resentments.
CONCLUSION:
The conclusion of the provided text emphasizes the importance of reflection and revision in addressing the challenges posed by the intersection of Sharia, the Islamic legal and spiritual system, with modern societal values. It encourages an ongoing dialogue to navigate complexities and ensure compatibility with evolving social structures. The text suggests that if certain practices within Sharia are outdated, there is a need for adaptation and evolution. Instead of harbouring resentment, the text advocates for a thoughtful reconsideration of interpretations and practices, especially in areas where there are discrepancies and negative impacts, such as women’s rights. It implies that religious laws, including Sharia, may need to evolve to align with the principles of modern nation-states governed by constitutions. The overarching message is a call for open-minded reflection and potential revisions in the understanding and application of Sharia in contemporary contexts.
REFRENCES:
- This article was written by Faisal Kutty published on: http://ssrn.com/abstract=2457066
- https://www.wionews.com/
- https://youtu.be/Fzk7H6y65LE?si=_OHPsrH-rDv8Su2Q.