Usul Al Fiqa

Islamic legal theory
From IVR encyclopedie

Jump to: navigation, search
by Chibli Mallat
Introducing usul al-fiqh
What theories of law does the Islamic tradition offer? While philosophy tends to be ‘the mother
of sciences’ in the West since Plato put it at this meta-level in the disciplines of the intellect,
intellectual primacy in Islam finds in law its characteristically dominant discipline as the chief
exponent of religion. Within law, the tradition developed a theoretical reflection on legal
categories in a self-contained discipline known as usul al-fiqh. The closest western rendition of
the genre would be jurisprudence, in its widest Anglo-American acceptation as a theory of law.
There is nothing more akin to legal theory in the Islamic tradition than usul. “Although it would
be rash to suppose that usul al-fiqh subsumes everything that may be regarded as Muslim legal
theory in the broadest possible sense of that term, nonetheless there can be no denying that it
constitutes, or came over time to constitute, the mainstream of legal-theoretical thought in
Islam.”[1] The prominence of usul is the more so striking since classical Islam, despite the
prominence of law, never knew a discipline described as ‘philosophy of law’. At best, such field
may just be nascent on the contemporary scene.[2] This is supported in a recent review of relevant
modern writings in the Qum (Iran) seminary by one of its active members,[3] and in a more
detailed historical-legal investigation that could not identify in the available tradition any
coherent discipline which could be considered as ‘philosophy of law’.[4]In contrast, a field
recognizable as ‘philosophy’ is undisputed in the classical works by such household names as
Avicenna and Averroes,[5] through to less known luminaries of the later ‘Iranian period’, most
remarkably Mulla Sadra Shirazi, an exact contemporary of Descartes.[6]
While Islamic philosophy never paid sustained attention to law as subject-matter, the efforts
towards a theory of law were plenty from within the legal tradition of Islam. They cohered in the
established genre of usul al-fiqh, literally roots, or principles, of law. Usul is not philosophy,
since it subject matter is legal, while philosophy is far more encompassing. But it is not
philosophy of law either, whether in the tradition of Plato’sLaws, or Kant’s Rechtslehre, or
Rawls’ Theory of Justice in the modern period, because the categories that are put to use in the
legal derivation are not philosophical categories. Logic, deriving from Aristotle’s translations
into Arabic in the classical period, would be the most recognizable kin field. But even logic has
its problems: in part, the earlier usul texts predate these translations, but even after the high
period of Greek influence on Islamic thought, the organisation or use of the syllogisms
in usul does not correspond to the AristotelianOrganon, or Aristotle’s followers in the field, from
Farabi in the classical age of Islam to Russell or Wittgenstein, or Hintikka’s formulations in the
modern period.
Historically, a founding landmark of the discipline of usul is Muhammad ibn Idris al-
Shafi‘i’s Risala. Shafi‘i, the eponym of one of the four schools in mainstream Sunni Islam, is the
author of both an extensive treatment of positive law known as al-Umm, and of a systematic,
long treatise in usul al-fiqh, which his successive editors through the centuries have considered
as the first book in the discipline.[7]
Ibn Khaldun, an authoritative reference if any, confirms Shafi‘i “as the first who wrote in the
field of usul”.[8]What we find in the Risala is a mixture of reflections on the relationship between
the Qur’an and the Prophetic sayings and deeds as normative texts, interspersed substantive law
questions, and ‘jurisprudence’ in the sense of rules and categories of legal derivation.
Irrespective of chronology,[9] the repetitive fragments of theRisala could hardly overcome their
beginner’s status. Usul al-fiqh, as the discipline jelled into an autonomous genre in Islamic law,
has become over the centuries a large and sophisticated field, and the quintessential locus of a
‘theory of Islamic law’.
How does one make sense of usul as legal theory ? Should the reader be interested in usul as it
stands in the contemporary world, there is no better way to discover the genre than to study its
original texts. [10] One is no longer restricted to the Risala in order to discover the theory of
Islamic law as exposed by the Muslim jurists. With the translation of an introductory book
on usul by Muhammad Baqer as-Sadr – a leading contemporary jurist, who was executed in his
native Iraq in 1980,[11] an excellent tool for the discovery first hand of the theory of Islamic law is
now available.[12]
Sadr’s introductory Lessons in Jurisprudence feature four parts: The first part is a general
introduction to ‘the characterization of jurisprudence’:[13] just as the subject-matter of physics is
‘nature’, and the subject-matter of grammar is ‘words ’, “the subject matter of the discipline of
jurisprudence is the commonly shared arguments in the process of derivation.”[14] This part then
underlines the specificity of usul as a discipline: “Shared elements are studied by jurisprudence
[usul], whereas the elements particular to each individual question are studied by the discipline
of legal understanding [fiqh]”.[15]So, Sadr concludes, “jurisprudence can be defined as the logic
of law, because jurisprudence stands to law just as logic stands to human thought in general.”[16]
In the two following sections of his introduction, Sadr discusses usul and fiqh in terms of the first
being theory and the second practice (or application), emphasizing the relative autonomy of
practice and the complementarity between the two disciplines. The conclusion discusses the
development of the concept ofijtihad in history, its earlier rejection by the Shi‘i jurists and then
its wholesale embrace as legal reasoning.[17] A distinction is then made between injunctive and
declaratory rules, and the five degrees of legal rules as received in the tradition: obligatory,
encouraged, prohibited, discouraged, and permissible.[18]
The second part of the Lessons is a foray in a number of aspects of usul under the general
heading of ‘Studies’.[19] It is divided in two: ‘substantiating arguments’, and ‘procedural
principles’. They have in common the search for the decisive ratio, hujjiyyat al-qat‘, “by which
we mean the resolution of a case which leaves no room for doubt”.[20] The difference between
substance and procedural arguments appears in the definition of each, and in their respective
subdivisions.
‘Substantiating arguments’ are of two types: textual (divine-law) and rational. “1. The first is the
divine-law argument [proper]. By it we mean everything that emanates from the lawgiver which
has signification for the divine-law ruling and that includes the Noble Book and the Sunna. The
latter consists of what an infallible person said or what he did or what he tacitly consented to. 2.
The second division is the rational argument, by which we mean the propositions which reason
grasps and from which it is possible to derive a divine-law ruling, like the rational proposition
which holds that rendering something obligatory requires the rendering of its necessary
preliminary obligatory.”[21]
Textual (‘the divine-law’) treatment is extensive, and weaves in logical and linguistic discussions
in a detailed manner. It includes use of the word, its operation as ‘sign’, the difference between
figurative and literal, syntactic and grammatical considerations, verbal modes, all enmeshed in a
number of contrastive propositions and syllogisms. Sadr then discusses non-verbal forms, which
forms a small part of the sunna relating to the conduct of the Prophet (and for Shi‘a the Twelve
Imams of their tradition) as precedent.[22]
Rational arguments are categories specific to human thought, and operate on a number of
connecting modes. Sadr divides them into six ‘connections’, which he discusses in turn:
connections arising between one ruling and another, between a ruling and its subject, between a
ruling and its dependent object, between a ruling and its necessary preliminaries, connections
within a ruling, and finally, a category which he leaves for later discussion, connections between
a ruling and external things.[23]
The third part of the book is entitled ‘procedural principles’, [24] which the translator suggests in
the glossary could also be rendered as ‘practical’ principles. The leading principles in this part
derive from the example of smoking. In the absence of an injunction about smoking, what should
its legal status be ? There is no straight answer in the chapter, but a list of principles, all
presumably related to ‘procedure’, are adduced to bear on the legal status of the example at hand:
a principle of precaution, which errs on the conservative side, against which a principle of doubt
about whether a rule is mandatory in the absence of a stated prohibition. A third procedural
principle regards ‘non-specific knowledge’, that is a type of knowledge which is too general to
assist in a specific, unknown, case. Under this principle, the ‘legal agent’ – the interpreter - must
err on the side of the secondary principle, which is the priority of precaution. Finally, a practical
principle is a presumption of continuity, which presupposes unity of subject.
The fourth part discusses ‘the conflict of arguments’:[25]
In substantiating principles, the conflict arises from two apparently contradictory statements
coming from an authoritative source, or from a textual argument contradicting a rational
argument, or from two rational arguments. Sadr offers specific responses: in the first case, the
contradiction is only apparent, and context will either force one to yield and be overruled, or to
be restricted to an exception to the overall rule. Secondly, if a textual argument contradicts a
rational argument, the textual argument prevails. Finally, in case of conflict between two rational
arguments, the more convincing would prevail.
In procedural principles, conflict would mainly arise ‘between exemption and the presumption of
continuity.’ Here, “presumption of continuity overrules the argument for exemption”.[26]
Finally, conflict could pit substantive and procedural arguments. In a conflict between these two
main types of arguments, i.e. a subtantiating argument and a procedural one, ‘indication’ of the
substantiating argument makes its adoption presumed over the procedural rule.
In the light of Sadr’s compendium, what sort of ‘theory of law’ does usul stand for ? Usul is a
legal genre which is sui generis: both in terms of form of substance, it creates a coherent field
depending on a special syntax, is own vocabulary, and its own order of reasons. The internal
logic of usul, and the absence of an exact replica in related western disciplines, make it difficult
to place it on the intellectual map of comparative law, indeed of human thought generally. To
clarify usul’s standing as legal theory, planes of investigation can be further pursued from within
the tradition and from without.
Examination within the tradition can be conducted either historically or ‘synthetically’.
Historically, in a brief comparison between Shafi‘i’s Risala and Sadr’s Durus, progress may be
appreciated both in the abstraction of words and categories, and in the markedly more
sophisticated marshalling of arguments. From a reliance on ‘sources’ of law and their status and
arrangement, which appears as the most important systematization of the Risala, to the
abstractions offered in the 20th century by writers like Sadr operating on concepts such as
rational/substantial/procedural rules and the modes of their contradictions, there is qualitative
progress over the same subject-matter, viz. how does one derive a legal rule ?
‘Synthetically’, usul appears as the “most formidable” legal discipline,[27] standing as a genre
next to a large array of identifiable fields within a particularly rich legal tradition in Islam, and in
the Middle East generally, that includes: law as fiqh, the ascertaining of canonical – sacred –
Urtexts (the Qur’an and sunna) and their modes of interpretation, case-law in courts, fatwas and
the art of judges and muftis, the practice of notary-publics, and later Restatements known
as qawa‘ed fiqhiyya. Within this multi-layered tradition of legal genres,usul appears as the
closest to a theory of law.
Appreciation of usul as legal theory can be further enriched by contrasting it with the outside,
western tradition: in my own comparative reading of western and Middle eastern texts, logic
appears as the closest discipline in the classical age, while jurisprudence, in its English
acceptation, would best stand for the discipline of usul in the modern world. This cannot be the
end of the matter, however, for the very fact that as genre,usul is perforce unique. Further mutual
enrichment follows, if legal theoreticians from outside the Islamic tradition read texts like Sadr’s
and reflect on where they would place them within their own order of reasons. For that, the
translation by Mottahedeh of Sadr’s usul offers a remarkable tool. Conversely, Islamic legal
scholars who, like Sadr, try to perpetuate the genre in such places of traditional learning as Cairo
and Najaf, are becoming more attentive to the philosophy of law, jurisprudence and other
theories of law as develop in the West.
Footnotes
[1]
Bernard G. Weiss, “Introduction”, in Weiss ed., Studies in Islamic Legal Theory, Leiden,
2002, xvii.
[2]
See Mallat, “On the philosophy of Islamic law”, originally presented at Lund, August 2003,
forthcoming in Mallat and Tramontini eds., One and a Thousand Years of Arab Societies, Essays
for John Donohue, Beirut 2005.
[3]
See quote to this effect in Abdel Jabbar ar-Rifa‘i ed., Falsafat al-fiqh wa maqased al-
shari‘a (‘philosophy of law [fiqh] and meanings of law [shari‘a], Beirut 2001, 33, and
contributions by the following Iranian scholars under a ‘philosophy of law (fiqh)’ section:
Muhammad Mujtahid Shebestari, Mustafa Malikian, Sadeq Larijani, ‘Abidi Sharudi, Naser
Katuzian (at 39-221), to whom should be added ‘Abdel Karim Sorush. In his overview, at 36 fn
12, the editor puts the ‘birth’ of philosophy of law (fiqh) as project in an interview of Shebestari
published in 1994.
[4]
Mallat, “From Islamic law to Middle Eastern law: a Restatement of the field”, American
Journal of Comparative Law, 2003:4, part one, 699-750, part 2, 2004:1 (arguing that from pre-
Islamic Middle Eastern times through to the modern period the field would benefit immensely
from a treatment of Islamic law in the same way that lawyers treat any other law.)
[5]
Already in Hegel’s Lectures on the History of Philosophy (1817), a section on Arab
philosophy features the most important Arab thinkers – including Farabi (d.966), Avicenna
(d.1064), Averroes (d.1217), and Maimonides (d.1204), mostly as commentators on Aristotle’s
logic, but without offering any “real progress” in philosophy: “Wir koennen von den Arabern
sagen: Ihre Philosophie macht nicht eine eigentuemliche Stufe in der Ausbildung der
Philosophie; sie haben das Prinzip der Philosophie nicht weitergebracht…. Aber nach allem, was
wir von ihnen kennen, haben sie keinen wahrhaften Fortschritt im Prinzip gemacht; sie haben
kein hoeheres Prinzip der sich bewussten Vernunft aufgetstellt.”G.W.F. Hegel, Vorlesungen
ueber die Geschichte der Philosophie ii, Werke, Suhrkamp edition in 20 volumes, Frankfurt 2003
(4th ed.), vol. 19, 517-518.
[6]
Descartes died in 1650, Mulla Sadra in 1640. Sadraddin ash-Shirazi, known as Mulla Sadra, is
the author of a philosophical Summa in 9 large volumes, al-Asfar al-arba‘a (‘the four voyages’).
This philosophy of the later Islamic period has found its way to the international scene mostly
through the works of Henry Corbin, En Islam Iranien, 4 vols, Paris 1971-2 (on Mulla Sadra and
the preceding ishraqi school, see especially vol.iv).
[7]
On the Risala as “the first book in usul al-fiqh,” see the standard Arabic edition by Ahmad
Muhammad Shaker, Cairo or. 1939, n.d. rpt., 13. Shafi‘i died in 820 CE. The structure of his
compendium of law, al-Umm, is carefully examined by Joseph Schacht in his Origins of
Muhammadan Jurisprudence, Oxford 1950.
[8]
Ibn Khaldun (d.1406), al-Muqaddima, Beirut ed. 1978, 455. This hypothesis can be tested by
examining the Risala, which appears in a good English translation by Majid Khadduri, Islamic
Jurisprudence, Baltimore 1961, and, in a popularising chapter within Noel Coulson’s History of
Islamic Law, Edinburgh 1964, 53-61 (featuring Shafi‘i as “master architect”), with the help of a
large literature in Arabic and English since. The standard translation of the Muqaddima in
English was done by Rosenthal, in French by Quatremère then Monteil.
[9]
Wael Hallaq, author of a widely encompassing A History of Islamic Legal Theories: an
Introduction to Sunni usul al-fiqh, Cambridge 1997, questions Shafi‘i’s entitlement to
jurisprudential ‘masterdom’ in the early period, see at 18-19, 30-35.
[10]
Secondary literature in English includes Mohammad Hashem Kamali, Principles of Islamic
Jurisprudence, Malaysia, 1989, rpt Cambridge 1991. Between Hallaq’s History, and
Kamali’s Principles, the English-language reader is capable of appreciating the contours of the
field from two leading commentators’ perspective.
[11]
Muhammad Baqir as-Sadr, Lessons in Islamic Jurisprudence, translated and with an
introduction by Roy Parviz Mottahedeh, Oxford, Oneworld, 2003. Mottahedeh is Professor of
Islamic Studies at Harvard. On Sadr, see my The Renewal of Islamic Law, Muhammad Baqer as-
Sadr, Najaf, and the Shi‘i International, Cambridge 1993.
[12]
Sadr’s Durus fi ‘ilm al-usul were published in three parts and four volumes between 1978
and 1980. The three parts, designed as cycles (halaqa) for the intermediate stage of studies in the
Najaf colleges, offer many similarities in their subject-matter, with part 2 then part 3 (in two
volumes) repeating, with more details and sometimes significant rearrangements, the treatment
of part one. Lack of consistency and elements of repetition can be ascribed to the difficult times
Sadr was confronting in Iraq during that period, and to the nature of the work: it is common for
students to collect the lectures of renowned scholars and publish them, with their permission
when they are alive, but not necessarily with careful oversight. The Lessons are consciously
didactic, and the reader of volume-cycle 2 would be expected to consult the first cycle as he
plods through a given theme. This collection of Lessons is one in a large number of lectures
on usul in Sadr’s prolific career, many of which may never come to light. The first part (and
volume) appears in Mottahedeh’s translation with an introduction, and a full glossary doubling
up as a small dictionary of usul terms. It may not be a coincidence that possibly the foremost
living connaisseur of Islamic literature in the West has chosen to translate the hardest technical
writings of one of the most creative Muslim polymaths in the 20th century. Another English
version of Sadr’s Durus was published almost at the same time as Principles of Islamic
Jurisprudence According to Shi‘i Law, London, Islamic College for Advanced Studies Press,
2003, translated by Arif Abdul Hussein, edited by Hamid Algar and Sa‘eed Bahmanpour. While
competent, and sometimes less intricate than Mottahedeh’s, it lacks the elegance known to
Mottahedeh’s style. We shall use in the following notes M. for Mottahedeh’s translation, and S.
for Sadr’s original text, followed by the page number.
[13]
M. 35-46, S. 35-52.
[14]
M. 40, S. 42-43.
[15]
M. 39, S. 41.
[16]
My translation of S. 44. M. 41 reads: “On this basis it is correct to call the discipline of
jurisprudence ‘the logic of the discipline of legal understanding’, because jurisprudence stands to
the discipline of legal understanding just as logic stands to human thought in general.”
[17]
M. 46-53, S. 53-64. For early usul for the Shi ‘is, see R. Brunschvig, “Les usul al-
fiqh imamites à leur stade ancient”, in Le Shi‘isme Imamite, Paris 1970, 201-14. In an earlier
introductory book to the discipline, al-Ma‘alem al-jadida fil-usul (‘the new configuration
of usul’) Beirut 1964, Sadr presents a remarkable historical compendium on the main scholars
of usul in the Shi‘i tradition at pp.46-89. This exposition is translated in part by Arif Abdul
Hussein in Principles of Islamic Jurisprudence, at 25-38. The Ma‘alem offers much that is taken
up later in the Durus’ first volume. In an introduction to the latter book (not appearing in either
translation) Sadr explains that the two works are indeed similar, but that he tried in
the Ma‘alem to explain the field to a self-teaching student, whereas he anticipates that
the Lessons would be acquired with the help of a teacher.Durus, i, 28. In terms of Sadr’s
evolving thought, a close comparison between the two books would yield alluring results. In both
cases, Sadr was careful to calibrate the level of difficulty with the student reader in mind, at the
intermediate phase of the curriculum (known as sutuh, literally surfaces). Published works by
Sadr for students at the last stage (bahth al-kharej, literally graduate or outside research) include,
during his lifetime, Ta‘arud al-adilla al-shar‘iyya (edited by Mahmud al-Hashimi, Beirut
1977), Buhuth fi sharh al-‘urwa al-wuthqa, Najaf, 3 vols., 1971; posthumously Mabaheth al-
usul (edited by Kazim al-Ha’iri, Qum 1987).
[18]
M. 54-57, S. 65-69.
[19]
M. 57-136, S. 71-194. There is a difference here in Sadr’s edition which I have used and that
which Mottahedeh translated. The heading Buhuth (‘studies’) does not appear in M.’s translation,
which features a second and third part without Sadr’s overall heading. M.’s second part
(‘substantiating arguments’) encompasses the three final sections which we presented above
under the introductory part one. The text does not otherwise vary.
[20]
My translation of S. 75, M. 58: “This [common] element is the probativity of assurance. We
mean by assurance the disclosure of a certain affair to a degree which doubt does not degrade.”
Because the subdivision of substantive arguments includes the most important material available
to the jurist, this part is the longest in the book.
[21]
M. 63-64, S. 82-83. Because the subdivision of substantive arguments includes the most
important material available to the jurist, this part is the longest in the book. The citation chosen
is typical of Sadr’s style throughout.
[22]
M. 64-102, S. 84-143.
[23]
M. 103-118, S. 144-168.
[24]
M. 119-136, S.169-194.
[25]
M. 137-144, S. 195-205.
[26]
M. 143, S. 203.
[27]
Ibn Khaldun, Muqaddima, 452.
Retrieved from "http://ivr-enc.info/index.php?title=Islamic_legal_theory"
Categories: Chibli Mallat | Lemmas | Islam
There is a tremendous amount of literature on the nature of the state and the political system.
Further, translations of some works of the earlier jurists, like al-Mawardi, are available. We feel,
however, that there are certain fundamental questions that have not been answered convincingly
as yet. The first issue is that of the nature of the state in Islamic law. What we mean here is
that as compared to the personality of Khalifah and his personal responsibility and power, we are
dealing today with a legal entity called the state, which has a personality and rights of its own. If
it represents the entire community, then is each communal obligation (fard kifayah) transferred
to the state and becomes a duty of the state. If the contract of bayàh was a contract of agency
(wakalah) by which each citizen transferred or delegated his authority to the Khalifah to manage
the affairs of the community, then, what is the nature of the contract today when the state steps
in. And, not only the state, what is the nature of the contract when the President, Prime Minister,
or Monarch, if you like, step in with fictitious legal (official) personalities of their own and the
accompanying immunities.
Another issue deals with the distinction between the Khalifah as the all powerful leader
delegating authority to all the sultans in order to validate their rule and between the existence of
multiple states and no Khalifah. What is the fundamental norm (grundnorm) in all these
situations, a norm that validates all laws. Such a norm should stay in place even when a military
commander takes over power and abrogates the constitution.
There are numerous other issues, and we are just quoting these as examples. The prolem of legal
personality has been analysed under the discussion of corporations in the Islamic law of business
organisation. The same arguments can be applied to the personality of the state.
The law of procedure in Islam, as in other legal systems, depends on the type of rights involved,
that is, the procedure and standards of evidence change when the right of God is involved as
comapred to the rights of the individuals. The procedure may be compeltely different when the
right of the state is affected. While studying these topics, it is important to note that the earlier
jurists were usually discussing the procedure that was invoked in the first two types of rights.
The determination of the procedure when the right of the state was involved was left to the state.
Please see Outlines of Islamic Jurisprudence for the time being.
The Institute plans to provide translations from the works of the classical jurists for the
following topics:
1. The qadi and his qualifications
2. The office of the muhtasib and the inspector of the markets
3. Civil procedure
4. Evidence
5. Criminal procedure
Islamic criminal law has been divided into the following areas:
Sub-title 1: General Principles of Criminal Law
1. General Principles of Criminal Law (Islamic and Western) by Imran A. Nyazee
(Download File:.zip file 0.8MB)
Sub-title 2: Hudud Laws
Sub-title 3: Qisas and Diyat Law
Sub-title 4: Ta`zir and Siyasah Penalties
The Advanced Legal Studies Institute takes the opportunity, through this Website, to announce
two series on Islamic law and related issues. The Institute expects this to be a collaborative effort
of all those persons who are interested in promoting knowledge about Islamic law. Anyone who
feels that he or she has something to contribute may participate in these series. The Institute,
however, reserves the right to decide what material will be placed on this site. Further, as far as
the electronic form of the material is concerned, these series are not a commercial venture.
Publication for sale in other than electronic form will depend on the agreement between the
author and the Institute. The two series are as follows:
Islamic Classical Legal Texts

The works of Muslim jurists are a treasure waiting to be discovered. These works are not only the
heritage of the Muslims, but of all those who have an interest in Islamic law. Those who do not
read Arabic are deprived of its benefits. The Institute is of the view that every person has a right to
judge for himself what the correct view is on a particular issue. This is not possible, unless the
original texts are made available to every interested reader. The translation of the texts will also
provide an opportunity to the reader to match wits with those early jurists, who were the leading
thinkers of their times.
Translating these texts is not an easy matter. In fact, it can be quite painful at times. Accordingly,
no restriction is placed on the type of text being translated as long as it is a text of some
important Muslim jurist. As to who is an important jurist is left to the discretion of the translator. A
bibliography of the original sources of Islamic law, available for downloading, may be of some
help in selecting the original text. Further, the translation may be of a whole book, or a particular
chapter or topic in a book or even an excerpt on an important issue.
The following texts are being mentioned by way of wishful thinking. Some of these texts are so
huge that an individual cannot even dream of undertaking their translation all by himself; only a
team of translators can accomplish the task.
1. Kitab al-Umm by Imam al-Shafiì, the founder of the Shafiì school.
2. Kitab al-Asl by Imam Muhammad al-Shaybani
3. Ziyadat by Imam Muhammad al-Shaybani
4. Al-Mudawwanah al-Kubra by Sahnun based on the verdicts of Ibn al-Qasim as transmitted
from Imam Malik.
5. Al-Mabsut by al-Sarakhsi (Hanafi Fiqh)
6. Al-Mughni by Ibn Qudamah (Hanbali Fiqh)
7. Al-Hidayah by al-Marghinani (translated in part by Hamilton, but the Institute feels that a
fresh translation is needed).
8. Al-Muhadhdhab by al-Shirazi (Shafiì Fiqh).
The Institute has made arrangements for the translation of Bada'i` al-Sanaì by al-Kasani. It will be
translated in parts. The translations will be placed on this site as soon as they are made available.
Among the books on Usul al-Fiqh, one would wish that the following were translated:
1. Al-Mustasfa by Imam al-Ghazali.
2. Kitab al-Usul by al-Sarakhsi.
3. Kitab al-Usul by al-Bazdawi.
4. Al-Mahsul by al-Razi.
5. Al-Tawdih by Sadr al-Shariàh and several other outstanding works.
Islamic Law Monograph Series
The needs of scholars, researchers and professionals are becoming increasingly specialised.
There is an increasing need for monographs that provide information about a single topic. For
example a lawyer dealing with a case of sariqah (theft) being tried in the courts, in countries
where Islamic law is applied, may not have the time to sift through different books to extract the
information he needs. Likewise, a banker who needs information about the contract of salam or
istisna` will face a similar obstacle. It is, therefore, imperative that short monographs, not
exceeding 100 or 150 printed pages, be published to meet the needs of the professionals, the
researchers and those of the general reader. The contents of each monograph should preferably
have the following structure with some variation depending on the nature of the topic:
1. The meaning and the nature of the contract or act being discussed and its place in the
wider scheme of the law or other disciplines.
2. The sources in the shariàh that govern the act or contract.
3. The issues pertaining to the subject that were deemed important by the earlier scholars
and those that are relevant for modern times.
4. The legal reasoning underlying each important issue. This would mean discussing each
important issue and highlighting the underlying reasoning.
5. The modern applications of the legal concepts discussed above.
6. The problems that have arisen or may arise as a result of such modern application. If there
is case law on the subject, the discussion should preferably take such case law into
account.
7. A list of readings/bibliography preferably linked to the issues discussed above.
8. Glossary of terms used.
9. Index. This index may be included in a cumulative index once the series grows in size.
It is obvious that each topic cannot be discussed within the above framework. For
example, the subject of human rights may require a somewhat different format. The format
proposed above is flexible enough to accommodate such variation.
AREAS OF RESEARCH
The monographs will deal with the entire gamut of Islamic law. Research will focus on
those areas of the law or related disciplines that have relevance for modern times and
modern applications. It is estimated that a minimum of about 20 to 25 monographs will be
needed to cover all the areas. There is, however, no restriction in terms of numbers and
more than one monograph may be published on one topic.
The individual topics and titles are left to the judgment of the writer. The topics will be
identified and refined as the project is implemented and potential contributors start
thinking about the projects. In the meantime, the following major areas are listed below:
1. International law, human rights and constitutional law. To give an example, one
monograph could deal with the source of human rights in Western law as well as in
Islamic law.
2. Criminal law, torts and the criminal justice system. The need for books on these topics
is greater in countries that are pursuing programs of Islamization of laws, but this is also
the area that faces the maximum amount of criticism. The writing of good monographs in
this area is, therefore, of crucial significance.
3. Property, commercial transactions and business law. This is a huge area as the issues
of Islamic banking also fall under this heading. A good place to start would be to choose
some contract that is being utilised by Islamic banks and to see how far the banks are
adhering to the sharì norms.
4. Personal law and domestic relations. The Institute believes that this is a very fertile area
as all the issues pertaining to the rights of women and the rights of the child are related to
this area. As an example we may mention the changes being made in the laws of Muslim
countries in accordance with the Convention on the Rights of the Child (CRC). Muslim
scholars should examine these changes and support every good change, but after they
have justified these in the light of Islamic law.
5. Legal theory, sources of law and the schools of Islamic law. The purpose here is to
channelise the thought of centuries in ways that can convert this discipline into an
efficient methodology for serving the needs of the modern interpreter, whoever he may be,
but especially the needs of the modern legislator, judge and lawyer.
© Advanced Legal Studies Institute
E-mail Address
Capital Punishment in Islam

By Huda, About.com Guide
See More About:

• capital punishment in islam
• islamic law
• terrorism
• death penalty
• rape in islam
Sponsored Links
How to Convert to IslamHow to convert and become a Muslim with Live Help through
chatwww.IslamReligion.com
Who Runs Pakistan?Politicians, Army, Terrorists? Asks Sultan Shahinwww.NewAgeIslam.com/
Jesus Died Natural DeathQuranic proofs of Jesus' death and debunking of some myths about
himkaluss.blogspot.com
Islam Ads
Islam Nation of Islam All About Islam Islam Online Dating Islam Chat com
"...If anyone kills a person - unless it be for murder or for spreading mischief in the land - it would be
as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people"
(Qur'an 5:32).
Life is sacred, according to Islam and most other world faiths. But how can one hold life sacred, yet
still support capital punishment? The Qur'an answers, "...Take not life, which God has made sacred,
except by way of justice and law. Thus does He command you, so that you may learn wisdom"
(6:151).
The key point is that one may take life only "by way of justice and law." In Islam, therefore, the death
penalty can be applied by a court as punishment for the most serious of crimes. Ultimately, one's
eternal punishment is in God's hands, but there is a place for punishment in this life as well. The spirit
of the Islamic penal code is to save lives, promote justice, and prevent corruption and tyranny.
Islamic philosophy holds that a harsh punishment serves as a deterrent to serious crimes that harm
individual victims, or threaten to destabilize the foundation of society. According to Islamic law (in the
first verse quoted above), the following two crimes can be punishable by death:
• Intentional murder
• Fasad fil-ardh ("spreading mischief in the land")
Intentional Murder
The Qur'an legislates the death penalty for murder, although forgiveness and compassion are strongly
encouraged. The murder victim's family is given a choice to either insist on the death penalty, or to
pardon the perpetrator and accept monetary compensation for their loss (2:178).
Fasaad fi al-ardh
The second crime for which capital punishment can be applied is a bit more open to interpretation.
"Spreading mischief in the land" can mean many different things, but is generally interpreted to mean
those crimes that affect the community as a whole, and destabilize the society. Crimes that have
fallen under this description have included:
• Treason / Apostacy (when one leaves the faith and joins the enemy in fighting against the Muslim
community)
• Terrorism
• Land, sea, or air piracy
• Rape
• Adultery
• Homosexual behavior
Actual methods of capital punishment vary from place to place. In some Muslim countries, methods
have included beheading, hanging, stoning, and firing squad. Executions are held publicly, to serve as
warnings to would-be criminals.
It is important to note that there is no place for vigilantism in Islam -- one must be properly convicted
in an Islamic court of law before the punishment can be meted out. The severity of the punishment
requires that very strict evidence standards must be met before a conviction is found. The court also
has flexibility to order less than the ultimate punishment (for example, imposing fines or prison
sentences), on a case-by-case basis.
Suggested Reading
• Islamic Law / Shari'ah
• The Qur'an
Related Articles
• History of Capital Punishment in Canada - Abolition of Capital Punishment i...
• Book Review - Debating the Death Penalty: Should America Have Capital Punis...
• Christianity and the Death Penalty - How Does Christianity Look at the Deat...
• Review - Who Owns Death? Capital Punishment, the American Conscience, and t...
• Death Penalty - Is the Death Penalty the Only Justice for Killers?
Huda
Islam Guide
• Sign up for my Newsletter

• My Blog
• My Forum
The title
Sponsored Results
New: CW Regulatory Watch

Get the latest global legislative & regulatory developments. Free trial
www.chemweek.com/regulatorytrial
Jihadism - Kufr or Islam?
Religion of the Jahiliya? Asks Sultan Shahin
www.NewAgeIslam.com/
Islamic Finance
Top 500 Institutions: The Banker offers exclusive rankings
top500islamic.thebanker.com
Law Jobs
200000+ Jobs, Over 25000 Recruiters Great Career Prospects. Log On Now!
Naukri.com
Find It With Peeplo

All About It The World and Much More!
Peeplo.com/Top_Results
Sharia - Simple English Wikipedia, the free

encyclopedia
1 Sections of Sharia law; 2 Laws and practices under Sharia ... Islamic law does not present a
comprehensive list of pure foods and drinks. ...
en.wikipedia.org/wiki/simple:Shari
a
Sharia - Wikipedia, the free encyclopedia

Sharia ( Šarīʿa; , "way" or "path") is the sacred law of Islam. Muslims believe Sharia is
derived from two primary Sources of Islamic law, namely the divine revelations set forth
in the Qu...
Sourc en.wikipedia.org/wiki/Sharia · See full article »
e
American Thinker: Top ten reasons why sharia
is bad for all
Traditional Muslims who understand the Quran and the hadith believe that sharia (Islamic law)
expresses the highest and best goals for all societies. ... But is Islam just in its laws that
Muhammad himself practiced and invented? ... It has a long list of different translations of Sura
4:34, in order to resolve confusion over...
www.americanthinker.com/2005/08/top_ten_reasons_why_sha..
.
www.americanthinker.com/2005/08/top_ten_reasons_why_sharia_is.ht
ml
Strict Sharia Laws in

Saudi Arabia
Saudi Arabia has a strict Sharia Law that adheres to Islamic beliefs and teachings. Some TV
shows have become so Westernized that the moral police is working overtime. A controversial
Arab show can ... List the Email Addresses or Orble Tags of the people you would like to be
notified about this private comment thread.
www.mediapiranha.com/strict-sharia-laws-in-saudi-
arabia... www.mediapiranha.com/strict-sharia-laws-in-saudi-
arabia/
Sharia Laws will be great for America :: Reader

comments at Daniel
Mohammed has already given the list of the excellent benefits. You will ask, why are then all
the muslim countries so corrupted , so poor and so miserable and why are all the good muslims
like bro. Mohammed run away from those countries and ... Mark my comment as a response to
Sharia Laws will be great for America by Ahmed...
www.danielpipes.org/comments/23969
Between the Dream of America and the Islamic-

Sharia-Laws-Arab
Mark my comment as a response to Between the Dream of America and the Islamic-Sharia-
Laws-Arab-countries by Norma Fares ... Home Articles Blog Reviews Spoken Books Other
Languages Biographical Middle East Forum About this site Mailing List...
1
Sharia
Laws
Sharia industry has been built with strong fortifications to the point that many a Muslims are
caused into believing that it is divine. Justice is one of the core values of Islam and Sharia
should be looked from ... A charter was formulated which sought to regulate relations between
different communities, laws were enacted,
sharialaws.blogspot.com
/ sharialaws.blogspot.com/
Pakistan Votes To Amend Strict Sharia Laws On

Rape | Care2 Share
People > Care2 Share > Pam's Sharebook > Pakistan Votes To Amend Strict Sharia Laws On
Rape ... Until now rape victims had to have four male witnesses to the crime - if not they faced
prosecution for adultery. The new bill allows prosecutions under secular rather than religious
law. ... Utah’s Immigrant Hit List...
www.care2.com/c2c/share/detail/222786
Oklahoma to Pass Laws Prohibiting Islamic Sharia

Laws to Apply - ABC
In such cases, judges might look to laws or rulings in other jurisdictions for guidance. The
proposed amendment would block judges in Oklahoma courts from drawing on sharia, or the
laws of other nations, in such decisions.
abcnews.go.com/US/Media/oklahoma-pass-laws-prohibiting-...
abcnews.go.com/US/Media/oklahoma-pass-laws-prohibiting-islamic-
sharia-laws-apply/story?id=10908521

Laws to Apply - ABC
Oklahoma legislative passes law making it illegal for judges to rely on Islamic sharia laws in
deciding cases. It is expected to be approved by the voters in November. ... Islamic Sharia Law
to Be Banned in, ah, Oklahoma...
sharia-laws-apply/story?id=10908521&page=2
The title
Sponsored Results

Islamic Finance
Law Jobs
Naukri.com
Find It With Peeplo


encyclopedia
a

in the Qu...
e

is bad for all
.
ml

Saudi Arabia
arabia/

comments at Daniel

Sharia-Laws-Arab
1
Sharia
Laws

Rape | Care2 Share

Laws to Apply - ABC

Laws to Apply - ABC
The title
Sponsored Results

Islamic Finance
Law Jobs
Naukri.com
Find It With Peeplo

encyclopedia
a

in the Qu...
e

is bad for all
.
ml

Saudi Arabia
arabia/

comments at Daniel

Sharia-Laws-Arab
1
Sharia
Laws

Rape | Care2 Share

Laws to Apply - ABC

Laws to Apply - ABC
School(s) of Fiqh Hanafi majority, sizeable Shafi�i, Ja�fari and Isma�ili

minorities; other than Muslims, Sikh, Jain, Buddhist, Zoroastrian,
Christian and Jewish minorities
Constitutional Constitution adopted 26th Nov. 1949, amended many times. The
Status of Islam(ic) preamble affirms the secularity of the State. Article 26 guarantees
Law freedom to manage religious affairs for every recognised
religious denomination or sect. The difficulty in reconciling the
constitutional protection of the rights of religious minorities and
the Directive Provision of Article 44 has meant that legal
uniformity is far from being achieved.
Court System Muslim personal law applied by regular court system. Four levels
of courts: civil courts, district courts in administrative
subdivisions of each state, State High Courts in each of the 18
states and the Supreme Court. Courts of first instance in personal
status cases are Family Courts, organised under Family Courts
Act 1984. These Courts have same jurisdiction as any district or
subordinate civil court, thus also have some criminal jurisdiction
with relation to maintenance orders.
Relevant Bihar & West Bengal Registration of Muhammedan Marriages

Legislation Acts 1876
Guardians and Wards Act 1890
Child Marriage Restraint Act 1929
Muslim Personal Law (Shari�at) Application Act 1937
Dissolution of Muslim Marriages Act 1939
Special Marriage Act 1954
Family Courts Act 1984
Muslim Women (Protection of Rights on Divorce) Act 1986
Notable Features Marriage Age: 21 for males and 18 for females; penal sanctions
for contracting under-age marriages, though such unions remain
valid
Marriage Guardianship: governed by classical law
Marriage Registration: registration is voluntary; other evidence
may be supplied in order to prove the existence of an
unregistered marriage
Polygamy: governed by classical law, however Indian Criminal
Procedure Code provides that a woman refusing to live with her
husband on just grounds is still entitled to maintenance, and just
grounds expressly include the husband�s contracting of a
polygamous marriage; in Itwari v. Asghari (AIR 1960 All 684)
onus was put on husband to prove that his subsequent marriage
did not constitute insult or cruelty to first wife, and court
shouldn�t enforce restitution of conjugal rights under such
circumstances
Obedience/Maintenance: governed by classical law
Talaq: governed by classical law
Judicial Divorce: grounds on which women may seek divorce
include: desertion for four years, failure to maintain for two
years, husband�s imprisonment for seven years, husband�s
failure to perform marital obligations for three years, husband�s
continued impotence from the time of the marriage, husband�s
insanity for two years or his serious illness, wife�s exercise of
her option of puberty if she was contracted into marriage by any
guardian before age of 15 and repudiates the marriage before the
age of 18 (as long as the marriage was not consummated),
husband�s cruelty (including physical or other mistreatment,
unequal treatment of co-wives), and any other ground recognised
as valid for the dissolution of marriage under Muslim law
Post-Divorce Maintenance/Financial Arrangements: came
under sections 125-128 of Criminal Procedure Code which
provides that dependants (including divorc�es) unable to
support themselves are entitled to maintenance; after 1986
Muslim Women (Protection of Rights on Divorce) Act, Muslims
do not necessarily come under the ambit of the Criminal
Procedure Code (unless they choose to be governed by it), rather,
under new Act, obligation of Muslim husband to provide his
former wife with "reasonable and fair provision and maintenance
to be made and paid to her within the �idda period by her
former husband" is affirmed; in Muhammad Ahmad Khan v.
Shah Bano (AIR 1985 SC 945) court held there is no conflict
between classical Hanafi requirement of maintaining divorced
wife during �idda period, and obligation of maintaining former
wife unable to support herself so long as she remains a divorc�e
(status terminated by remarriage or death); ruling met with much
agitation by certain Muslim groups arguing that it constituted
undue interference in Islamic personal status laws; led to passage
of Muslim Women (Protection of Rights on Divorce Act) 1986;
in Ali v. Sufaira (1988 (2) KLT) Kerala High Court rejected a
narrow interpretation of 1986 legislation that would confine
former husband�s maintenance obligations to his ex-wife�s
�idda period; ruling has since been confirmed by large number
of judgements
Child Custody: general rule is that divorc�e is entitled to
custody of children until age of 7 for males (classical Hanafi
position) and puberty for females, subject to classical conditions,
though there is some flexibility as ward�s best interests are
considered paramount under terms of Guardians and Wards Act
1890
Succession: governed by classical law although customary law
may predominate under certain circumstances
Law/Case All India Reporter, Indian Law Reports, Supreme Court Reports,
Reporting System and state law reports (e.g., Kerala Law Times)
International ICCPR & ICESCR � accession 1979 with interpretative

Conventions (with declarations regarding common Art. 1, Arts. 9 & 13 of ICCPR,
Relevant and Arts. 4, 8 & 7(c) of ICESCR
Reservations) &
CEDAW � signature 1980, ratification 1993 with declarations
Reports to Treaty
relating to Arts. 5(a), 16(1) & 16(2) and reservation to Art. 29(1)
Governing Bodies
CRC � accession 1992 with declaration relating to Art. 32,
especially 32(2)(a)
Legal History:
The Indian legal system is based in part on the English common law system. With respect to
Muslim personal law as applied in India, the sources of law are Hanafi fiqh along with some
resort to other schools, legislation, precedent, certain juridical texts (both classical and modern)
that are considered authoritative, and custom.
During the British Raj, the colonial courts were directed to apply "indigenous legal
norms" in matters relating to family law and religion, with "native law officers" advising the
courts on the determination of those norms. A number of Hanafi sources (notably al-Hidaya and
the Fatawa Alamgiri) were translated into English. The advisory positions of legal experts on
Hindu and Muslim law were abolished in 1864. Legal commentators on the development of the
indigenous system of "Anglo-Muhammadan" law (now more commonly referred to as Indo-
Muslim law) attach varying degrees of significance to the subsequently authoritative position of
these works (and the quality of the translations), the absence of judicial expertise in Muslim law,
the introduction of principles of English law and procedure through judges trained in the English
legal tradition and through interpretation of the residual formula of �justice and right� or
�justice, equity and good conscience� to imply mainly English law, and to the position taken
on customary law.
The status of the personal laws of minority communities, and the plurality of religious
laws in general, is much debated in India. Article 44 of the Constitution legislates a commitment
to the gradual establishment of legal uniformity in India, the aim being that the state "shall
endeavour to secure for the citizens a uniform civil code throughout the territory of India." This
directive is considered a threat by elements of religious minority communities, who continue to
be governed by their own personal laws in family matters, as applied within the superstructure of
the Indian legal system.
Schools of Fiqh: The predominant madhhab is the Hanafi, with sizeable Shafi�i, Ja�fari and
Isma�ili minorities. India�s minority religious communities also include Sikhs, Jains,
Buddhists, Christians and Jews.
Constitutional Status of Islam(ic Law): The Indian Constitution was adopted on 26th
November 1949 and has been amended many times. The preamble of the Constitution affirms
that India is a "sovereign socialist secular democratic republic". India�s secularity is framed in
terms of neither favouring nor officially adopting any particular religion, and Article 26
guarantees the freedom to manage religious affairs (subject to constraints imposed by the
requirements of public order, morality and health) for every recognised religious denomination
or sect. The aforementioned Article 44 of the Constitution contains the Directive Provision
stating that Indian legislators shall aim to establish a uniform civil code throughout India. For the
time-being, religious communities continue to be governed by their own personal laws (apart
from Muslims, this applies to Christians, Zoroastrians, Jews and Hindus, as well as Buddhists
and Sikhs who, for legal purposes, are classified as Hindus). Although the option of civil
marriage exists, it is not often the only regime under which Indians marry. The difficulty of
reconciling the secularity of the Republic and the objective of establishing legal uniformity with
the protection of minority rights (also enshrined in the Constitution) has meant that, almost fifty
years since the adoption of the Constitution, the goal of the directive principle in Article 44 is
still far from being realised.
Court System: Muslim personal law is applied by the regular court system. As the majority of
Muslims are Hanafi, courts presume that litigants are Hanafi unless the contrary is established.
There are four levels of courts in the judiciary. The first are civil courts with jurisdiction over
arbitration, marriage and divorce, guardianship, probate, etc. The next level of courts is
established in the subdivisions of each state, at the district level. Each district comes under the
jurisdiction of a principal district civil court presided over by a district judge. There are State
High Courts in each of the 18 states of the federation. The Supreme Court is constituted by one
Chief Justice and not more than 17 judges.
The courts of first instance for personal status are generally the Family Courts, organised
under the Family Courts Act of 1984. The Family Courts are deemed to be the equivalent of any
district or subordinate civil court. Their jurisdiction is enumerated in the Act and covers suits for
decrees of nullity, restitution of conjugal rights, judicial separation or dissolution, validity of
marriage, matrimonial property, orders or injunctions arising out of the circumstances of
marriage, legitimacy, maintenance, guardianship, custody, and access to minors. These courts
have some criminal jurisdiction in terms of maintenance orders. Suits in these courts may be held
in camera if the Family Court so desires or at the request of the parties to the case.
Notable Features:* With the exception of some enactments, most of the personal law applicable
to Indian Muslims is uncodified and administered by state courts on the basis of Indo-Muslim
judicial precedents. With one exception, the legislation regulating Islamic family law dates from
the period of British colonial rule.
The Muslim Personal Law (Shari�at) Application Act 1937 directs the application of
Muslim Personal Law to Muslims in a number of different areas mainly related to family law.
The Act also directs the application of Muslim personal law in matters relating to intestate
succession among Muslims. On the matter of Islamic inheritance law, as the Qur�an provides a
systematic scheme for intestate succession, there has been no particular legislation in that area.
The courts generally apply the classical rules relating to intestate succession.
The Child Marriage Restraint Act 1929 introduced under the British provided penal
sanctions for contracting marriages below the specified minimum age, originally established at
18 and 15 years. As the Act currently stands in India (amended by Act 2 of 1978), the minimum
marriage age is 21 for men and 18 for women. However, as registration is not compulsory in
India, and as the Act does not instruct the dissolution of under-age marriages, such unions are not
rendered invalid.
The Registration of Muhammedan Marriages and Divorces Act 1876 is still in operation
in Bihar and West Bengal. Other states of the federation also have similar Acts, and there are
facilities for voluntary registration. However, registration is not a requirement in India. The
option of registering a marriage under the Special Marriage Act 1954 (under which all inter-
religious marriages must be registered) also exists, in which case a different set of secular
marriage and divorce laws would apply; it does not, however, appear to be very common to do
so in practice. Registration may prove useful if recourse is had to the courts, but because it is not
compulsory, other evidence may be used to prove the existence of an unregistered marriage.
Upon signature to the CEDAW, India submitted a declaration affirming the government�s
commitment to the principle of obligatory registration of marriage, but stating that, for the
present, the diversity and size of India�s population make strict adherence to this principle
impractical.
With regard to polygamy, the Criminal Procedure Code establishes that a woman who
refuses to live with her husband on just grounds will still be entitled to maintenance and those
just grounds, as defined in the Code, include the contracting of a polygamous marriage by the
husband, even if the personal law applicable to the parties permits polygamy. This proviso only
actually applies to Muslims as polygamy has been abolished for all other communities. In Itwari
v. Asghari (AIR 1960 All 684), a suit for the restitution of conjugal rights by a Muslim husband
against his first wife, the Allahabad Court stated that the onus was on the husband to prove that
his second marriage did not constitute any insult or cruelty to the first wife. Although the Muslim
husband has the right to contract a polygamous marriage, the Court held that it does not
necessarily follow that the first wife should be forced to live with him under threat of severe
penalties after the husband has taken a second wife. Even in the absence of proof of cruelty, the
Court would not pass a decree for restitution of conjugal rights if it appeared that it would be
unjust and inequitable to compel her to return to her husband under the circumstances of the
case.
The Dissolution of Muslim Marriages Act 1939 introduced changes to the extremely
restricted Hanafi rules on judicial divorce at the petition of the wife by the adoption and
adaptation of certain Maliki principles. The nine grounds upon which a woman is entitled to
obtain a decree of dissolution of her marriage under the Act are as follows: if the husband�s
whereabouts have not been known for four years; if the husband neglects to maintain the wife for
two years; if the husband has been sentenced to seven or more years� imprisonment; if the
husband has failed to perform his marital obligations for three years; if the husband was impotent
at the time of marriage and continues to be so; if the husband has been insane for a period of two
years or suffers from a serious illness harmful to the wife; if the wife was contracted into
marriage by her father or other guardian before the age of 15 and repudiates the marriage before
she becomes 18 (provided the marriage has not been consummated); if the husband treats her
with cruelty (including physical or other ill-treatment or unequal treatment of co-wives); and any
other ground which is recognised as valid for the dissolution of marriage under Muslim law. On
the other hand, apostasy by the Muslim wife, including conversion to another religion, does not
in and of itself dissolve her marriage. The Act expressly extends the option of puberty to women
who were contracted into marriage as minors by their fathers or paternal grandfathers,
broadening the classical Hanafi rules. There has, however, been no substantial reform of the
classical law relating to talaq. The Muslim husband retains the right to repudiate his wife extra-
judicially, and from the available sources it appears that the most common form of divorce is the
triple talaq. The stance of the pre- and post-independence courts has generally been to accept
extra-judicial repudiation as "good in law, bad in theology". A major issue of concern is the
determination of the time from which maintenance becomes due in cases where the talaq has not
been communicated to the wife, but the validity of such repudiations has not been called into
serious question. Pearl and Menski also note that the scarcity of case law reflects the fact that, in
actual practice, the exercise of talaq doesn�t often involve the courts.
With regard to maintenance upon divorce, classical Hanafi law has been modified in
India by the Muslim Women (Protection of Rights on Divorce) Act 1986, passed following
fierce protest by sectors of the Muslim community that viewed the Supreme Court�s ruling in
the Shah Bano case as a gross interference in matters of Muslim personal status. In Mohammad
Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), the Supreme Court ruled that there was
no conflict between classical Hanafi law, which only specifies the obligation to maintain a wife
during her �idda period, and the requirement to support a former wife unable to maintain
herself established by state legislation. During the aftermath of the controversial judgement, the
Congress government passed the Muslim Women (Protection of Rights on Divorce) Act. The
Act entitles the divorced Muslim woman to "a reasonable and fair provision and maintenance to
be made and paid to her within the �idda period by her former husband." Although the Act
itself provoked differing reactions as to what its effect would be, court practice allows the
Muslim divorc�e to appeal to the courts if her former husband has not provided her with a
reasonable sum for maintenance during her �idda period. As in classical law, the �idda period
is defined as three menstrual cycles after the divorce; three lunar months if the wife is not subject
to menstruation; or until delivery of the child or termination of pregnancy if the woman is
enceinte. The Act also stipulates that the divorced wife is entitled to any outstanding dower, any
property given her before or during marriage, and maintenance for children in her custody born
before or after the finalisation of the divorce. There appears to be some modification to classical
Hanafi law in the definition of a divorc�e entitled to claim such support, as the Act specifies
that its application pertains to marriages conducted according to Muslim law where a Muslim
woman has obtained a divorce from or has been divorced by her husband in accordance with
Muslim law. The Act directs that if neither the former wife or husband has the means to provide
for her support, the responsibility of maintenance of the divorc�e falls on her relations, that is,
those relatives that would stand to inherit from her. If she has no close relations or they are
unable to support her, liability falls to the State Waqf Board. Section 5 of the Act also allows for
a divorced Muslim woman and her former husband to declare to the Court their willingness to be
governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure relating to
the maintenance of dependants unable to support themselves. In the first reported case relating to
the Act (Ali v. Sufaira 1988 (2) KLT), the Kerala High Court rejected a narrow interpretation of
the legislation as only requiring Muslim men to support their divorced wives during the �idda
period. Rather, the Court stated that the appropriate interpretation of section 3(1)(a), "�a
divorced women shall be entitled to a reasonable and fair provision and maintenance to be made
and paid to her within the �idda period by her former husband", was that maintenance during
the waiting period and reasonable and fair provision were two separate issues. Thus, the Court
ruled that the Muslim divorc�e is entitled not only to maintenance for her waiting period, but
also to a reasonable and fair provision to provide "for her future livelihood, from her former
husband." This has since been confirmed by a large number of judgements.
Custody is governed by the Guardians and Wards Act 1890 applicable to all religious
communities in India. The Act stipulates that courts are to be guided by the personal law to
which the minor is subject. The courts are also directed to consider the age, gender and religion
of the minor and the character and capacity of the proposed guardian, and the minor�s own
opinion if s/he is old enough to form an intelligent preference. If the minor is very young or is
female, the courts are directed to give preference to the mother. In all cases, the interests of the
ward are paramount. In custody cases involving Muslims, courts tend to follow the general rule
that the divorced mother is entitled to custody till 7 years for boys (classical Hanafi position) and
puberty for girls.
Law/Case Reporting System: Law reports are published in Supreme Court Reports (SCR), All
India Reporter (AIR), Indian Law Reports (ILR), and a large number of state law reports.
International Conventions & Reports to Treaty Governing Bodies: India acceded to the
ICESCR and the ICCPR in 1979 with a number of declarations, including one to the effect that
�the right of self-determination� mentioned in common Article 1 is interpreted by India as
applying only to peoples under foreign domination and not to sovereign independent states or a
section of a people or nation.
India became a signatory to the CEDAW in 1980 and ratified it in 1993. India submitted a
declaration regarding Articles 5(a) and 16(1) that reiterates India�s commitment to abiding by
the provisions "in conformity with its policy of non-interference in the personal affairs of any
Community without its initiative and consent." India also registered a declaration regarding
Article 16(2) on minimum marriage ages and compulsory registration; although India fully
supports the principle, "it is not practical in a vast country like India with its variety of customs,
religions and level of literacy."
India acceded to the CRC in 1992, with a declaration regarding the progressive
implementation of Article 32 thereof on child labour, particularly with reference to paragraph
2(a) on the provision of a minimum employment age.
Background and Sources: Baxi, "People�s Law in India," in Asian Indigenous Law in
Interaction with Received Law, Chiba, ed. London, 1986; Diwan & Diwan, Women and Legal
Protection, New Delhi, 1995; Engineer, The Shah Bano Controversy, Hyderabad, 1987;
Anderson, "Islamic Law and the Colonial Encounter in British India," & Menski "The Reform of
Family Law and a Uniform Civil Code for India," in Islamic Family Law, Mallat & Connors,
eds. London, 1990; Mahmood, "India" in Statutes of Personal Law in Islamic Countries, 2nd ed.,
New Delhi, 1995; Malik, "Once Again Shah Bano: Maintenance and the Scope for Marriage
Contracts," Dhaka Law Reports Journal Section, vol. 42 (1990): 34-40; Pearl & Menski, Muslim
Family Law, 3rd ed., London, 1998; Redden, "India" in Modern Legal Systems Cyclopedia, vol.
9, Buffalo, NY, 1990; Robinson, ed. The Cambridge Encyclopaedia of India, Pakistan,
Bangladesh, Sri Lanka, Nepal, Bhutan and the Maldives, Cambridge
Islamic Law
Myths and Realities
By: Dennis J. Wiechman, Jerry D. Kendall, and
Mohammad K. Azarian
The general public and many academics have several preconceived notions
about Islamic Law. One such notion is that Islamic judges are bound by
ancient and outdated rules of fixed punishments for all crimes. This paper
explores that idea and looks at other myths in an attempt to present Islamic
Law from a non-biased view of Sharia Law.
Some contemporary scholars fail to recognize Islamic Law as an equal to
English Common Law, European Civil Law and Socialist Law. A few
academics have even attempted to place Islamic Law into the Civil Law
tradition. Other writers have simply added a footnote to their works on
comparative justice on the religious law categories of Islamic Law, Hindu
Law, which is still used in some parts of India, and the Law of Moses from
the Old Testament which still guides the current thought of the Israeli
Knesset (Parliament) today. This survey will attempt to alter some of these
inaccurate perceptions and treatments in both the contemporary literature
and academic writings.
Mohammed Salam Madkoar explains the theoretical assumptions of Islamic
Law:
In order to protect the five important indispensables in Islam (religion, life,
intellect, offspring and property), Islamic Law has provided a worldly
punishment in addition to that in the hereafter. Islam has, in fact, adopted
two courses for the preservation of these five indispensables: the first is
through cultivating religious consciousness in the human soul and the
awakening of human awareness through moral education; the second is by
inflicting deterrent punishment, which is the basis of the Islamic criminal
system. Therefore "Hudoud," Retaliation (Qisas)and Discretionary (Ta'zir)
punishments have been prescribed according to the type of the crime
committed.
Islamic Law and Jurisprudence is not always understood by the western
press. Although it is the responsibility of the mass media to bring to the
world's attention violations of human rights and acts of terror, many believe
that media stereotyping of all Muslims is a major problem. The recent
bombing at the World Trade Center in New York City is a prime example.
The media often used the term "Islamic Fundamentalists" when referring to
the accused in the case. It also referred to the Egyptian connections in that
case as "Islamic Fundamentalists." The media has used the label of "Islamic
Fundamentalist" to imply all kinds of possible negative connotations:
terrorists, kidnappers and hostage takers. Since the media does not use the
term "Fundamentalist Christian" each time a Christian does something
wrong, the use of such labels is wrong for any group, Christians, Muslims, or
Orthodox Jews.
A Muslim who is trying to live his religion is indeed a true believer in God.
This person tries to live all of the tenets of his religion in a fundamental way.
Thus, a true Muslim is a fundamentalist in the practice of that religion, but a
true Muslim is not radical, because the Quran teaches tolerance and
moderation in all things. When the popular media generalizes from the
fundamentalist believer to the "radical fundamentalist" label they do a
disservice to all Muslims and others.
No Separation of Church and State
To understand Islamic Law one must first understand the assumptions of
Islam and the basic tenets of the religion. The meaning of the word Islam is
"submission or surrender to Allah's (God's) will." Therefore, Muslims must
first and foremost obey and submit to Allah's will. Mohammed the Prophet
was called by God to translate verses from the Angel Gabriel to form the
most important book in Islam, the Quran, Muslims believe.
There are over 1.2 billion Muslims today worldwide, over 20% of the world's
population. "By the year 2000, one out of every four persons on the planet
will be a Muslim," Rittat Hassan estimated in 1990. There are 35 nations
with population over 50% Muslim, and there are another 21 nations that
have significant Muslim populations. There are 19 nations which have
declared Islam in their respective constitutions. The Muslim religion is a
global one and is rapidly expanding. The sheer number of Muslims living
today makes the idea of putting Islamic Law into a footnote in contemporary
writings inappropriate.
The most difficult part of Islamic Law for most westerners to grasp is that
there is no separation of church and state. The religion of Islam and the
government are one. Islamic Law is controlled, ruled and regulated by the
Islamic religion. The theocracy controls all public and private matters.
Government, law and religion are one. There are varying degrees of this
concept in many nations, but all law, government and civil authority rests
upon it and it is a part of Islamic religion. There are civil laws in Muslim
nations for Muslim and non-Muslim people. Sharia is only applicable to
Muslims. Most Americans and others schooled in Common Law have great
difficulty with that concept. The U.S. Constitution (Bill of Rights) prohibits
the government from "establishing a religion." The U.S. Supreme Court has
concluded in numerous cases that the U.S. Government can't favor one
religion over another. That concept is implicit for most U.S. legal scholars
and many U.S. academicians believe that any mixture of "church and state"
is inherently evil and filled with many problems. They reject all notions of a
mixture of religion and government.
To start with such preconceived notions limits the knowledge base and
information available to try and solve many social and criminal problems. To
use an analogy from Christianity may be helpful. To ignore what all Christian
religions except your own say about God would limit your knowledge base
and you would not be informed or have the ability to appreciate your own
religion. The same is true for Islamic Law and Islamic religion. You must
open your mind to further expand your knowledge base. Islamic Law has
many ideas, concepts, and information that can solve contemporary crime
problems in many areas of the world. To do this you must first put on hold
the preconceived notion of "separation of church and state."
Judge (Qadi)
Another myth concerning Islamic Law is that there are no judges. Historically
the Islamic Judge (Qadi) was a legal secretary appointed by the provincial
governors. Each Islamic nation may differ slightly in how the judges are
selected. Some nations will use a formal process of legal education and
internship in a lower court. For example, in Saudi Arabia there are two levels
of courts. The formal Sharia Courts which were established in 1928 hear
traditional cases. The Saudi government established a ministry of justice in
1970, and they added administrative tribunals for traffic laws, business and
commerce. "All judges are accountable to God in their decisions and
practices" (Lippman, p.66-68).
One common myth associated with Islamic Law is that judges must always
impose a fixed and predetermined punishment for each crime. Western
writers often point to the inflexible nature of Islamic Law. Judges under
Islamic Law are bound to administer several punishments for a few very
serious crimes found in the Quran, but they possess much greater freedom
in punishment for less serious (non-Had) crimes. Common law is filled with
precedents, rules, and limitations which inhibit creative justice. Judges under
Islamic Law are free to create new options and ideas to solve new problems
associated with crime.
Elements of Sharia Law
Islamic law is known as Sharia Law, and Sharia means the path to follow
God's Law. Sharia Law is holistic or eclectic in its approach to guide the
individual in most daily matters. Sharia Law controls, rules and regulates all
public and private behavior. It has regulations for personal hygiene, diet,
sexual conduct, and elements of child rearing. It also prescribes specific
rules for prayers, fasting, giving to the poor, and many other religious
matters. Civil Law and Common Law primarily focus on public behavior, but
both do regulate some private matters.
Sharia Law can also be used in larger situations than guiding an individual's
behavior. It can be used as guide for how an individual acts in society and
how one group interacts with another. The Sharia Law can be used to settle
border disputes between nations or within nations. It can also be used to
settle international disputes, conflicts and wars. This Law does not exclude
any knowledge from other sources and is viewed by the Muslim world as a
vehicle to solve all problems civil, criminal and international.
Sharia Law has several sources from which to draw its guiding principles. It
does not rely upon one source for its broad knowledge base. The first and
primary element of Sharia Law is the Quran. It is the final arbitrator and
there is no other appeal. The second element of Sharia Law is known as the
Sunna, the teachings of the Prophet Mohammed not explicitly found in the
Quran. The Sunna are a composite of the teachings of the prophet and his
works. The Sunna contain stories and anecdotes, called Hadith, to illustrate
a concept. The Quran may not have all the information about behavior and
human interaction in detail; the Sunna gives more detailed information than
the Quran.
The third element of Sharia Law is known as the Ijma. The Muslim religion
uses the term Ulama as a label for its religious scholars. These Ulamas are
consulted on many matters both personal and political. When the Ulamas
reach a consensus on an issue, it is interpreted as a ijma. The concepts and
ideas found in the ijma are not found explicitly in the Quran or the teachings
of the Prophet (Sunna). Islamic judges are able to examine the ijma for
many possible solutions which can be applied in a modern technical society.
They are free to create new and innovative methods to solve crime and
social problems based upon the concepts found in the ijma. These judges
have great discretion in applying the concepts to a specific problem.
The Qiyas are a fourth element of Sharia Law. The Qiyas are not explicitly
found in the Quran, Sunna, or given in the Ijma. The Qiyas are new cases or
case law which may have already been decided by a higher judge. The
Sharia judge can use the legal precedent to decide new case law and its
application to a specific problem. The judge can use a broad legal construct
to resolve a very specific issue. For example, a computer crime or theft of
computer time is not found in the Quran or Sunna. The act of theft as a
generic term is prohibited so the judge must rely on logic and reason to
create new case law or Qiyas.
The fifth element of Sharia Law is very broad and "all encompassing." This
secondary body of knowledge may be ideas contained in the other written
works. The New Testament is an example of this area of information, and
legal discourses based upon Civil Law or Common Law may be another
example. All information can be examined for logic and reason to see if it
applies to the current case. It also may be a local custom or norm that judge
may find helpful in applying to the issue before him. The judge may also
weigh the impact of his decision upon how it will effect a person's standing in
the community.
Crimes in Islam
Crimes under Islamic Law can be broken down into three major categories.
Each will be discussed in greater detail with some common law analogies.
The three major crime categories in Islamic Law are:
1. Had Crimes (most serious).
2. Ta'zir Crimes (least serious).
3. Qisas Crimes (revenge crimes restitution).
Had crimes are the most serious under Islamic Law, and Ta'zir crimes are
the least serious. Some Western writers use the felony analogy for Had
crimes and misdemeanor label for Ta'zir crimes. The analogy is partially
accurate, but not entirely true. Common Law has no comparable form of
Qisas crimes.
Fairchild, in her excellent book on comparative justice, makes the following
observation of Islamic Law and punishment (Fairchild, p.41).
Punishments are prescribed in the Quran and are often harsh with the
emphasis on corporal and capital punishment. Theft is punished by
imprisonment or amputation of hands or feet, depending on the number of
times it is committed...
Had Crimes
Had crimes are those which are punishable by a pre-established punishment
found in the Quran. These most serious of all crimes are found by an exact
reference in the Quran to a specific act and a specific punishment for that
act. There is no plea-bargaining or reducing the punishment for a Had crime.
Had crimes have no minimum or maximum punishments attached to them.
The punishment system is comparable to the determinate sentence imposed
by some judges in the United States. If you commit a crime, you know what
your punishment will be. There is no flexibility in the U.S. determinate model
or in the punishment for Had crimes of Islamic Law.
No judge can change or reduce the punishment for these serous crimes. The
Had crimes are:
1. Murder;
2. Apostasy from Islam
(making war upon Allah and his messengers);

3. Theft;
4. Adultery;
5. Defamation
(false accusation of adultery or fornication);

6. Robbery;
7. Alcohol-drinking.
The first four Had crimes have a specific punishment in the Quran. The last
three crimes are mentioned but no specific punishment is found
(Schmalleger, p.603).
Some more liberal Islamic judges do not consider apostasy from Islam or
wine drinking as Had crimes. The more liberal Islamic nations treat these
crimes as Ta'zir or a lesser crime.
Had crimes have fixed punishments because they are set by God and are
found in the Quran. Had crimes are crimes against God's law and Ta'zir
crimes are crimes against society. There are some safeguards for Had crimes
that many in the media fail to mention. Some in the media only mention that
if you steal, your hand is cut off. The Islamic judge must look at a higher
level of proof and reasons why the person committed the crime. A judge can
only impose the Had punishment when a person confesses to the crime or
there are enough witnesses to the crime. The usual number of witnesses is
two, but in the case of adultery four witnesses are required. The media often
leaves the public with the impression that all are punished with flimsy
evidence or limited proof. Islamic law has a very high level of proof for the
most serious crimes and punishments. When there is doubt about the guilt
of a Had crime, the judge must treat the crime as a lesser Ta'zir crime. If
there is no confession to a crime or not enough witnesses to the crime,
Islamic law requires the Had crime to be punished as a Ta'zir crime.
Ta'zir Crimes
Modern Islamic Society has changed greatly from the time of the Prophet.
Contemporary Sharia Law is now in written form and is statutory in nature.
Islamic concepts of justice argue that a person should know what the crime
is and its possible punishment. For example, Egypt has a parliamentary
process which has a formal penal code written and based upon the principles
of Islamic Law, but Saudi Arabia allows the judge to set the Ta'zir crimes
and punishments. Modern Islamic Law recognizes many differences between
these two nations. It also allows for much greater flexibility in how it
punishes an offender. The major myth of many people is that judges in
Islamic nations have fixed punishments for all crimes. In reality the judges
have much greater flexibility than judges under common law.
Ta'zir crimes are less serious than the Had crimes found in the Quran. Some
common law writers use the analogy of misdemeanors, which is the lesser of
the two categories (felony and misdemeanor) of common law crimes. Ta'zir
crimes can and do have comparable "minor felony equivalents." These
"minor felonies" are not found in the Quran so the Islamic judges are free to
punish the offender in almost any fashion. Mohammed Salam Madkoar, who
was the head of Islamic Law at the University of Cairo, makes the following
observation (Ministry of the Interior, 1976,p.104):
Ta'zir punishments vary according to the circumstances. They change from
time to time and from place to place. They vary according to the gravity of
the crime and the extent of the criminal disposition of the criminal himself.
Ta'zir crimes are acts which are punished because the offender disobeys
God's law and word. Ta'zir crimes can be punished if they harm the societal
interest. Sharia Law places an emphasis on the societal or public interest.
The assumption of the punishment is that a greater "evil " will be prevented
in the future if you punish this offender now.
Historically Ta'zir crimes were not written down or codified. This gave each
ruler great flexibility in what punishments the judge was able to dispense.
The judge under Islamic Law is not bound by precedents, rules, or prior
decisions as in common law. Judges are totally free to choose from any
number of punishments that they think will help an individual offender. The
only guiding principle for judges under Sharia Law is that they must answer
to Allah and to the greater community of Muslims. Some of the more
common punishment for Ta'zir crimes are counseling, fines, public or private
censure, family and clan pressure and support, seizure of property,
confinement in the home or place of detention, and flogging.
In some Islamic nations, Ta'zir crimes are set by legislative parliament. Each
nation is free to establish its own criminal code and there is a great disparity
in punishment of some of these crimes. Some of the more common Ta'zir
crimes are: bribery, selling tainted or defective products, treason, usury, and
selling obscene pictures. The consumption of alcohol in Egypt is punished
much differently than in Iran or Saudi Arabia because they have far different
civil laws. Islamic law has much greater flexibility than the Western media
portrays. Each judge is free to punish based upon local norms, customs, and
informal rules. Each judge is free to fix the punishment that will deter others
from crime and will help to rehabilitate an offender.
Qisas Crimes and Diya
Islamic Law has an additional category of crimes that common law nations
do not have. A Qisas crime is one of retaliation. If you commit a Qisas crime,
the victim has a right to seek retribution and retaliation. The exact
punishment for each Qisas crime is set forth in the Quran. If you are killed,
then your family has a right to seek Qisas punishment from the murderer.
Punishment can come in several forms and also may include "Diya." Diya is
paid to the victim's family as part of punishment. Diya is an ancient form of
restitution for the victim or his family. The family also may seek to have a
public execution of the offender or the family may seek to pardon the
offender. Traditional Qisas crimes include:
1. Murder (premeditated and non-premeditated).
2. Premeditated offenses against human life, short of murder.
3. Murder by error.
4. Offenses by error against humanity, short of murder.
Some reporters in the mass media have criticized the thought of "blood
money" as barbaric. They labeled the practice as undemocratic and
inhumane. Qisas crimes are based upon the criminological assumption of
retribution. The concept of retribution was found in the first statutory "Code
of Hammurabi" and in the Law of Moses in the form of "an eye for an eye."
Muslims add to that saying "but it is better to forgive." Contemporary
common law today still is filled with the assumptions of retribution. The
United States federal code contains "mandatory minimum" sentences for
drug dealing, and many states have fixed punishment for drugs and violence
and using weapons. The United States justice system has adopted a
retribution model which sets fixed punishments for each crime. The idea of
retribution is fixed in the U.S. system of justice. Qisas crime is simple
retribution: if one commits a crime he knows what the punishment will be.
Diya has its roots in Islamic Law and dates to the time of the Prophet
Mohammed when there were many local families, tribes and clans. They
were nomadic and traveled extensively. The Prophet was able to convince
several tribes to take a monetary payment for damage to the clan or tribe.
This practice grew and now is an acceptable solution to some Qisas crimes.
Today, the Diya is paid by the offender to the victim if he is alive. If the
victim is dead, the money is paid to the victim's family or to the victim's
tribe or clan. The assumption is that victims will be compensated for their
loss. Under common law, the victim or family must sue the offender in a civil
tort action for damages. Qisas law combines the process of criminal and civil
hearings into one, just as the "civil law" is applied in many nations of the
world. Qisas crimes are compensated as restitution under common law and
civil law.
The Qisas crimes require compensation for each crime committed. Each
nation sets the damage before the offense and the judge then fixes the
proper Diya. If an offender is too poor to pay the diya, the family of the
offender is called upon first to make good the diya for their kin. If the family
is unable to pay, the community, clan or tribe may be required to pay. This
concept is not found in common law or the civil law of most nations. It acts
as a great incentive for family and community to teach responsible behavior.
What happens to the debt if the offender dies and has not paid it?
Historically, it was passed on to the offender's heirs; today, most nations
terminate the debt if the offender left no inheritance.
One question that is often raised is "What happens if a victim takes the diya
without government approval ?" The victim or family has committed a Ta'zir
crime by accepting money which was not mandated by a judge: taking diya
must be carried out through proper governmental and judicial authority.
Another concept of Qisas crimes is the area of punishment. Each victim has
the right to ask for retaliation and, historically, the person's family would
carry out that punishment. Modern Islamic law now requires the government
to carry out the Qisas punishment. Historically, some grieving family
member may have tortured the offender in the process of punishment. Now
the government is the independent party that administers the punishment,
because torture and extended pain is contrary to Islamic teachings and
Sharia Law.
Conclusions
Contemporary treatment of Islamic Law and "Radical Muslims" is filled with
stereotypical characterizations. Some in the Western media have used the
"New York City bombings" as a way to increase hate and prejudice. They
have taken the views of a few radicals and projected them onto all Muslims.
This action has done a great disservice to the Muslim world. Some academic
writings also have been distorted and not always completely accurate and
some researchers have concluded that Islamic Law requires a fixed
punishment for all crimes. These writers also have concluded that Islamic
judges lack discretion in their sentences of defendants in the Sharia Court
System. There are four Had crimes that do have fixed punishments set forth
in the Quran, but not all the Had crimes are bound by mandatory
punishment.
Islamic Law is very different from English Common Law or the European Civil
Law traditions. Muslims are bound to the teachings of the Prophet
Mohammed whose translation of Allah or God's will is found in the Quran.
Muslims are held accountable to the Sharia Law, but non-Muslims are not
bound by the same standard (apostasy from Allah). Muslims and non-
Muslims are both required to live by laws enacted by the various forms of
government such as tax laws, traffic laws, white collar crimes of business,
and theft. These and many other crimes similar to Common Law crimes are
tried in modern "Mazalim Courts." The Mazalim Courts can also hear civil
law, family law and all other cases. Islamic Law does have separate courts
for Muslims for "religious crimes" and contemporary non-religious courts for
other criminal and civil matters.
Selected Bibliography
Al-Alfi, Ahmad Abd al-aziz "Punishment in Islamic Criminal Law". In
Bassiouni, M. Cherif. The Islamic Criminal Justice System. New York: Oceana
Publication, 1982. pp. 227-236.
Al-Thakeb, Fahed and Scott, Joseph E. "Islamic Law: An Examination of its
Revitalization." British Journal of Criminology. Vol.21, No.1 (Jan. 1981),
pp.58-69.
Ali, B. "Islamic Law and Crime: The Case of Saudi Arabia." International
Journal of Comparative and Applied Criminal Justice. Vol.9, No.2 (Winter,
1985) pp.45-57.
Badr, Gamal Mouri, "Islamic Law: Its Relation to Other Legal Systems." The
American Journal of Comparative Law. Vol.26 (1978), pp. 187-198.
Bassiouni, M. Cherif, ed. The Islamic Criminal Justice System. New York:
Oceana Publications, 1982.
Doi, Abdur Rahman I. Shariah: The Islamic Law. London: Ta-Ha Publishers,
1984.
Doi, Abdur Rahman I. Shariah in the 1500 Century of Hijra Problems and
Prospects. London: Ta-Ha Publishers, 1981.
El-Awa, Mohamed S. Punishment in Islamic Law: A Comparative Study.
Indianapolis: American Trust Publishers, 1982.
Ezeldin, Ahmed Galal. "Judicial Control of Policing in Egypt." CJ International
Vol. 7, No.4 (July-August, 1991), pp. 3, 4.
Fairchild, Erika S. Comparative Criminal Justice Systems. Belmont, CA.:
Wadsworth Publishing Co., 1993.
Fitzgerald, S.V. "The Alleged Debt of Islamic Law to Roman Law." The Law
Quarterly, Vol.67. (Jan.,1951),pp.81-102.
Ghanem, Isam. Outlines of Islamic Jurisprudence. Riyadh, Saudi Arabia:
Saudi Publishing and Clearing House, 1983.
Griffiths, Curt Taylor. "The Criminal Justice System of Egypt." International
Criminal Justice Systems II, Omaha, Nebraska: Academy of Criminal Justice
Sciences, 1986, pp. 13-26.
Hassan, Rittat. "Muslims in America: A Living Presence." Horizons.
(November/December, 1990), pp.10-11.
Heer, Nicholas, ed. Islamic Law and Jurisprudence. Seattle, WA.: University
of Washington Press. 1990.
Khadduri, Majid and Herbert J. Liebesny, eds. Origin and Development of
Islamic Law. Volume 1 of Law in the Middle East. ed. Majid Khadduri and
Herbert J. Liebesny. New York: AMS Press,1984.
Laliwala, Jafer Ismail. The Islamic Jurisprudence. India: The India Institute
of Islamic Studies.
Lamb, David. The Arabs: Journeys Beyond the Mirage. New York: Vintage
Books, 1987.
Lippman, Matthew and McConnville, Sean and Yerushalmi, Mordechai.
Islamic Criminal Law and Procedure and Introduction. New York: Praeger,
1988.
Masud, Muhammad Khalid. Islamic Legal Philosophy. Pakistan: Islamic
Research Institute, Reprint 1984.
Mernissi, Fatima. The Veil and the Male Elite. New York: Addison-Wesley
Publishing Company, Inc., 1987.
Moore, Richter H. "Islamic Legal Systems: A Comparison-Saudi Arabia,
Bahrain and Pakistan." Comparative Criminal Justice Chicago, IL.: Office of
International Criminal Justice, 1989., pp.243-250.
Moore, Richter H. "The Criminal Justice System of Saudi Arabia."
International Criminal Justice Systems II. Omaha, Nebraska: Academy of
Criminal Justice Sciences, 1986., pp.139-198.
Qadri, Anwar Ahmad. A Sunni Shafi'i Law Code. Sh. Muhammad Ashraf.
(Available at Mahmud's Bazaar, P.O. Box 505, Conley, GA 30027)
"Rising Fundamentalist Movement Takes Center Stage." CJ International
Vol.8, No. 2, (March-April, 1992), p.1-6.
Schmalleger, Frank. Criminal Justice Today. 2nd ed. Englewood Cliffs, NJ.:
Peentice Hall, 1993.
Trojan, Carol. "Egypt: Evolution of a Modern Police State". Comparative
Criminal Justice. Chicago, IL: Office of International Criminal Justice,
University of Illinois at Chicago, 1989, pp. 235-242.
Ward, Dick. "Fanatic Fundamentalism Brings Renewed Strife and Concern in
Region." CJ International, Vol.9, No.2 (March-April, 1993), pp.14.
Weiss, Bernard. "Interpretation in Islamic Law: The Theory of Ijtihad." The
American Journal of Comparative Law, Vol. 26, (1978), pp.199-212.
United Nations Social Defense Research Institute. The Effect of Islamic
Legislation on Crime Prevention in Saudi Arabia. Proceedings of the
Symposium held in Riyadh. 16-21 Sharia 1396 A.H.(9-13 October, 1976)
Riyadh, Saudi Arabia. Ministry of Interior, Kingdom of Saudi Arabia, 1980.
GENERAL OVERVIEW OF ISLAMIC LAW

A. The Necessity for Islam
From ancient times, mankind has tried to reason beyond his ability and has
been prey to wars and jealousies as a result. Religions, each in the wake of
the one before, have attempted to face these ethical dilemmas. Each has
had a limited number of followers and has been confined to a certain time
period. Muhammad's mission was a necessity, particularly to the Arab
countries.' to bring their world out of the darkness, error, and falsehoods
into which it had fallen.
To understand the mission of Muhammad it is necessary to understand the
broad background of the area where Islam was first revealed to Muhammad-
Mecca in 622 A.D. At this time, Mecca was govemed by a strong tribe called
Koraish. The Koraish people worshipped idols in the form of statues, which
each person would touch before going on a journey and also on arrival back
home to receive blessings' from them There was no single idol, each home
having its own choice.
The society was ruled by the law of the jungle; that is. the strongest
survived. There was no equality between master and slave, no equality
between leaders and followers (korishee and nonkorishee), no equality
between men and women (many families killed newborn females). This
period is referred to in the Holy Qur'an as "ignorant times" (jahilliyah).
Muhammad received the Islamic religion from the Lord and tried to share it
with the people of Mecca, asking them to believe in only one God; to stop
worshipping idols; and to stop all discrimination based on origin, race, color,
and sex. The people refused. They did not believe that he was God's
messenger so they persecuted him and his followers. Eventually, Muhammad
and his followers, with the Lord's blessings, left Mecca and went to Medina, 4
where the Prophet established the first Islamic government.
B. The Five Pillars of the Islamic Religion
. The Five Pillars of the Islamic Religion

Islam is based on five fundamental pillars (tenets) that all Muslims should
believe.
1 . al-Shahada: The first pillar is the shahada, which means belief in one
God, his angels, his apostles, and the hereafter. Muslims understand
shahada as follows: I profess that there is no God but Allah and Muhammad
is the Prophet of Allah.
2. al-Salat (Prayer): The ritual of prayers has been from its very beginning
one of the means of unifying all the different tribal and social sections of the
community. There are five set daily times for prayer: dawn (fajr), noon
(zuhr), afternoon (asr), sunset (niaghrib), and night (isha).
3. al-Si-vam (Fasting): Almighty God said, "You who believe, fasting is
prescribed for you that you may learn self-restraint." Obligatory fasting,
which means refraining from food, drink, smoking, and sexual activity from
dawn to sunset, is expected during the month of Ramadan. Those who are
sick or on a journey are required to fast an equal number of days later on.
4. al-Hajj (Pilgrimage): Pilgrimage to Ka'ba (in Mecca) is an obligation once
in a lifetime for all Muslims who are able, both physically and financially, to
do so.
5. al-Zakat (The Poor Due): Zakat is imposed on all Muslims in thirtytwo
verses of the Qur'an. In most of these verses, zakat is coupled with prayer,
which illustrates the importance the Qur'an places on it.5 Zakat means
charity, taking from the rich and giving to the poor. It is an aspect of the
social solidarity which must exist among Muslims throughout the whole
world.
Zakat in Islam is divided into two main categories:
a. Zakat at-Fitr (the breaking of fast at the end of Ramadan6). According to
our present estimate, the amount of zakat al-fitr is about ten Egyptian
piastres per person. This should be paid before going to the feast prayer at
the end of Ramadan.
b. Zakat of wealth. This zakat of wealth is imposed upon free, adult, sane
Muslims who have a set amount of wealth for one year. Zak-at of wealth is
levied on livestock (such as camels, cows, and goats), gold and silver, fruits,
and productions. The percentage of zakat differs in accordance with the kind
of wealth subject to it. Private abodes, personal clothing, furniture, weapons,
animals used for transport, jewels and books not traded in, and equipment
used in earning one's living are not subject to zakat of wealth.
C. The Relationship between Islam and Previous Religions
The Theory of Crime and Criminal

Responsibility in Islamic Law:
Sharia
By Dr. Nagaty Sanad
Note: This a sample chapter form the above mentioned book. For more
information, click on the image.
CHAPTER 1:
GENERAL OVERVIEW OF ISLAMIC LAW
A. The Necessity for Islam
From ancient times, mankind has tried to reason beyond his ability and has
been prey to wars and jealousies as a result. Religions, each in the wake of
the one before, have attempted to face these ethical dilemmas. Each has
had a limited number of followers and has been confined to a certain time
period. Muhammad's mission was a necessity, particularly to the Arab
countries.' to bring their world out of the darkness, error, and falsehoods
into which it had fallen.
To understand the mission of Muhammad it is necessary to understand the
broad background of the area where Islam was first revealed to Muhammad-
Mecca in 622 A.D. At this time, Mecca was govemed by a strong tribe called
Koraish. The Koraish people worshipped idols in the form of statues, which
each person would touch before going on a journey and also on arrival back
home to receive blessings' from them There was no single idol, each home
having its own choice.
The society was ruled by the law of the jungle; that is. the strongest
survived. There was no equality between master and slave, no equality
between leaders and followers (korishee and nonkorishee), no equality
between men and women (many families killed newborn females). This
period is referred to in the Holy Qur'an as "ignorant times" (jahilliyah).
Muhammad received the Islamic religion from the Lord and tried to share it
with the people of Mecca, asking them to believe in only one God; to stop
worshipping idols; and to stop all discrimination based on origin, race, color,
and sex. The people refused. They did not believe that he was God's
messenger so they persecuted him and his followers. Eventually, Muhammad
and his followers, with the Lord's blessings, left Mecca and went to Medina, 4
where the Prophet established the first Islamic government.
B. The Five Pillars of the Islamic Religion
Islam is based on five fundamental pillars (tenets) that all Muslims should
believe.
1 . al-Shahada: The first pillar is the shahada, which means belief in one
God, his angels, his apostles, and the hereafter. Muslims understand
shahada as follows: I profess that there is no God but Allah and Muhammad
is the Prophet of Allah.
2. al-Salat (Prayer): The ritual of prayers has been from its very beginning
one of the means of unifying all the different tribal and social sections of the
community. There are five set daily times for prayer: dawn (fajr), noon
(zuhr), afternoon (asr), sunset (niaghrib), and night (isha).
3. al-Si-vam (Fasting): Almighty God said, "You who believe, fasting is
prescribed for you that you may learn self-restraint." Obligatory fasting,
which means refraining from food, drink, smoking, and sexual activity from
dawn to sunset, is expected during the month of Ramadan. Those who are
sick or on a journey are required to fast an equal number of days later on.
4. al-Hajj (Pilgrimage): Pilgrimage to Ka'ba (in Mecca) is an obligation once
in a lifetime for all Muslims who are able, both physically and financially, to
do so.
5. al-Zakat (The Poor Due): Zakat is imposed on all Muslims in thirtytwo
verses of the Qur'an. In most of these verses, zakat is coupled with prayer,
which illustrates the importance the Qur'an places on it.5 Zakat means
charity, taking from the rich and giving to the poor. It is an aspect of the
social solidarity which must exist among Muslims throughout the whole
world.
Zakat in Islam is divided into two main categories:
a. Zakat at-Fitr (the breaking of fast at the end of Ramadan6). According to
our present estimate, the amount of zakat al-fitr is about ten Egyptian
piastres per person. This should be paid before going to the feast prayer at
the end of Ramadan.
b. Zakat of wealth. This zakat of wealth is imposed upon free, adult, sane
Muslims who have a set amount of wealth for one year. Zak-at of wealth is
levied on livestock (such as camels, cows, and goats), gold and silver, fruits,
and productions. The percentage of zakat differs in accordance with the kind
of wealth subject to it. Private abodes, personal clothing, furniture, weapons,
animals used for transport, jewels and books not traded in, and equipment
used in earning one's living are not subject to zakat of wealth.
C. The Relationship between Islam and Previous Religions
Change is the essence of mankind. New human needs and requirements will
always develop as long as man exists on the earth. In order to meet the
needs of the changing times, to satisfy the demands of the developing
society, to enable mankind to lead a good life, God sent his messengers
successively: Moses, Jesus, and Muhammad.
Islam is thus not a new and separate religion, but the culmination of God's
spiritual and temporal commands made known to mankind through Moses
and Jesus. Hence, Islam continues as the successor and final expression of
the Judeo-Christian revelations. Islam therefore considers the spiritual
provisions expressed by the Torah and the Bible. It also considers and
protects the believers of these two divine revelations (the people of the
book), as long as they live in an Islamic country, under a protective
covenant known as Zimmi. According to Zimmi, Christian and Jewish people
who live in a Muslim country have the right to practice their religious rituals
and are equal to Muslim people in tenns of personal rights.
Moreover, the Islamic country, under this protective covenant, is obliged to
defend and protect the Zimmis and their property against any external or
internal attack. In return for this practice, the Zimmi are asked to pay jizva,
which is a tax levied on able Zimmi men amounting to 10 percent of the
income earned by them while in an Islamic country. If a Zimmi joins with the
Muslims in protecting the country, then he is exempt from jizya
D. The Application of Islamic Law in Terms of Places and Persons
A question arises as to whether the application of Islamic law is based on
territorial or personal criteria. If it is based on territorial criteria, all people
within the boundaries of a Muslim country8 are governed by Islamic law,
regardless of whether they are Muslim or non-Muslim. If the basis for
application of Islamic law is personal, the law applies to Muslim people
exclusively, wherever they are.
Muslim scholars are arguing over this issue. Most of them support a mixture
of the two criteria. Thus, if a non-Muslim is in an Islamic country and breaks
the rules of the country by, for instance, eating pork or drinking wine, that
person will be punished according to Islamic precepts. At the same time, if a
Muslim visits a non-Muslim country and eats pork or drinks wine, he is still
governed by the Islamic law which prohibits such actions. The majority of
Muslim scholars support this viewpoint by referring to the prophetic saying,
"They [the Zimmi] have the same rights andobligations."
On the other hand, one of the most famous Muslim scholars, Abu Hanifa,
says that Islamic law should be applied within the boundaries of Islamic
countries to Muslim people exclusively. It does not apply to the non-Muslim
in Islamic countries or to the Muslim in a non-Muslim country. This viewpoint
is based upon religious freedom guaranteed by Islamic law to the non-
Muslim.9
E. Islam-Theory and Practice
The practice and the theory of Islam were identical during the time of
Muhammad and the four caliphs (iniam) succeeding him (Abu Bakr, Omar,
Othman, and Ali). This was the time of "true Islam." It was during this time
that Islam spread throughout the Arab countries and also into France, Spain,
and other areas throughout the world.
At the present time, the practice of Islamic law is not identical to the theory
described in the Holy Qur'an, the Surma traditions of the Prophet
Muhammad, and the other traditional sources of Islamic law. Because the
states that consider Islam as an official religion"' follow some practices that
are not identical to the purest form of shari'a (Islamic law), the present
practice of Islam has a cloudv relationship with the ideal theory of true
Islam.
Very early in the history of Islam, particularly during the rule of Imam Ali,
Muslims divided into two factions over the status of the ruler: the Sunni and
the Shiites. Sunnis, who represent 85 to 90 percent of Muslims, believe that
the Muslim ruler should be elected by the Muslim people. It is not necessary
for the ruler to be a descendant of the Prophet Muhammad, nor is it believed
that this ruler has theocratic status. On the other hand, Shiites, who
represent from 10 to 15 percent of the Muslim people, believe that the
Muslim ruler should be appointed by the Prophet Muhammad and should be
a descendant of his family. The people have no say in either the ruler's
appointment or the ruler's discharge; it is absolutely a prophetic matter.
(Iran is a current example of Shiites.)
In the area of interpreting and applying Islamic rules and provisions to
current events, four main schools of thought emerged from the Sunnis:
Shafi'i, Hanafi, Maliki, and Hanbali. Each of these schools tried to simplify
and explain the general rules included in the Qur'an and the Sunna of the
Prophet Muhammad in order to make shari'a capable of meeting the new
requirements, needs, and demands of the changing times. Within these four
schools, some discord occurred regarding the interpretation of some topics,
but this discord did not affect the substance of Islamic rules. Various Islamic
countries have adopted different schools of thought, which explains why
there are some differences in the application of Islam in these countries.
The subjugation of Muslim and Islamic states to the colonialism of Western
Christian countries since the Middle Ages resulted in an actual stagnancy, or
rigidity, of Islamic law and the declination of its impact on the law applied by
Islamic states. Most of the Islamic states, under colonialism, have enacted
their positive laws, particularly penal codes, in accordance with Western
models. That may be the prime reason there are gaps between shari'a in
theory and its practice in Islamic states at the present time.
1. The Situation in other parts of the world at this time was as follows: (a)
Persia ha dualistic religious whose followers, although divided into different
sects, were unammou in saving that there are two gods, one of good and
the other of evil. (b) In Rome an Greece, as well as the Near Eastern
countries (Syria and Egypt), Christianity was th main religion, and
eventually it split due to the complicated factions within it. For furthe details.
see Muhammad Youssef Moussa, Islam and the Hunianit.v's Need of It
(Cairo Supreme Council for Islamic Affairs), 27-29.
2. Mecca is one of the largest and most farnous cities in Hijaz, vresentIv
known a Saudi Arabia.
3. Moussa, 25.
4. At that time, Medina was called Yasrib, a town in the Hijaz to the north of
Mecca. See Fernas Abd al-Basset, Lectures on the Islamic Political System
(Cairo, 1987), 6-27.
5. See Abd at-Razak Nofal, AI-Zakat (Cairo: Supreme Council for Islamic
Affairs, 1984),7.
6. In this regard the Prophet Muhammad said: "Fasting lies suspended
between the earth and heaven. It is only raised to heaven by the fulfillment
of zak-at al-fitr." See Abu Bakr Gaber, al- Gxaierie Menhage (Cairo), 250-
55.
7. From the Qur'an we can find some chapters (surat) which refer to Islam
as the final and universal revelation: "I am the messenger of God to all of
you" (Surat a] A'raf V: 157). -0 Mankind! Lo! We have created you male and
female and have made you nations and tribes that may know one another.
Lo! The noblest of you in the sight of Allah is the best in conduct."
8. An Islamic Country, in the view of the majority of Muslim scholars. is a
country where the majority of the population is Muslim and the existing
government represents the majority. See M. Cherif Bassiouni, The Islamic
Criminal Justice System (Ocean Publications, Inc., 1982), 3.
9. For further details, see M. Abu Zahra, Crime and Punishment in
Islamic Jurisprudence: The Crime (Cairo, 1950), 329-44.
10. Twenty-three countries have declared in their constitution that Islam is
the official religion of their country: Algeria, Bahrain, Egypt, Iran, Iraq,
Jordan, Kuwait, Libya, Malaysia, Maldives, Mauritania, Morocco, Oman,
Pakistan, Qatar, Saudi Arabia, Singapore, Somalia. Sudan, Syria. Tunisia.
United Arab Emirates, and Yemen Arab Republic
Shariàh and Fiqh
Reprinted with permission from Perspectives
As we strive as Muslims to remain on the straight path, we need to discern

the right from the wrong in every aspect of our life. The Shariàh (sacred
law) and the Fiqh (Islamic jurisprudence) provide us with the rulings in
different matters. In this article simple definitions of shariàh and fiqh are
given.
Shariàh
The Arabic word shariàh refers to the laws and way of life prescribed by
Allah (SWT) for his servants. The shariàh deals with the ideology and faith;
behavior and manners; and practical daily matters. "To each among you,
we have prescribed a law and a clear way. (Qur 'an 5:48) Shariàh
includes the Qur'an and the sunnah of the Prophet (saas). The Qur'an is the
direct word of Allah (SWT), and is the first most important source of
guidance and rulings. The Sunnah of the Prophet (saas) is the second source
of guidance and rulings. The sunnah is an inspiration from Allah (SWT), but
relayed to us through the words and actions of the Prophet (saas), and his
concurrence with others' actions. The sunnah confirmed the rulings of the
Qur'an; detailed some of the concepts, laws and practical matters which are
briefly stated in the Qur'an (e.g. definition of Islam, Iman, and Ihsan, details
of salah, types of usury); and gave some rulings regarding matters not
explicitly stated in the Qur'an (e.g. wearing silk clothes for men).
Shariàh
2-Sunnah of the
1-Qur'an
prophet (saas)
Ideology and faith Sayings
Behavior and manners Actions
Practical manners Concurrence with

Articles of worship others' actions
Characteristics of
Day-to-day activities
the Prophet (saas)
Pertaining to family, business,
penal code, government,
Fiqh
The Arabic word fiqh means knowledge, understanding and comprehension.

It refers to the legal rulings of the Muslim scholars, based on their
knowledge of the shariàh; and as such is the third source of rulings. The
science of fiqh started in the second century after Hijrah, when the Islamic
state expanded and faced several issues which were not explicitly covered in
the Qur'an and Sunnah of the Prophet (saas). Rulings based on the
unanimity of Muslim scholars and direct analogy are binding. The four Sunni
schools of thought, Hanafi, Maliki, Shafi'i and Hanbali, are identical in
approximately 75% of their legal conclusions. Variances in the remaining
questions are traceable to methodological differences in understanding or
authentication of the primary textual evidence. Differing viewpoints
sometimes exist even within a single school of thought.
3-Fiqh (Islamic Jurisprudence)
Basis of Rulings Imams of schools of thought
Unanimity of Muslim scholars

Imam Abu Hanifa 80-150 (After Hijra)
Direct and indirect analogy
Imam Malik 93-179 (A.H.)
Benefit for community
Imam Shafi'i 150-204(A.H.)
Custom
Imam Ahmad Ibn Hanbal 164-241
Associated rules (A.H.)
Original rules Others: Al-Thawri, Ibn Abu-Lail, Al

Awza'i,
Opinion of a companion of the Prophet and Al-Laith
Rulings of the Shariàh

The rulings of shariàh for all our daily actions are five : prescribed,
recommended, permissible, disliked and unlawful . The distinctions between
the five categories are in whether their performance (P) and
nonperformance (NP) is rewarded, not rewarded, punished or not punished
(see the table). The prescribed (fard) is also referred to as obligatory
(wajib), mandatory (muhattam) and required (lazim). It is divided into two
categories :
personally obligatory (fard al-'ayn), which is required from every individual
Muslim (e.g. salah and zakah);
and communally obligatory (fard al- kifaya), which if performed by some Muslims
is not required from others (e.g., funeral prayers).
The recomended (mandub) is also referred to as sunnah, preferable

(mustahabb), meritorious (fadila), and desirable (marghub fih). Examples
are night vigil (tahajjud) prayers, and rememberance of Allah (zikr).
The performance and nonperformance of the permissible/ allowed (mubah)
is neither rewarded nor punished.
Nonperformance of both the disliked (makruh) and the unlawful/prohibited

(haram ) is rewarded. Performance of the unlawful is punished, but that of the
disliked is not punished.
Rulings of Sacred Law
2. 3. 4. 5.
1.
Recommend Permissible/Allo Disliked/Offensive/Dete Unlawful/Prohibi
Prescribed
ed wed sted ted
Other Other terms: P: not rewarded P: not punished

terms: - Sunnah NP: not punished NP: rewarded
- Obligatory - Preferable
- - Meritorius
Mandatory - Desirable
- Required
P: rewarded
Personally NP: not
obligatory, punished
communall
y
obligatory
Performanc
e:
rewarded
Non-
Performanc
e: punished
Problem confronting the Muslim World

By Dr. Said Ramadan, Director, Islamic Center, Geneva
"Which in your opinion are the major problems of the Muslim World, the
problems upon which the attention of the workers of Islam should be focused
and, to the solution of which they should devote all, or the greater part of
their endeavors?" This was my question to my friend who has been working
for Islam, for the last thirty years. For a while he remained silent and then
replied: "I considered three problems to be responsible for the disastrous
state of affaires in the Muslim world: first the failure to distinguish between
what God laid down in his Book and the Tradition of His Prophet, and the
elaboration's derived therefrom by our leggiest; second, the plight of
womenfolk in Muslim so Muslim society and the perversion of the meaning of
"obedience to those in authority" to denote abject subservience and
shameless acquiescence to rulers, regardless of the extent of the wrongs that
they might commit and the injustices which they might perpetrate."
This observation was followed by a long discussion which centered upon these
questions, with a view to the full appreciation of the importance of these
problems and the realization of the need for earnest, unrelenting endeavor
toward their solution. During the discussion, I found myself keenly responsive
to the need for appreciation of the importance of these problems, and as my
learned friend held forth on the subject, I had the feeling of a doctor's fingers
probing sore spots. For these three problems do indeed occupy a pre-eminent
position among those numerous maladies which afflict our body-politic.
Moreover, these maladies are becoming chronic ones and as time passes we
are getting used to them.
Distinction Between Shari'ah and Fiqh

The first of these problems is our failure to distinguish between what has been laid down by
God in His Book and the Tradition of the Prophet (Sunnah) on the one hand, and the
elaboration on their basis by our jurists, on the other hand. In deploring this failure, we
neither wish to deny the value of the opinions of our Fuqaha nor to slight these venerable
men in any way. On the contrary, we believe their work to constitute a great asset, a prized
treasure of which we should feel proud. We believe that we should pore over the subtleties
of their learning, and should drive the utmost benefit from it. What is necessary, however,
is that we should at the same time be very clear about the following important points.
i) That the Qur'an and the Sunnah constitute the Shari'ah of God which is binding on
Muslims that these two alone form the ideological and practical basis of life for the Muslim
nation.
ii) That there is nothing strange in the fact that disagreements exist among people with
regard to the interpretation of certain Quranic verses, or the authenticity of certain
Prophetic traditions of their rendering, so long as people do not abandon the use of their
intellects. What is important is that these disagreements should remain subject to
arguments based on the texts of the Qur'an and Sunnah, and that the opinions of particular
schools of Muslim Law on controversial points should not either owing to negligence or
ignorance, be elevated to the point where they begin to be considered more authoritative
than the texts of the Qur'an or Sunnah. Such a distorted vies impairs our proper attitude
towards the injunctions of God and His Prophet, as laid down in the Quranic verse:
Judge between them by that which God hath revealed and follow not their desires (Al-
Qur'an 5: 49)
Moreover, we should be careful that our attitudes on controversial points do not harden to
such a degree that they prevent Muslims applying their minds to the understanding of the
Shari'ah, although the Shari'ah itself remains the criterion for all differences of opinion; and
every generations of Muslims has an ordinance from God to remain in direct and constant
contact with the Shari'ah, as embodied in the Qur'an and the Sunnah:
… and if ye have a dispute concerning any matter, refer it to God and Messenger (Al-Qur'an
4: 59)
Abandoning reference to the Qur'an and attaching an exaggerated importance to the
opinion of one's own school of law implies also the adoption of irrational attitude towards
our Fuqaha of past generations who though they disagreed among themselves, did not
claim infallibility for their opinions. Their disagreements where based on the texts of the
Shari'ah available to them and with regard to its interpretation. It never occurred to our
Fuqaha, however, that would become an impregnable wall preventing the radiation of the
light of the Qur'an and the Sunnah or that they would be depriving all other Muslims of the
right to applying their intellects to the understanding of the Qur'an and the Sunnah. Imam
Malek has epitomized his view on the question in these fine words:
I am a human being. I can be write and I can be wrong. Examine every one of my opinions:
accept those which conform to Qur'an and Sunnah, reject those which do not conform to the
Qur'an and Sunnah.
iii) That the Shari'ah of god, as embodied in the Qur'an and Sunnah does not bind man kind
in muamalat (worldly dealings) except by providing a few broad principles of guidance and a
limited number of injunctions.
The Shari'ah only rarely concerns itself with details. The confinement of the Shari'ah to
broad principles and its silence in other spheres are due to divine wisdom and mercy, for
the divine knowledge embraces human life in its totality: In all its spheres, in all stages of
its development, in all periods of human history. Now, God was not incapable of laying
down, had he considered it good to do so, an injunction for every minor issue and a law for
every new problem that might arise. The fact that the Shari'ah is silent on these points-and
we should bear in mind that, as the Qur'an remarks, "God is not forgetful"-means only that
the application of the general injunction Shari'ah to the multifarious details of human life,
and the confrontation of new problems according to dictates of maslahah (public good) have
been left to the discretion of the body of conscious Muslims. Moreover, if the Shari'ah has
refrained from laying things down definitively in the form of clear-cut injunctions regarding
matters about which God knew that people would disagree, and if it has not fixed
regulations in respect of the problems which, of course, God knew would arise in human
existence, all this due to God's mercy, for He wanted comfort, not discomfort, for human
beings, and breadth, not narrowness in human life. The Qur'an has said;
God desireth for you ease: He desireth not hardship for you. (Al-Qur'an 11:185)
Problem confronting the Muslim World

By Dr. Said Ramadan, Director, Islamic Center, Geneva
"Which in your opinion are the major problems of the Muslim World, the problems upon
which the attention of the workers of Islam should be focused and, to the solution of which
they should devote all, or the greater part of their endeavors?" This was my question to my
friend who has been working for Islam, for the last thirty years. For a while he remained
silent and then replied: "I considered three problems to be responsible for the disastrous
state of affaires in the Muslim world: first the failure to distinguish between what God laid
down in his Book and the Tradition of His Prophet, and the elaboration's derived therefrom
by our leggiest; second, the plight of womenfolk in Muslim so Muslim society and the
perversion of the meaning of "obedience to those in authority" to denote abject
subservience and shameless acquiescence to rulers, regardless of the extent of the wrongs
that they might commit and the injustices which they might perpetrate."
This observation was followed by a long discussion which centered upon these questions,
with a view to the full appreciation of the importance of these problems and the realization
of the need for earnest, unrelenting endeavor toward their solution. During the discussion, I
found myself keenly responsive to the need for appreciation of the importance of these
problems, and as my learned friend held forth on the subject, I had the feeling of a doctor's
fingers probing sore spots. For these three problems do indeed occupy a pre-eminent
position among those numerous maladies which afflict our body-politic. Moreover, these
maladies are becoming chronic ones and as time passes we are getting used to them.
1. Distinction Between Shari'ah and Fiqh

The first of these problems is our failure to distinguish between what has been laid down by
God in His Book and the Tradition of the Prophet (Sunnah) on the one hand, and the
elaboration on their basis by our jurists, on the other hand. In deploring this failure, we
neither wish to deny the value of the opinions of our Fuqaha nor to slight these venerable
men in any way. On the contrary, we believe their work to constitute a great asset, a prized
treasure of which we should feel proud. We believe that we should pore over the subtleties
of their learning, and should drive the utmost benefit from it. What is necessary, however,
is that we should at the same time be very clear about the following important points.
i) That the Qur'an and the Sunnah constitute the Shari'ah of God which is binding on
Muslims that these two alone form the ideological and practical basis of life for the Muslim
nation.
ii) That there is nothing strange in the fact that disagreements exist among people with
regard to the interpretation of certain Quranic verses, or the authenticity of certain
Prophetic traditions of their rendering, so long as people do not abandon the use of their
intellects. What is important is that these disagreements should remain subject to
arguments based on the texts of the Qur'an and Sunnah, and that the opinions of particular
schools of Muslim Law on controversial points should not either owing to negligence or
ignorance, be elevated to the point where they begin to be considered more authoritative
than the texts of the Qur'an or Sunnah. Such a distorted vies impairs our proper attitude
towards the injunctions of God and His Prophet, as laid down in the Quranic verse:
Judge between them by that which God hath revealed and follow not their desires (Al-
Qur'an 5: 49)
Moreover, we should be careful that our attitudes on controversial points do not harden to
such a degree that they prevent Muslims applying their minds to the understanding of the
Shari'ah, although the Shari'ah itself remains the criterion for all differences of opinion; and
every generations of Muslims has an ordinance from God to remain in direct and constant
contact with the Shari'ah, as embodied in the Qur'an and the Sunnah:
… and if ye have a dispute concerning any matter, refer it to God and Messenger (Al-Qur'an
4: 59)
Abandoning reference to the Qur'an and attaching an exaggerated importance to the
opinion of one's own school of law implies also the adoption of irrational attitude towards
our Fuqaha of past generations who though they disagreed among themselves, did not
claim infallibility for their opinions. Their disagreements where based on the texts of the
Shari'ah available to them and with regard to its interpretation. It never occurred to our
Fuqaha, however, that would become an impregnable wall preventing the radiation of the
light of the Qur'an and the Sunnah or that they would be depriving all other Muslims of the
right to applying their intellects to the understanding of the Qur'an and the Sunnah. Imam
Malek has epitomized his view on the question in these fine words:
I am a human being. I can be write and I can be wrong. Examine every one of my opinions:
accept those which conform to Qur'an and Sunnah, reject those which do not conform to the
Qur'an and Sunnah.
iii) That the Shari'ah of god, as embodied in the Qur'an and Sunnah does not bind man kind
in muamalat (worldly dealings) except by providing a few broad principles of guidance and a
limited number of injunctions.
The Shari'ah only rarely concerns itself with details. The confinement of the Shari'ah to
broad principles and its silence in other spheres are due to divine wisdom and mercy, for
the divine knowledge embraces human life in its totality: In all its spheres, in all stages of
its development, in all periods of human history. Now, God was not incapable of laying
down, had he considered it good to do so, an injunction for every minor issue and a law for
every new problem that might arise. The fact that the Shari'ah is silent on these points-and
we should bear in mind that, as the Qur'an remarks, "God is not forgetful"-means only that
the application of the general injunction Shari'ah to the multifarious details of human life,
and the confrontation of new problems according to dictates of maslahah (public good) have
been left to the discretion of the body of conscious Muslims. Moreover, if the Shari'ah has
refrained from laying things down definitively in the form of clear-cut injunctions regarding
matters about which God knew that people would disagree, and if it has not fixed
regulations in respect of the problems which, of course, God knew would arise in human
existence, all this due to God's mercy, for He wanted comfort, not discomfort, for human
beings, and breadth, not narrowness in human life. The Qur'an has said;
God desireth for you ease: He desireth not hardship for you. (Al-Qur'an 11:185)
The Prophet explained this by saying:
God has enjoined certain enjoinments, so do not transgress them. He has prohibited certain
things, so do not fall into them. He has remained silent about many things, out of Mercy
and deliberateness, as he never forgets, so do not ask me about them.
The Prophet-peace be unto him- stressed this point repeatedly. Most illustrative of this basic
characteristic of the Shari'ah, is his authentic saying:
Leave me as long as I leave you. Too much questioning brought only disaster upon people
before you. Only if I forbid you doing anything, then do not do it, and if I order you to do
something, then try to do whatever you can of it.
Since God has granted this freedom, and has left a wide margin of choice open to human
being from sheer beneficence and mercy, it would be utter ingratitude and stark disregard
for the spirit of the Shari'ah, to impose upon its ageless and merciful features, the variety of
rigorous regulations in matters of minor detail which has been formulated by our leggiest in
the past. These interpretations and elaboration of the Fiqh have been gradually
misconceived as matters of indisputable validity, so much so that as soon as the word
'Shari'ah' is mentioned they come instantly to mind and impair the eternal freshness of the
beauty and grace of divine mercy.
We who strive for the Islamic regeneration should make it abundantly clear to people that:
this is the Shari'ah - the lenient Shari'ah - embodied in the Qur'an and the Sunnah, and God
binds you to this and nothings else. As for our juristic heritage, handed down to us by our
great ancestors who earnestly endeavored to interpret the Shari'ah in the face of continually
new problems of life regarding which the Shari'ah had observed silence, in the light of
Maslahah (public good) and with a due regard for the circumstances of their age - while
profiting from this heritage, our attitude towards the Shari'ah should nevertheless be the
same as that of our ancestors. Following in their footsteps, we should apply our minds to
understand it. We should also treat the circumstances of our epoch as they did theirs, and
try to face our special problems in the light of Maslahah, as they did. And bearing all this is
in mind, our recourse to the vast, rich Fiqh heritage at our disposal should serve to
strengthen our bonds with the Qur'an and the Sunnah, rather than preventing direct
reference to these two original sources? It should help us to apply the Qur'an and the
Sunnah to the circumstance in which we live in the same way as our ancestors did for their
part. It is all together unrealistic to seek from our leggiest of the past solutions to the
problems of our own age - an age of which they could have no knowledge - or to impose
upon ourselves regulations devised to fit circumstances which no longer exist. And it is all
together unworthy to abandon the use of our intellects to understand Islam (for it is that
power of rational discernment, with which each one of us has been endowed, which makes
us answerable to God) thereby reducing ourselves to the position of parasites, living
perpetually on the fruits of labor bequeathed to us by our ancestors- by their heavy
intellectual toils, unrelenting efforts and patient endeavor.
It can be asked: "Where do you draw the line of demarcation between the Qur'an and the
Sunnah, and the interpretations therefore of the Fuqaha? Are the interpretations not the
attempts of the Fuqaha to arrive at the true intent of the Qur'an and the Sunnah?" These
are certainly reasonable questions. The reply is that our desire to distinguish between the
two does not mean that we wish to dispense with Fiqh as such. On the contrary, all we want
is for it to be clear that the texts of the Qur'an and the Sunnah are the true sources of
guidance, the norms for our lives; that they alone constitute the Shari'ah which is binding
upon us; that all opinions must be weighed with the Qur'an and the Sunnah as criteria; that
every human being after the holly Prophet is fallible; that in every matter where there are
no texts to bind us, the consideration of Maslahah alone is binding; and that the precepts
for Maslahah change with changing circumstances and ages-as earlier Fuqaha have said : "
Where there is Maslahah there is the God."
This distinction between the divine Shari'ah (as embodied in the Qur'an and the Sunnah)
which is eternally binding and the details opined in its light by the Fuqaha should have a
thoroughly healthy influence on contemporary Muslims, in a number of ways. It invests
Islamic ideology with simplicity that should help cultivate deep in the hearts of Muslims
genuine faith in their lord and in their Prophet. It restores the clarity of the original massage
of Islam. It restores also the luster to the Islamic ideology which it owes to the words of
God and His prophet. Its provides a rallying ground for all Muslims, notwithstanding the
existence of various schools of thought among them. Moreover, it should keep Islam intact
in its original broad and vigorous form, in a form which provides scope and ease for human
mind, and not discomfort and restriction.
It may also be asked: "Do you want to make the Qur'an and the Sunnah a tool of any
imposters who step forward to interpret them according to their whims and desires once the
door for their interpretation is flung open?" The reply, obviously, is "No." For when we talk
of 'opinions' in Islamic matters, we mean 'opinions' and not whims and desires, and we
presume piety and godliness to be basic with regard to problems relating to Islam. Further,
there is no harm in trying to devise sound rules, of a scientific as well as of an
administrative nature, which could effectively ensure specialization in studies relating to the
Shari'ah as embodied in the Qur'an and the Sunnah, just as is attempted by all legal
systems the world over.
Rather, it is our duty to ensure this. We shall thus have saved the Shari'ah from pollution by
the whims and desires of false claimants to its interpretation. At the same time, however,
we should try to ensure that specialization does not lead to the creation of priesthood in
Muslim society, and that the door remains open for the consideration of all opinions,
whatever their sources, purely on the basis of their intrinsic worth.
The second problem is that of the position of the womenfolk in Muslim society. In this
regard also, as in regard to our social life as a whole, we are in a state of complete chaos,
hotchpotch of competing forces; the remaining Islamic influence, our inherited traditions
and extraneous influences which have crept into our life as a result of the enveloping wave
of blind imitation of the West. This has created a myriad of problems in Muslim society,
among which deserving of special attention is the problem of womenfolk. This is not so
merely because women constitute something more than half the community. It is
particularly pressing because it is a problem which affects the family, the very basis of our
social life, and because of the deep and inherent relationship that it has with those factors
which make for the cohesion of our society. It is in fact a problem that affects in its
ramification most of aspects of our national orientation.
It is strange that we Muslims should neglect the important position of women. The Shariah
has placed such emphasis on it in connection with the lives of those great men whom God
entrusted with high tasks and whom He chose as the recipients of His revelation-those noble
souls ordained to deliver God's message to mankind. In the story of Moses it is his mother,
Pharaoh's wife and the daughter of Madyan who constitute great figures. In the story of
Jesus, his virtuous mother is a great pillar of the story. The principal nobility and virtue
among those who stood faithfully by the side of Muhammad (SAWS) in his apostolic mission
was Khadijah, the compassionate and noble lady of Mecca. Indeed, the numerous verses of
the Qur'an and the large number of prophetic traditions which speak of woman's status and
of her rights and responsibilities, are quite sufficient to determine our attitude towards
womanhood. The Holy Qur'an refers to their position while comparing it with the position of
men in the sight of God and proclaims it to be one of complete equality:
"I shall not let the work of worker, male or female, be lost. You issue from one
another."(11: 195).
On other occasion it mentions the rights and duties of women as akin to those of men
before mentioning man's administrative leadership of the family.
"And they (women) have rights similar to those (of men), according to what is equitable,
and men are a degree above them." (11:228). On still another occasion we find Islam
pointedly stressing gentleness and good behavior in the treatment of women. Said the
Prophet in his last address:
"I advise you to be good to women."
It is not my intention to discuss the position of womenfolk in all its ramifications. What I
have to say will be quite brief, but nevertheless of serious importance, for the time has
come when we should be very clear as a number of questions relating to this problem and
attention to the solution thereof. It should be very clear in our minds that woman, according
to Islam, is intrinsically like her male partner. She is a human being endowed with the same
essence of nobility which is shared by the whole human species. As far as human quality is
concerned, men and women are absolutely alike:
"O mankind! Revere your Lord, Who created you from a soul and from that created its
mate, Who thereof brought forth multitude of men and women." (4:1).
Moreover, each one, man and woman, will be held responsible for his own individual self:
"….and every one of them will come to God, on the day of Resurrection, alone." (19:95).
This means that those who either believe, or whose behavior reveals the unconscious
concept that woman is an inferior being who has to be subjugated, that she is merely an
instrument for the self-indulgence of man-such people require a radical reorientation of their
attitude towards womankind. Such people, by clinging to such unhealthy ideas, or through
such unhealthy conduct, are grossly distorting God-given human nature and killing
potentialities of thought, feeling and vitality in their partners of life.
It should also be clear that the unbridled self-will of certain women in other societies, or of
those of our own who blindly imitate them, should not be countered by extremism on our
part: by imposing on women what God has not imposed upon them, or by forbidding them
what God has not forbidden. We should remember that women in the western world began
to lean in the wrong direction from definite causes, at least some of which were undoubtedly
related to social injustices, under the dead weight of which, women had languished for so
long, imprisoned and ignorant, with no will or personality of their own. They revolted
against this injustice-and this revolt was a completely natural and genuine one. Then they
began to lean in the wrong direction, becoming stubborn and headstrong. The same type
injustice continues to have its strong-holds in our own society, where there are still people,
though very few, who are proud of the fact that since the wedding night when their wives
were driven home, they have not seen the street once. There are still other who consider
themselves entitled to beat their wives if they dare to disagree with their views and advance
an opinion of their own. Again, there are those who spend year after year with their wives
and daughters without sitting down to discuss a problem with them or attempting to make
them share their views.
Who would claim that any of these has anything to do with Islam? On the contrary, it is
Islam which elevated women to heights of prestige which have neither precedent nor
parallel in human history. At a time when womanhood in the West was held in such a state
of impurity that even a woman's was an evil pollution of the Bible, Qur'anic manuscripts
were held in the trust of the Lady Hafsa at Medina. At a time when Romans held conference
to debate whether woman was a "person" or a "thing", Muhammad (SAWS) stood up to
declare that "women are but the sisters of men" and to shatter the pre-Islamic era of
darkness and injustice, so that a woman could argue with the Holy Peophet in the courtyard
of the mosque and say, "I have been deputed to you on behalf of woman!" Indeed, it was
Islam which, for the first time, established the status of women full-fledged members of
human society and granted them the right to owe whatever they earned since the Qru'an
proclaimed:
"Unto men of fortune from that which they have earned, and unto women of fortune from
that which they have earned." (4:32).
Whatever standards of decency Islam has laid down in matters of dress and behavior
between man and woman, they are all with the sole intention of ensuring the sanctity of the
home and the inviolability of marital intimacy. Not one of these standards could ever imply
an attitude directed towards humiliation of woman as regards her social status or her role in
her relationship with man. When a newly married girl complained to the Prophet that her
father had chosen her husband without consulting her, he immediately gave her permission
to annul her marriage, to which she replied: "I have no personal objection to my husband
and I accept him, but I wanted it to be known that a father has no right to impose a
husband upon his daughter without her consent." In contrast to the then prevailing
ignorance and plutocracy of tribal traditions, Muhammad (SAWS) enjoined the quest of
knowledge as an integral part of faith, for men and women alike. He praised highly the
women of Ansar with:
"Blessed be those whose modesty never prevented them from seeking knowledge.
Far from being rough or rude, Muhammad's (SAWS) consciousness of women's tenderness
and delicacy was so intense that even in the impelling harshness of the desert, he gently
appealed to Anjaashah, the caravan driver:
"O Anjashah, slow down a little, for thy camels are carrying glasses!"
This is only a glimpse of Islam: thus, how could we possibly be justified in so grossly
distorting it by all sorts of misconceived traditions and beliefs? What could be more unjust,
whether to Islam or to ourselves, than to misrepresent as we do, or rather to deform, the
beautiful features of Islam? And consider when?-at a time when we are encountering the
movement of so-called progress and emancipation, which is advancing like a storm and
wreaking havoc in our lives.
It is imperative to realize that the really weak points in our society are those which provide
genuine cause for feminine revolt, which can subsequently take an extremist turn and
ultimately lead to unbridled feminine self-will. If we are serious about resisting this
unhealthy trends, it is our duty to call a stop where God has done so, and combat the
deceptive, misleading elements we are encountering by adhering to what God has laid down
for us. We should neither depart from anything which God has decreed out of weakness or
compromise, nor add anything to it from extremism and severity.
These things are relevance for all Muslims. But they are of particular importance to those
who are actively devoted to the revival of Islam. I fervently wish that such people would put
these ideas into effect; would stop at the point where the Shariah stops, and have the
courage to proclaim and insist on what God has made binding on us, and that alone. This is
essential in creating a strong wall around whatever of virtue and purity remains in our
society. It is to be hoped that by so doing the workers for the cause of Islam will have
created a real barrier, one strengthened by the word of God and His Prophet, against the
sweeping, devastating storm which threatens Islam today. For, if matters are not clarified,
and confusion is allowed to reign as it does today, if the good aspects are not separated
from the bad, both in theory and by good example, the result of this confusion is bound to
be this: the good elements will be mistaken for bad, and both will be swept away by the
rising storm. This is not be in the least surprising. For there is neither a divine code which is
being sincerely adhered to, nor is there any social system based on experience and clarity of
outlook, and God has not appointed a gendarme to regulate the conflicting traffic of good
and evil.
Does Islam provide for human rights?

By Shah Abdul Hannan
It is alleged sometimes by some quarters that Islam does not guarantee

adequate level of human or fundamental rights. This misgiving has become
quite widespread in the absence of enough clarification and publicity of
Islamic viewpoint. This misgiving has been strengthened by some extreme
manifestations of Islamists such as some of the activists of the Taliban
movement and administration in Kabul.
However, this perception is not true. It is mostly because of
misunderstanding and lack of knowledge of the works of mainstream
Islamists. In support of the view that Islam has provided for all necessary
human rights for all irrespective of gender or religion, I will present 3 (three)
proofs from current works.
In the constitution of Pakistan of 1956 and 1973, a list of fundamental rights
have been enumerated which will be available to all citizens, whether they
are Muslims or non-Muslims, men or women. This constitution was in part
prepared and fully supported by the Ulama of all groups in Pakistan.
In the constitution of Iran, which was prepared by the Ulama of Iran, a
similar list of fundamental and human rights have been provided for and this
constitution was adopted by a referendum with 98% majority. The lists of
rights in the aforesaid 2 (two) constitutions include almost all rights as may
be seen in any other constitution. These rights include right to life, property;
right of association, movement; freedom from torture and unjust detention;
equality of opportunity, freedom of religion and all other necessary rights.
These constitutions were prepared after long debate in the light of the texts
of the Qur'an and Sunnah and all other relevant issues by leading Ulama of
these countries and we can not accept individual opinion of a few people
against such broad majority.
Again many writers have written on human rights and upheld that Islam
does give all necessary rights for all persons. In this connection of the many
books written on the subjects, I refer to two books by Sayyid Abul A'la
Maududi (Human Rights in Islam) and Muhammad Salahuddin (Fundamental
Rights in Islam in Urdu).
It is therefore clear from the above that Islam does give all basic human
rights to all though there are some violations in some places and some
groups have misunderstanding. It is the duty of the mainstream Islamists to
clarify the issue in details to all.
Towards an Islamic Jurisprudence of the Environment

Author: Prof. Mustafa Abu-Sway
This section provides detailed accounts from the Qur'an and the Sunnah regarding the
protection of the following areas: human beings, animals, plants, land, water, and air.
1. Human Beings:
Despite the differences regarding the inclusion of human beings as a part of the
environment, this paper consider humans to be part of the ecological system. I have
adopted this position though I know that the rest of the ecosystem is subservient to
humans.
Islam called for the protection of the human being. The Shari'ah specifically called for the
protection of five things pertaining to humans: life, religion, offspring, intellect, and
property.
Islam emphasized the sanctity of human life in the strongest possible terms:
"On that account: We ordained for the Children of Israel that if any one slew a person-
unless it be for murder or for spreading mischief in the land- it would be as if he slew the
whole people. And if any one saved a life, it would be as if he saved the life of the whole
people…" Qur'an, 5:35
The rulings of the Shari'ah aim at preserving the life of the human being including
murderers. It is a well established fact that punishment for murder is death penalty.
Nevertheless, the Qur'an encouraged the family of the murdered person to forfeit their right
that the murderer be executed:
"Nor take life-which God has made sacred-except for just cause. And if anyone is slain
wrongfully, we given his heir authority (to demand Qisas or to forgive): but let him not
exceed bounds in the matter of taking life; for he is helped (by the Law)." Qur'an, 17:33
For the same reason, committing suicide is prohibited:
"…Nor kill (or destroy) yourselves: for verily God hath been to you Most Merciful!" Qur'an,
4:29
Moreover, a fetus has a life which should be preserved. Abortion is prohibited unless for a
permitted reason (ex. the life of the mother is endangered). In Islamic jurisprudence, there
is blood money to be paid by a person who kills a fetus intentionally or accidentally.
Wars remain a major factor in killing human beings and in the destruction of the
environment. The Islamic position, which is quite to the contrary of the picture depicted by
the western media, states in clear terms that peace is the norm and war is the exception.
The Prophet [S.A.A.S] prohibited that a Muslim wishes to confront the enemies in the
battlefield.[7] I understand that the raison d'etre of this hadith is to give priority to peaceful
solutions whenever conflicts surface between Muslims and other fellow humans. In fact, the
first thirteen years of the history of Islam in Makkah reflect passive resistance.
Nevertheless, self-defense is permitted to protect Islam and Muslims. If Muslims have to go
to war, then they have to abide by Islamic codes of conduct during warfare:
"Fight in the cause of God those who fight you, but do not transgress limits; for God loveth
not transgressors." Qur'an, 2:190
The essential limits that should not be transgressed are best expressed by Abu Bakr, the
first Caliph, in his address to Yazid Ibn Abu Sufian, the commander of the army that went
north to Sham [i.e. Greater Syria]:
"…And I instruct you [to fulfill the following] ten [orders]: Do not kill a woman, nor a child,
nor an old man; do not cut down fruitful trees; do not destroy [land or housing] in use; do
not kill a goat or a camel unless for food; do not flood palm trees [with water] nor burn
them down …"[8]
Such a quotation, which reflects the ethos of the Shari'ah, defines the norm that the life of
those who do not engage themselves directly in war should be spared. Protection is also
extended to animals and plants; they should not be used as part of collective punishment.
Accordingly, all weapons of mass destruction are unacceptable from an Islamic perspective.
All chemical, biological and nuclear weapons should be prohibited world wide without any
exceptions. It is not enough to have nuclear non-proliferation treaties that exempt certain
countries because they did not sign. If the super powers only head to the fact that humanity
needs a safer and cleaner earth! No country should be able to stock weapons of mass
destruction or non-conventional weapons.
Here I find myself at odds with a statement of Dr. Yusuf Al-Qaradawi. He said, in one of his
most recent books, that "regarding the kinds of weapons that are used in fighting, how to
make them and how to train [soldiers] how to use them, etc., is not an issue to [be settled
by] religion; it is the business of the ministry of defense and the headquarters of the armed
forces."[9]
I do believe that Dr. Al-Qaradawi is troubled by what is happening to Muslims around the
world, and that he aims at allowing room for decision makers in the Islamic world to
consider measures that would deter aggressors from attacking them with weapons of mass
destruction. I think that this is a legitimate concern, yet the statement is very broad and it
might be misinterpreted by those in office. On the other hand, Muslim scholars should voice
their concern about these issues and not to give a free hand to the military apparatus which
could waste the resources of the Ummah in compiling weapons, rather than investing them
in the re-establishment of a leading Islamic civilization.
We should remember that the American use of atomic bombs against Japan, during World
War II, is a much protested and regretted act. The increase in ecological awareness is
making it difficult for governments to continue its nuclear programs. There was a global
protest against the French nuclear tests that took place in the French Polynesian Islands.
Though it is not good enough, it appears that the French government pledged an end to
nuclear tests.
Not only weapons on that scale should be prohibited, but also weapons such as anti-
personnel mines should be banned. There is nothing that could justify the killing or the
maiming of human beings by these mines. Millions of them are spread around the world;
only concerted efforts on a global level might bring some relief and hope. While one prays
for an end to armed conflicts, one should remember that killing the enemy during war is not
an end in itself.
The fact the Muslims are subjected to different forms of attacks that range from ethnic
cleansing to discrimination in the work place, should not be used by Muslims as a pretext to
behave in the same way as their enemies:
"O ye who believe! Stand out firmly for God, as witnesses to fair dealing, and let not the
hatred of others to you make you swerve to wrong and depart from Justice. Be just: that is
next to piety: and fear God. For God is well-acquainted with all that ye do." Qur'an, 5:9
Many of the conflicts around the world were/are fueled by inhuman ideologies that stress
the supremacy of one "race" over the other. This form of social Darwinism was translated
into a systematic program by the Nazis to annihilate other races. The Serbs performed
some of the most heinous crimes against humanity in Bosnia and Kosova, despite the fact
that the "race" is the same! It is clear that Muslims in these cases were victimized because
of their faith.
The Islamic world view does not permit any ideas of negative value judgment regarding the
biological differences in terms of color and shape. They are to be perceived positively as
Signs pointing to God:
"And among His Signs is the creation of heavens and the earth, and the variations in your
languages and your colors: verily in that are Signs for those who know." Qur'an, 30:22
The differences in the colors of people function exactly like those between animals, plants
and inanimate objects:
"Seest thou not that God sends down rain from the sky? With it We then bring out produce
of various colors. And in the mountains are tracts white and red, of various shades of color,
and black intense in hue. And so amongst men and crawling creatures and cattle, are they
of various colors. Those truly fear God, among His Servants, who have knowledge: for God
is Exalted in Might, Oft-Forgiving." Qur'an, 35:27-28
Those who know will appreciate the differences; those who are ignorant do not. There aren't
many races; there is one human "race" reflecting many prisms. The beautiful different
colors and shapes of flowers do not invite us to damage all but one. They are there as gifts
and Signs from God to help us remember Him. As such, they should be appreciated and
preserved.
The only legitimate differentiation in Islam is based upon moral, not physical character:
"O mankind! We created you from a single (pair) of a male and female, and made you into
nations and tribes, that ye may know each other (Not that ye may despise each other).
Verily the most honored of you in the sight of God is (he who is) the most righteous of you.
And God has full knowledge and is well acquainted (with all things)." Qur'an, 49:13
The compendiums of hadith are full with reports that reflect the spirit of brotherhood
regardless of the physical appearances. The companions of the Prophet himself reflect a
rainbow of colors: they comprised Muhammad the Arab, Suhayb the Roman, Suleiman the
Persian and Bilal the Ethiopian.
In addition, Islam was pluralistic in its relationship with the "other" from the outset. It is
already established that if the "otherness" is based upon differences in color, it does not
generate a conflict. In addition, if the "otherness" is based upon a different belief, such as
the Jews and the Christians, it is also tolerated in the Islamic world-view. Tolerance is
emphasized in the Qur'an and in the Sunnah in many contexts:
"God forbids you not, with regard to those who fight you not for (your) Faith nor drive you
out of your homes, from dealing kindly and justly with them: for God loveth those who are
just." Qur'an, 60:8
Where other systems of belief and communities failed to deal justly with the "other" who
lives amongst them, Islam succeeded. One may compare the history of the "other" in the
Islamic state and that of the "other" in Europe. The best case is that of the "other" as a Jew!
There are ways and means to protect the life of the human being in Islam. There is a
broadly stated principle in the Qur'an which prohibits all harm: "…And make not your own
hands contribute to (your) destruction; but do good; for God loveth those who do good."
Qur'an, 2:195
This verse highlights the dangers that fall within the responsibility of the individual towards
oneself. They include taking drugs, alcohol, or any activity which is contrary to natural
disposition such as homosexuality. Islam is amongst the minority (the Catholic church
condemns the act but not the homosexual) that condemns homosexuality; some reformed
synagogues and some Protestant churches allow marriages between the members of the
same sex. Taken to an extreme, homosexuality leads to the annihilation of mankind!
Add to this gloomy picture is adultery and common use of needles in drugs. As such, the
number of people contracting AIDS is mushrooming. Against this background, the Islamic
way of life provides a safety valve which, if accepted, can save humanity.
[Currently, he is in the Department of Philosophy at al-Quds University, Jerusalem. He was
formerly a Senior Research Fellow at the International Institute of Islamic Thought and
Civilisation (ISTAC) in Kuala Lumpur. He was also the head of the Department of Philosophy
at the International Islamic University Malaysia (IIUM). He has written books such as Al-
Ghazzaliyy: A Study in Islamic Epistemology (1996)]
DEMOCRACY IN ISLAMIC PERSPECTIVE
Shah Abdul Hannan

Democracy is a commonly known word all over the world. Most of the political movements in
the world have made it their goal to establish this system in their respective countries.
Democracy is the most popular and accepted political system in the modern world. Yet, there
exists some difference of opinion among the Islamic groups on democracy. Democracy and
human rights have occupied very important position in the political agenda of many of the
Islamic parties. However, some of the parties and people do not accept it, since democracy
speaks of sovereignty of the people.
In this context, we need careful and deep analysis on this issue. We need to understand the issue
avoiding the minor technicalities. As we see, Islamic parties and Islamic scholars of the modern
world think of a political system wherein government will run the country through Parliament.
They also want freedom of expression, voting right of the people, rule of law, independent &
free judiciary, free press, fundamental human rights etc. These are also the pre-requisites of the
democratic system. It is therefore, apparent on a deeper analysis that the concept of state and
govt. of Islamic Parties are in conformity with the principles of democracy.
Theoretically speaking, Islam speaks of sovereignty of Allah, while western democracy
advocates that sovereignty belongs to people. However, all political thinkers do not share the
same view of sovereignty. Some political scientists even argue that there is no need of concept
sovereignty at all. Even the concept of sovereignty is not highlighted in the books which discuss
democracy though sovereignty is discussed in great detail as a political concept in the books of
political science. In this context, we feel it necessary to quote from the writings of Allama
Yousuf Al Qardawi, an eminent Islamic scholar of the present time. He wrote:
“ The fear of some people here that democracy makes the people a source of power and even
legislation (although legislation is Allah’s alone) should not be heeded here, because we are
supposed to be speaking of a people that in its majority and has accepted Allah as its Lord,
Mohammad as its Prophet and Islam as its Religion. Such a people would not be expected to pass
a legislation that contradicts Islam and its incontestable principles and conclusive rules.”
“Anyway, these fears can be overcome by one article stipulating that any legislation
contradicting the incontestable provisions of Islam shall be null and void because Islam is the
religion of the State and the source of legitimacy of all its institutions and therefore may no be
contradicted, as a branch may not run against the main stream.”
“It should be known that the acceptance of the principle that legislation or rule belong to Allah
does not rob the Nation of its right to seek for itself the codes necessary to regulate its ever-
changing life and earthly affairs.”
“What we seek is that legislations and codes be within the limits of the flawless texts and the
over all objectives of Sharia and the Islamic Message. The binding texts are very few, while the
area of “permissibility” or legislative free space is quite wide and the texts themselves are so
flexible and capacious as to accommodate more than one understanding and accept more than
one interpretation, which leads to the existence of several schools and philosophies within the
expansive framework of Islam.” (Quoted from ‘Priorities of the Islamic Movement in the
Coming Phase’, Chapter : The movement and political Freedom and Democracy)
We find many Islamic scholars accepted the idea of democracy in Islam though under certain
conditions. Dr. Abu Said Nuruddin has written in his book ‘Mohakobi Iqbal’, ( Iqbal the Great
Poet) that Allama Iqbal, was not happy with the democratic system because of its secularist
stance but he suggested in his writings that there was no alternative to democracy. In his 6th
speech on ‘Reconstruction of religious thought in Islam’, Allama Iqbal stated that Islamic state is
established on the principles of freedom, equality, and the absolute principles of stability.
Therefore the principles of democratic rule is not only similar with the fundamental aspects of
Islam rather the executing powers are enhanced in the Muslim world (Mohakabi Iqbal, Iqbal the
Great Poet by Dr. Abu Said Nuruddin)
Iqbal observed, should the foundation of democracy rests upon spiritual and moral values, it
would be the best political system. He wrote in the "The New Era" on its 28th July, 1917 issue:
that democracy was born in Europe from economic renaissance that took place in most of its
societies…….But Islamic democracy is not developed from the idea of economic advancement
rather it is a spiritual principle that comes from the principle that everybody is a source of power
whose possibilities can be developed through virtue and character”. [Mohakabi Iqbal ( Iqbal the
Great Poet) by Dr. Abu Said Nuruddin, page -239)
That means according to Iqbal Islam prescribes democracy under the law of Allah.
We see Moulana Maududi, fifty years ago from now, in his book “Political theory of Islam”
used the term “Theo-democracy” for Islamic state. He didn’t deny the term ‘democracy’. Rather
he accepted democracy while this system will work under the sovereignty of Allah. We also see
that in the first Islamic constitution of the present world, the term democracy was accepted with
the consent of Islamic scholars (ulema). In the preamble, the term democracy was accepted in the
following manner :
“ Wherein the principles of democracy freedom, equality, tolerance and social justice, as
enunciated by Islam, should be fully observed”. (from the preamble of the constitution of 1956)
In the 1973 constitution the same position was maintained.
“Wherein the principles of democracy freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed”. (from the preamble of the constitution of 1973)
This means that democracy has been accepted within the limits of Islam so that in the name of
democracy Islamic principles cannot be violated. Islamic Scholars and Islamic Politicians have
come to accept the word democracy and what it means within these limits.
Allama Yousuf Al Qardawi in his book “ Priorities of the Islamic Movement In the Coming
Phase” has titled one of its chapters as “ The Movement and Political Freedom and Democracy”.
In this book he has shown that Islam does not allow any kind of autocracy or monarchy. He also
showed that Islam spreads through political freedom. He stated that Islam unlike democracy is a
complete code of life, which encompasses many more vital issues of human needs. Above all, he
thinks democracy is consistent with Islam and the fundamental rights of mankind prescribed in
Islam can be ensured through democracy. He has advocated in favor of democratic system and
political freedom. But he suggested to introduce a clause in the constitution to the effect that no
law will be passed contrary to the injunctions of the Quran and Sunnah. This clause will act as
guarantee against the fear of some people that anti Islamic law may be passed under the cover of
democracy. Dr. Qardawi writes:
“ It is the duty of the ( Islamic) Movement in the coming phase to stand firm against totalitarian
and dictatorial rule, political despotism and usurpation of people’s rights. The movement should
always stand by political freedom, as represented by true , not false, democracy. It should flatly
declare its refusal of tyrants and steer clear of all dictators, even if some tyrant appears to have
good intentions towards it for some gain and for a time that is usually short, as has been shown
by experience.
The Prophet (SAWS) said , “ When you see my Nation fall victim to fear and does not say to
wrong-doer , “ You are wrong”, then you may lose hope in them. “ So how about a regime that
forces people to say to a conceited wrongdoer, “ How just, how great you are. O our hero, our
savior and our liberator!”
The Quran denounces tyrants such as Nimrudh, Pharoah, Haman and others, but it also
dispraises those who follow tyrants and obey their orders. This is why Allah dispraises the
people of Noah by saying, “ But they follow (men) whose wealth and children give them no
increase but only loss.” [Surat Nuh : 21]
Allah also says of Ad, people of Hud, “ And followed the command of every powerful, obstinate
transgressor”.[ Sura HUD : 59]
See also what the Quran says about the people of Pharoah, “ But they followed the command of
Pharaoh, and the command of Pharoah was not rightly guided.[ Surat Hud : 97] “ Thus he made
fools of his people, and they obeyed him : truly they were a people rebellious (against Allah) .”
[ Sura Az- Zukhruf : 54]
A closer look at the history of the Muslim Nation and the Islamic Movement in modern times
should show clearly that the Islamic idea, the Islamic Movement and the Islamic Awakening
have never flourished or borne fruit unless in an atmosphere of democracy and freedom, and
have withered and become barren only at the times of oppression and tyranny that trod over the
will of the people by force which clung to Islam. Such oppressive regimes imposed their
Secularism, Socialism, or Communism on their people by force and coercion, using covert
torture and public executions, and employing those devilish tools that tore flesh, shed blood,
crushed bone and destroyed the soul.
On the other hand, we saw the Islamic Movement and the Islamic Awakening bear fruit and
flourish at the times of freedom and democracy, and in the wake of the collapse of imperial
regimes that ruled peoples with fear and oppression.
Therefore, I would not imagine that the Islamic Movement could support anything other than
political freedom and democracy.”
“ However, the tools and guarantees created by democracy are as close as can ever be to the
realization of the political principles brought to this earth by Islam to put a leash on the
ambitions and whims of rulers. These principles are: shura (consultation), good advice enjoining
what is proper and forbidding what is evil, disobeying illegal orders, resisting unbelief and
changing wrong by force whenever possible. It is only in democracy and political freedom that
the power of Parliament is evident and that people’s deputies can withdraw confidence from any
government that breaches the Constitution, and it is only in such an environment that the strength
of free press, free Parliament, opposition and the masses is most felt.”
(Quoted from ‘Priorities of the Islamic Movement in the Coming Phase’, Chapter : The
movement and political Freedom and Democracy)
It is evident from the above discussion that Islamic thinkers and Muslim people want their right
to vote, rule of law, and a government that is to be elected by the people. The term democracy
mean all these things. Taking everything into consideration, we can say that there is no problem
to accept the term democracy under certain conditions. We see different constitutions and
Islamic scholars conditionally accepted the term ‘democracy’. Muslim community can accept
this term. This will help to remove misunderstandings about Islam that it is for violence and
dictatorships.
Understanding Politics in Islam - Fiqh al Siyasah

Adapted and rearranged from the book Fiqh al-Dawlah written by
Professor Yusuf al Qaradawi.
1. What is the aim of politics in Islam?

According to Al-Mawardi from his book Al-Ahkam Al-Sultaniyyah, it is hirasatud din wa
siasatud dunya - to uphold the religion and administer the world. Politics is not munkar - is
not a depravity - real politics is noble virtuous because it administers the affairs of all
creatures, bringing man closer to good and away from fasad - evil. According to Ibn al-
Qayyim, politics is really the justice of Allah the Almighty and His Prophet (peace and the
blessings of Allah be upon him).
The Prophet Muhammad s.a.w. was a politician as well as the messenger conveying the
risalah, murabbi - teacher, Qadi - Chief Justice, Head of the nation and Imam of the
ummah. The Khulafa' al Rasyidun - the rightly guided leaders who succeeded him were also
politicians following the Sunnah - way of the Prophet, establishing just administration,
practising ihsan - the betterment of good and providing the leadership of 'ilm - knowledge
and Iman - belief.
However in the present time, due to 'politics' man faced suffering as a result of deceit and
political ploys and scheming and devious politicians, whether in the form of past colonialists,
treacherous rulers, tyrannical leaders and regimes preaching Machiavellian philosophy (the
ends justifies the means!).
It became common to label and describe committed Muslims as 'political' so that they are
regarded warily and wickedly for the purpose of disassociating and furthering apart the
people from them, intending that society will shun and hate what is called 'political Islam'. It
has been such that symbols of Islam like the headscarf, the proper attire and congregational
prayers - Salat jama'ah are attempted to be labelled 'political'.
It is a blatant lie for those who say that there is no religion in politics and that there is no
politics in religion. This deceit was once tried in the form of an attempted fatwa - a decree
while the members of the Ikhwan al-Muslimun were imprisoned in the detention camps in
Egypt in the 50's. The regime wanted to influence the masses to regard the activists and the
Dai' (the very people who wanted to uphold the Syari'ah, Al-Qur'an and Al-Sunnah) as the
purveyors of fasad - evil by using corrupted 'ulama - paid scholars.
2. The Fight against Fasad and Zulm (Evil, Transgression and Tyranny) is
the utmost in Jihad
From the understanding of the Prophet's tradition (mafhum hadith):
Munkar (transgression) is not limited to khamr - liqour, gambling and zina - - unlawful sex
but degrading and defiling the honour and dignity of the people and citizens is a major
transgression, so is cheating in the elections, refusing to give testimony - neglecting to
vote, letting government be in the hands of those who are not deserving and undesired,
stealing and squandering the nation's wealth and property, monopolising the people's needs
for personal gains or cronies' interests, detaining people without crime or just cause,
without judgement from a fair court, torturing human beings in prison and the detention
camps, giving, accepting and mediating in bribes, cowering up to, praising evil rulers,
allowing the enemies of Allah and the enemies of the Muslim community to be leaders and
shunning the believers - the mu'min.
These are all grave transgressions!
When a Muslim remains quiet upon seeing all of these it means that he or she does not
deserve to live (is not alive) from the mafhum of al-ayat and al-hadith.
Islam requires that every Muslim has political responsibility. A Muslim is required by his
Iman - faith to be truly concerned with the affairs and problems of the ummah -
community, helping and defending the meek and the weak, fighting tyranny and
oppression. By retreating and abstaining oneself, it will only invite divine retribution and
being seized by the flames of hell (mafhum ayat).
3. Political Freedom is Our Utmost Need Today
Islam is always rejuvenated, its message spread across, its resurgence, its reverberating
call heard by all even if it is given some limited freedom. Therefore the first battle is to
obtain freedom to deliver the message of da'wah, the risalah of tawhid (Unity of God),
spread consciousness and enabling the existence of Islamic movements.
True democracy is not the whims and desires of the tyrannical rulers or their cronies, it is
not the place to jail and incarcerate its fighters and not the place to torture its proponents.
Democracy is the simplest and proper way to achieve the aims of a noble life, to be able to
invite all to Allah and Islam, to be able to call others to Iman without having our souls being
imprisoned and our bodies sentenced to be executed by hanging. It is the space for a free
and honourable nation to have the right to choose, evaluate the ruler, change governments
without coups and without bloodshed.
The theory, way and system which looks alien maybe adopted if it benefits us and as long
as it does not contradict clear Islamic edicts and the rules of Syariah. We appraise, amend
according to our spirit, we do not adopt its philosophy, and we do not allow what is
forbidden and vice versa. We do not relinquish or compromise what is ordained or
compulsory - the wajib in Islam.
The gist of democracy is that the public, the people can choose the rulers who are going to
administer them; the people having the right to select, criticise and terminate; and the
people are not forced to accept systems, trends, and policies which they do not agree to
and they are not abused. They are free to hold elections, referendums, ensuring majority
rights, protecting minority rights, having opposition, have multi parties, have press freedom
and safeguarding the independence of the judiciary. But once again to constantly uphold
and safeguard the principles of Islam, the firm rulings, the al-thawabit: the determined laws
- hukm qat'i, the daruri - the essentials of religion and the non-ijtihadiy must not be
compromised or neglected.
Syura:
Syura or consultative decision making must be followed and not just as a debating factor.
By practising syura, it is closer, hence even better than the spirit of democracy. It is but the
lost jewel found, the lost wisdom - al-hikmah which has been rediscovered.
Syura enables musyawarah to be conducted, obtains views and opinions, becomes the
responsibility of the people to advise and counsel the government (ad-dinu nasiha) and
establish amar ma'ruf nahy munkar - enjoining good and forbidding evil. Among the
obligations of amar ma'ruf nahy munkar is the highest jihad (struggle) that is to voice out
the truth in front of the unjust tyrant.
The State of Politics in the Ummah:
The musibah or calamity of the ummah then and now is the absence and the abeyying of
the system of syura and the adoption of an oppressive dynastical ruling system. In the
modern era, dictators stay in power by the force of arms and gold - power and wealth
resulting in the syariah being hindered, secularism being forced upon and cultural
Westernisation being imposed. Islamic da'wah and the Islamic movement being victimised,
brutalised, imprisoned and hounded viciously.
4. Qur'anic Examples of Tyrannical Rulers
The Al-Qur'an denounces all powerful rulers such as Namrud, Fir'aun (Pharaoh), Hamaan
and Qarun. Namrud is taghut - the transgressor who enslaves the servants of Allah as his
serfs.
There is the pact or collaboration of three parties:
Fir'aun - he claims to be God, carries out tyranny and oppression throughout the land,
enslaves the people
Hamaan - the cunning politician, experienced, having self interest, in the service of taghut,
propping up and supporting Fir'aun and cheating the people, subjugating them.
Qarun - the capitalist or feudalist who takes opportunity from the unjust and oppressive
laws, spending fortunes for the tyrannical leader in order to profit and amass more vast
returns, bleeding and exploiting the toils of the people. The origin of Qarun was that he
came from Prophet Musa's own clan who colluded with Fir'aun due to the love of worldly life
and materialism.
The combination of taghut and Zulm results in the spread of mayhem and the destruction of
the community, subjugating man by force and degradation.
The People:
Al Qur'an denounces the people or citizens who are obedient and loyal to their oppressive
rulers. The people who remain under the tutelage of taghut are fully responsible and
accountable because it is due to their attitude that brought forth these fir'auns and taghuts.
Al-Junud (the collaborators):
These are the armies and enforcers of the rule and order of the taghut. They use force, fear
and repression to eliminate and subdue all opposition and dissidents of the tyrant.
5. An Example of Leadership
Balqis, the Queen of Saba' as told in the Qur'an was a woman who lead her people well, just
and administered them with intelligence and wisdom saving her people from a war that was
destructive and made decisions by syura-consulting them. Alas, the story ended with the
acceptance of Islam. She led her people towards the goodness of the world and the
hereafter.
Leaders like her are much more capable and qualified with political acumen and wise
administration than most of the present Arab and Muslim 'male' leaders. (Prof. Yusuf
Qaradawi purposely avoided the term 'al-rijal')
6. Pluralism and Multi Parties in Islam

The existence of various parties or movements is not forbidden as long as unification is not
achievable due to differences over objectives, approaches, understanding and the level of
confidence and trust. Variety and specialisation are allowed as long as they do not become
contradictory and confrontational. However everyone has to be in one united front when
facing the challenges to aqidah - belief, syariah, ummah and the survival of Islam. Relations
between parties and groupings should be in the atmosphere of non-prejudice, forgiveness,
nobleness, counselling truth and steadfastness, wisdom and engaging in healthy cordial
debate.
Even when the Islamic State is established there is no reason to feel distraught at the
existence of pluralism and differences.
7. Counselling and Corrective Participation in Politics

Without the shedding of blood, the most effective way as the outcome of long and painful
struggles is the existence of political forces which the government in power is unable to
contain or eliminate: that is presence of political parties. The ruling regime can get rid of
individuals and small groups of opponents but it is difficult for them to defeat or wipe out
larger organisations which are well structured, organised and rooted in the masses of
society. Political parties have the platform, machinery, newspapers and publications as well
as mass influence.
Political parties or political movements are necessary to fight oppression, to enable
criticism, bringing back the government to to uphold truth and justice, bringing down or
changing the government. These parties are capable of monitoring and appraising the
government, offer advice and criticism.
8. Voting
Voting in the elections is a form of testimony. A just testimony is considered as long as one
is not convicted of crime. Whoever so votes or abstains from voting in the general elections
causing the defeat of a trustworthy and deserving candidate but on the other hand allows
the candidate who is less trustworthy and undeserving to win, one has gone against the
command of Allah concerning giving testimony.
Legislation in the Islamic State

The immense amount of work that was done by earlier jurists, while still
valuable to a large extent, will not be able to meet the practically infinite
demands for fresh legislation in the future Islamic state. How shall we deal
with the very practical issue of legislation once an Islamic state is finally
established? The ideal solution would be to bind the legislative Assembly or
Shura, through an unambiguous article of the Constitution, that it cannot
formulate any law that is repugnant to the Qur'an and the Sunnah. The
jurists and scholars belonging to various schools of thought will deliberate
and discuss and argue among themselves regarding the resolution of
contemporary issues, the solutions of which are not found explicitly in either
the Qur'an or the Sunnah. These scholars would make use of the whole
corpus of the Islamic literature on jurisprudence without any bias or
discrimination. A number of "think-tanks" can be established for this sort of
research, but without legislative authority, in order to avoid any
resemblance with theocracy. These institutions and academies can indirectly
guide the members of the Assembly as to the kind of laws that are
harmonious with the spirit of Qur'an and Sunnah.
Of course, the gates of Ijtihad would have to be re-opened if we are to run a
modern Islamic state. Equally obvious is the fact that the jurists and
scholars of the Islamic Shariah will continue to disagree with each other as
to which of the numerous possible solutions of a particular issue is closest to
the spirit of Qur'an and Sunnah. Again, there is no harm in such
disagreements. All these various solutions can then be discussed and
pondered over by the members of the legislative Assembly, and the best
possible law shall be formulated by them in accordance with majority vote.
There still remains the possibility that the legislative Assembly might commit
a mistake, whether intentional or inadvertent, by passing a law that is, in
fact, contrary to the teachings of Shariah. In that case, either the President
can refuse to endorse the bill, asking the legislature to review its decision, or
a citizen can approach the judiciary to plead that a violation of the
Constitution is being committed. The Supreme Court will obviously seek the
opinion of the representatives of the government as well as legal experts
and religious scholars, and it will be then up to the judges of the highest
Court to decide if indeed a transgression of the Shariah has occurred. If the
Court were to find that the new law is, in fact, repugnant to the Shariah, it
will have the prerogative to declare it null and void, forcing the Assembly to
start the whole process all over again.
That the Ulama in the future Islamic state would not insist on following any
particular school of jurisprudence is, unfortunately, not an immediately
attainable ideal. It would take time to convince the followers as well as the
religious scholars of various schools that, instead of demanding that all law-
making should conform to the rules and principles laid down by their
particular Imam, they should rather accede to give primacy to the original
sources of guidance __ the Qur'an and the Sunnah __ in the larger interest
of Islam as well that of the Muslims. However, till the time that such a
consensus is achieved, legislation in the Islamic state can continue on the
basis of that school of jurisprudence which is followed by the majority. For
example, legislation in Pakistan can be done on the basis of majority Fiqh,
which is the school of Imam Abu Hanifa. It may be noted that this is a
pragmatic, not an ideal, approach.
Since there can only be a single "law of the land" in any given country, it
follows that the adherents of all other schools of jurisprudence, by accepting
legislation based on the majority Fiqh, would have to sacrifice their own
emotional attachment to their specific Imam for the greater good of the
Ummah. It is also obvious that, in case the majority Fiqh is used as the basis
for legislation, the Islamic state would give complete and absolute freedom
to all its citizens concerning their private and personal affairs. That is to say,
although the "Public Law" would conform to the principles of one school of
jurisprudence, all citizens would be free to practice their own Fiqh in matters
of worship, rituals, marriage and divorce laws, etc. The state would never
interfere at all in these matters.
Futility of the Sectarian Approach

We must realize that the present atmosphere of conflict and disharmony
prevalent between various Muslim sects is utterly useless and futile. Each
one of these various sects have more than a thousand years of history
behind it. It is nothing more than a delusion that one faction can somehow
eliminate the other. Can the Shia Muslims force their particular ideas on to
the Sunnis? Can the Sunnis ever succeed in wiping out the Shias? Can the
followers of Imam Abu Hanifa ever eradicate the followers of the Salafi
school of thought? Can the latter exterminate the former? The answer is too
obvious to mention.
We must read the writing on the wall. We must recognize that it is simply
impossible to either disregard the existence of different sects in Islam or to
try and remove in an artificial manner their long-standing disagreements.
The correct approach is to accept the right of each sect to practice what it
believes to be true in the private and personal sphere and, at the same time,
to try and work out an understanding with regard to the practical issue of
legislation in an Islamic state, as described above.
KHILAFAT IN ISLAM : DIMENSIONS

by Shah Abdul Hannan
Khilafat is a very important concept in Islam. It has important implications in
the political system of Islam. Many important groups have made it a part of
their programme to establish Khilafat.
It is therefore necessary to be clear about the concept of Khilafat has three
important dimensions. In the moral and spiritual sense, Khilafat means that
all human beings are 'Khalifa of Allah' or representatives of Allah on earth.
This is the purport of the verse "Surely, we are going to place our
representatives (Khalifa) on earth" [verse 30 : Sura Baqara]. All human
beings are khalifa of Allah though many of them commit sins and do not act
like khalifa. (Ref. : Quran - 6:165; 27:62 and 35:39). This is the spiritual
khilafat in Islam.
Khilafat also means the political system of Islam. This is the most mentioned
dimension of Khilafat. Khilafat, as a system of politics and management of
state was established by the companions of Prophet (SM). The main points
of khilafat or political system of Islam are as follows :
a. Sovereignty of Allah which means supremacy of Shariah (Quran and
Sunnah). The basic law of the state shall be based on the Quran and the
Sunnah. The detailed subsidiary law is obtained by Ijtihad carried out by
individual or groups of scholars or made by the Parliament in the present day
world with the aid of the Ulama or scholars of Islam.
b. Government established by the free choice of the people. This is the majority
view. In the present world, this means government elected by the people.
There is agreement on this among the Ulama of Islam. There is hardly any
major difference. This is the system accepted in the Islamic constitutions in
force in the Muslim world.
c. Fundamental rights : All citizens should have human rights irrespective of
gender or creed. The Islamic Constitutions of the world have a chapter on the
Fundamental rights or Rights of the people which are available to all the
citizens in the state. These rights have been agreed to or confirmed by
Ulama after long debates in the light of the Quran and Sunnah.
d. Rule of Law and Independence of Judiciary are important points of Islamic
political system.
e. Shura or consultation with the people and among the persons in the
Government through various forum including Parliament is an important
element in Islamic political theory. This is the basis of democracy in
Islam.Large number of scholars feel that the term democracy can be used in
Islamic framework. (Ref. : Preamble of Islamic constitution of Pakistan which
says that the state shall strive to observe "democracy as enunciated by
Islam". Ulama accepted this phrase. )
These are the various elements of Islamic political system which go to make
Khilafat (Ref. : Khilafat and Mulukiat by Sayyid Abul Ala Maududi).
The third dimension of Khilafat is that it means the form of Government in
Islam. The Ulama have now agreed by and large that in the framework of
overall Islamic political theory, both Presidential and Parliamentary
Governments of to-day are consistent with Islam (Ref. : Islamic Constitution
of Iran and Pakistan, Islamic Law and Constitution by Sayyid Abul Ala
Maududi, ).
In conclusion, we can say that Khilafat does not only mean that the
President should be called Khalifa, it is much more than that. It is in essence
the political system of Islam.
Maulana Maududi’s Two-Nation Theory

Maulana Maududi’s Two-Nation Theory And The Struggle for Pakistan
By Abdul-Majid Jaffry, Garden Grove, CA

The earlier part of the twentieth century has witnessed a turmoil in the
Islamic world. The Ottoman Empire was disintegrating. Most of the Muslim
countries were under colonial rule. The intellectual and political dominance of
the West nearly destroyed the vitality of a Muslim mind and turned it against
its own religious, cultural, and historical heritage. Many persons in the
different parts of the Muslim world confronted the challenge, and fought to
unshackle the Muslim body and mind from Western slavery. In the Indian
Subcontinent, a few rose to revive the vitality and confidence of the Muslim
people. Among them Maulana Shibli Numani, Maulana Mohammad Ali
Jauhar, Allama Mohammad Iqbal, and Maulana Abul Ala Maududi were the
most prominent. They came forward with constructive thought and vision to
renew Muslim’s sense of identification with their religion, culture and
historical heritage. These vanguards of Muslim India believed that the revival
of Islam is the only way to save Muslims from sliding into abyss of the world
of self destruction, and to that end they made contributions that left indelible
impressions on the people and politics of the region. The forces, moral and
intellectual, organized over a period of time by these men, by gradual
process of growth, culminated into a movement—Pakistan Movement.
Pakistan Movement was based on the theory that Muslims are entirely
separate people from Hindus in every respect. They form an ideological
community with divine guidance for every field of human life, and it is a
dictate of their faith to establish a state where they can rule according to the
law revealed by the Almighty. This theory is popularly known as two-nation
theory. Under the leadership of Quaid-i-Azam Mohammad Ali Jinnah, the
movement, in less than a decade gave birth to Pakistan The man who is
most credited as an intellectual force behind the two-nation theory and a
front against united Indian nationalism is Maulana Abul Ala Maududi. In the
following lines, we intend to examine his contributions, as political thinker, in
the face of the opposition launched by the nationalists against the two nation
theory, Maulana Maududi was one of the most vigor crusaders for the cause
of Islam the Muslim world has seen in the recent history. Few men have
worked as relentlessly to give the practical shape to the guidance embodied
in the Quran and the Sunnah as Maulana has done. He was scholar,
reformer, revolutionary leader, and an Islamic thinker. His belief that
preaching, printed literature, and even Islamic education is of little avail
unless Islam can be implemented practically in a full blooded Islamic state
was behind the fervor with which he argued for the two-nation theory.
Maulana Maududi’s greatest contribution of the time was that he made
Muslims cognizant of their identity and raised in them a fervor to organize
their polity on the principles of Islam. While Quaid-i-Azm Mohammad Ali
Jinnah was mustering the forces to fight the Hindus and the British for a
Muslim homeland, a group of nationalist Muslims were undermining his
efforts by pedling the congress’ theme of one country, one nation.
Unfortunately, among the nationalist Muslims, there were many ulema. A
few of them had selfish reasons, but many were misled by their inability to
look at the Hindu-Muslim problem in a thorough and comprehensive way.
These ulema came to be known as Congressite ulema. They preached Indian
nationalism in their speeches and writings as a gospel of truth. Muslim
League, against the outpouring of the “learned and pious”, found itself in the
corner with little argument to defend its two-nation theory. Maulana Maududi
came to their rescue. Maulana, through his extremely prolific writings, built a
conceptual framework for Muslims to analyze the claim of Indian
nationalists, He showed that the independence of India will not be the
independence of Muslims people. For Muslims, being in minority,
independence would only mean a change in masters, British will be replaced
by the Hindus and that would be no independence for Muslims. Maulana’s
writings had aroused Muslim’s feelings that they were a nation by
themselves and cannot be integrated with Hindus. Ishtiaq Husain Qureshi, a
noted historian, writes: “Mawlana Abul Ala Mawdudi’s careful analysis of the
policies of the Indian National Congress opened many eyes. It did not win
him too many adherents and followers, but it did serve the purpose of
turning sincere and intelligent Muslims away from the Congress who mostly
swelled the ranks of the Muslim League as followers of Quaid-i-Azam.”
(Ulema in Politics, Ishtiaq Husain Qureshi, Ma’reef limited, Karachi, 1974, p.
3391.) Here, it would not be inappropriate to briefly outline the background
and psychology behind congressite ulema’s wanting in acumen and lack of
insight into contemporary affairs which led them to swallow the hook, line
and sinker thrown at them by Hindu Congress. They lived in ivory towers,
and were oblivious to the changes that were taking place just outside of
their Khanqahs secluded life of religious seminaries and an age long
observed custom of taqlid (following a certain school of thought) deprived
them of dynamism and turned their minds and hearts prisoners of their own
doctrines. Religious knowledge and social sciences were separated which led
to bifurcation of religious and profane world. As result, the graduates of
religious seminaries were impoverished in the knowledge of politics, social
sciences, economics, and international relations, which greatly restricted the
insight into contemporary affairs. More sadly, mainly due to the shackles of
age long traditional thinking, their capacity to apply the Quran and Sunnah
to arrive to a solution to a modern problem (ijtihad) became stagnant.
However, there were ulema, such as Maulana Shabbir Ahmad Usmani, and
Maulana Ashraf Ali Thanavi among others, who were urbane, knowledgeable,
and with insight in the national and international affairs, but they were few
and far apart. The task of Maulana Maududi and others who were fighting
the ideological war against Congress’ one-nation theory became massive and
complex when the “leading lights” of religious seminaries swallowed the
sugar-coated doctrine of Indian nationalism and wrote books and gave
zealous speeches to convince Muslims to throw their lot with the Indian
National Congress and give up their struggle for an independent Muslim
state. Maulana Husain Ahmad Madni, a great religious scholar of Deoband,
was the leader of the Deoband Congressite ulema. He, in support of Indian
nationalism wrote a book, “Mutahhedah qoomiyat aur Islam” (united
nationalism and Islam). The burden of the preaching of Maulana Madni’s
book was that the Muslims living in India were part of the monolithic Indian
nation. He juxtaposed Muslims and Hindus into one nation, which brought
strong condemnation from Allama Iqbal. He expressed his anger in a couplet
in these words: “Deoband produced Husain Ahmad, what monstrosity is
this? He chanted from the pulpit that nations are created by countries. What
an ignoramus regarding the position of Muhammad.” Maulana Madni
indulged in “willful distortion” of Quranic verses, prophets traditions, and
history to propound his theory of united nationalism. His book proved a boon
for Congress to counter Muslim League’s claim to a separate nationhood.
Maulana Maududi, an ardent proponent of two-nation theory, wrote a series
of article to expose the fallacy of Maulana Madni’s position on “united
nationalism”. He exhorted that Muslims were a distinct community and could
not be submerged with Hindus without compromising the foundation of their
faith. He pointed out that the united nationalism is a trap of deception which
would lead to an utter destruction of the collective identity of Muslims.
Ishtiaq Husain Qureshi, impressed by Maulana Maududi’s full dress rebuttal,
writes: “In fact Mawlana Mawdudi’s rejoinder was so logical, authoritative,
polite, and devastating that it was beyond the capacity of supporter of a
united nationhood to counter. Mawlana Mawdudi’s superior scholarship, his
telling arguments, his logic and his knowledge of modern concepts in
political science and law made it impassible for the Jamiat group to answer
his contentions. In fact Mufti Kifayat ul-llah who was a faqih (a jurist) “and,
of the demand of logic and academic debate and, therefore more cognizant
advised his colleagues against any attempt to continue the discussion,
because he opined that Mawlana Mawdudi was in right and there was no
point in attempting to defend the indefensible.” (see Ulema in Politics, page
351, 352) Muslim League had an attractive slogan of two-nation theory, but
had no literature to convince the nationalist Muslims/Congressite ulema, the
Hindus, and the British of the validity of its theory. Between 1937-39
Maulana Maududi wrote two remarkable books, “masla-i-quwmiyat” (The
problem of nationalism), and “Musalman awr mawjudah siyasi kashmakash”
(Muslims and the present political crisis). These two books provided Muslim
League with the much needed intellectual ammunition to fight the nationalist
movement. Study of these books were once considered a must for the
leaders of Muslim League. It can be said with confidence that Maulana’s
articles and books were landmarks in the path of struggle for Pakistan.
Courtesy : ((http://www.pakistanlink.com/community/8-16-96-07.html))
(November,1997)
The Political Framework Of Islam

Translated by Prof Khurshid Ahmad
The political system of Islam is based on the three principles of towhid (Oneness of Allah),
risala (Prophethood) and Khilifa (Caliphate).
Towhid means that one Allah alone is the Creator, Sustainer and Master of the universe and
of all that exists in it - organic or inorganic. He alone has the right to command or forbid.
Worship and obedience are due to Him alone. No aspect of life in all its multifarious forms ¾
our own organs and faculties, the apparent control which we have over physical objects or
the objects themselves ¾ has been created or a acquired by us in our own right. They are
the bountiful provisions of Allah and have been bestowed on us by Him alone.
Hence, it is not for us to decide the aim and purpose of our existence or to set the limits of
our worldly authority; nor does anyone else have the right to make these decisions for us.
This right rests only with Allah. This principle of the Oneness of Allah makes meaningless
the concept of the legal and political sovereignty of human beings. No individual, family,
class or race can set themselves above Allah. Allah alone is the Ruler and His
commandments constitute the law of Islam.
Risala is the medium through which we receive the law of Allah. We have received two
things from this source: the Qur’an, the book in which Allah has expounded His law, and the
authoritative interpretation and exemplification of that Book by the Prophet Muhammad
(blessings of Allah and peace be upon him), through word and deed, in his capacity as the
representative of Allah. The Qur’an laid down the broad principles on which human life
should be based and the Prophet of Allah, in accordance with these principles, established a
model system of Islamic life. The combination of these two elements is called the shari’a
(law).
Khilifa means "representation". Man, according to Islam, is the representative of Allah on
earth, His vice-gerent; that is to say, by virtue of the powers delegated to him by Allah, and
within the limits prescribed, he is required to exercise Divine authority.
To illustrate what this means, let us take the case of an estate of yours which someone else
has been appointed to administer on your behalf. Four conditions invariably obtain: First,
the real ownership of the estate remains vested in you and not in the administrator;
secondly, he administers your property directly in accordance with your instructions; thirdly,
he exercises is authority within the limits prescribed by you; and fourthly, in the
administration of the trust he executes your will and fulfils your intentions and not his own.
Any representative who does not fulfil these four conditions will be abusing his authority and
breaking the covenant which was implied in the concept of "representation".
This is exactly what Islam means when it affirms that man is the representative (khalifa) of
Allah on earth. Hence, these four conditions are also involved in the concept of Khalifa. The
state that is established in accordance with this political theory will in fact be a caliphate
under the sovereignty of Allah.
Democracy In Islam
The above explanation of the term Khilafa also makes it clear that no individual or dynasty
or class can be Khalifa: the authority of Khilafa is bestowed on the whole of any community
which is ready to fulfil the conditions of representation after subscribing to the principles of
towhid and Risala. Such a society carries the responsibility of the Khilafa as a whole and
each one of its individuals shares in it.
This is the point where democracy begins in Islam. Every individual in an Islamic society
enjoys the rights and powers of the caliphate of Allah and in this respect all individuals are
equal. No-one may deprive anyone else of his rights and powers. The agency for running
the affairs of the state will be formed by agreement with these individuals, and the authority
of the state will only be an extension of the powers of the individuals delegated to it. Their
opinion will be decisive in the formation of the government, which will be run with their
advice and in accordance with their wishes.
Whoever gains their confidence will undertake the duties and obligations of the caliphate on
their behalf; and when he loses this confidence he will have to step down. In this respect
the political system of Islam is as perfect a dorm of democracy as there can be.
What distinguishes Islamic democracy from Western democracy, therefor, is that the latter
is based on the concept of popular sovereignty, while the former rests on the principle of
popular Khilafa. In Western democracy, the people are sovereign; in Islam sovereignty is
vested in Allah and the people are His caliphs or representatives. In the former the people
make their own; in the latter they have to follow and obey the laws (shari’a) given by Allah
through His Prophet. In one the government undertakes to fulfil the will of the people; in
the other the government and the people have to fulfil the will of Allah.
The Purpose Of The Islamic State
We are now in a position to examine more closely the type of state which is built on the
foundations of tawhid, Risala and Khilafa.
The Holy Qur’an clearly states that the aim and purpose of this state is the establishment,
maintenance and development of those virtues which the Creator wishes human life to be
enriched by and the prevention and eradication of those evils in human life which He finds
abhorrent. The Islamic state is intended neither solely as an instrument of political
administration nor for the fulfillment of the collective will of any particular set of people;
rather, Islam places a high ideal before the state for the achievement of which it must use
all the means at its disposal.
This ideal is that the qualities of purity, beauty, goodness, virtue, success and prosperity
which Allah wants to flourish in the life of His people should be engendered and developed
and that all kinds of exploitation, injustice and disorder which, in the sight of Allah, are
ruinous for the world and detrimental to the life of His creatures, should be suppressed and
prevented. Islam gives us a clear outline of its moral system by stating positively the
desired virtues and the undesired evils. Keeping this outline in view, the Islamic state can
plan its welfare programme in every age and in any environment.
The constant demand made by Islam is that the principles of morality must be observed at
all costs and in all walks of life. Hence, it lays down as an unalterable policy that the state
should base its policies on justice, truth and honesty. It is not prepared, under any
circumstances, to tolerate fraud, falsehood and injustice for the sake of political,
administrative or national expediency. Whether it be relations between the rulers and the
ruled within the state, or the relations of the state with other states, precedence must
always be given to truth, honesty and justice.
Islam imposes similar obligations on the state and the individual: to fulfil all contracts and
obligations; to have uniform standards in dealings; to remember obligations along with
rights and not to forget the rights of others when expecting them to fulfil their obligations;
to use power and authority for the establishment of justice and not for the perpetration of
injustice; to look upon duty as a sacred obligation and to fulfil it scrupulously; and to regard
power as a trust from Allah to be used in the belief that one has to render an account of
one's actions to Him in the life Hereafter.
Fundamental Rights
Although an Islamic state may be set up anywhere on earth, Islam does not seek to restrict
human rights or privileges to the boundaries of such a state. Islam has laid down universal
fundamental rights for humanity which are to be observed and respected in all
circumstances. For example, human blood is sacred and may not be spilled without strong
justification; it is not permissible to oppress women, children, old people, the sick or the
wounded; women's honour and chastity must be respected; the hungry must be fed, the
naked clothed and the wounded or diseased treated medically irrespective of whether they
belong to the Islamic community or are from amongst its enemies. These, and other
provisions have been laid down by Islam as fundamental rights for every man by virtue of
his status as a human being.
Nor, in Islam, are the rights of citizenship confined to people born in a particular state. A
Muslim ipso facto becomes the citizen of an Islamic state as soon as he sets food on its
territory with the intention of living there and thus enjoys equal rights along with those who
acquire its citizenship by birth. And every Muslim is to be regarded as eligible for positions
of the highest responsibility in an Islamic state without distinction of race, colour or class.
Islam has also laid down certain rights for non-Muslims who may be living within the
boundaries of an Islamic state and these rights necessarily form part of the Islamic
constitution. In Islamic terminology, such non-Muslims are called dhimmis (the
covenanted), implying that the Islamic state has entered into a covenant with them and
guaranteed their protection. The life, property and honour of a dhimmis is to be respected
and protected in exactly the same way as that of a Muslim citizen. Nor is there difference
between a Muslim and a non-Muslim citizen in respect of civil or criminal law.
The Islamic state may not interfere with the personal rights of non-Muslims, who have full
freedom of conscience and belief and are at liberty to perform their religious rites and
ceremonies in their own way. Not only may they propagate their religion, they are even
entitled to criticize Islam within the limits laid down by law and decency.
These rights are irrevocable. Non-Muslims cannot be deprived of them unless they renounce
the covenant which grants them citizenship. However much a non-Muslim state may
oppress its Muslim citizens it is not permissible for an Islamic state to retaliate against its
non-Muslim subjects; even if all the Muslims outside the boundaries of an Islamic state are
massacred, that state may not unjustly shed the blood of a single non-Muslim citizen living
within its boundaries.
Executive And Legislature

The responsibility for the administration of the government in an Islamic state is entrusted
to an amir (leader) who may be compared to the president or the prime minister in a
Western democratic state. All adult men and women who subscribe to the fundamentals of
the constitution are entitled to vote for the election of the amir.
The basic qualifications for an amir are that he should command the confidence of the
majority in respect of his knowledge and grasp of the spirit of Islam, that he should possess
the Islamic quality of fear of Allah and that he should be endowed with qualities of
statesmanship. In short, he should have both virtue and ability.
A shoora(advisory council) is also elected by the people to assist and guide the amir. It is
incumbent on the amir to administer his country with the advice of this shooraThe amir may
retain office only so long as he enjoys the confidence of the people and must relinquish it
when he loses that confidence. Every citizen has the right to criticize the amir and his
government and all reasonable means for the ventilation of public opinion must be
available.
Legislation in an Islamic state is to be carried out within the limits prescribed by the law of
the shari’a. The injunctions of Allah and His Prophet are to be accepted and obeyed and no
legislative body may alter or modify them or make any law contrary to them. Those
commandments which are liable to two or more interpretations are referred to a sub-
committee of the advisory council comprising men learned in Islamic law. Great scope
remains for legislation on questions not covered by specific injunctions of the shari’a and the
advisory council or legislature is free to legislate in regard to these matters.
In Islam the judiciary is not places under the control of the executive. It derives its
authority directly from the shari’a and is answerable to Allah. The judges are appointed by
the government but once a judge occupies the bench he has to administer justice
impartially according to the law of Allah; the organs and functionaries of the government
are not outside his legal jurisdiction, so that even the highest executive authority of the
government is liable to be called upon to appear in a court of law as a plaintiff or defendant.
Rulers and ruled are subject to the same law and there can be no discrimination on the
basis of position, power or privilege, Islam stands for equality and scrupulously adheres to
this principle in social, economic and political realms alike.
http://www.witness-pioneer.org/vil/Articles/shariah/shariah.html
SHARIAH: THE WAY OF JUSTICE

By: Khurram Murad
INTRODUCTION
Adroitly manipulated exposure to the imagery of a whip cracking on a naked
back and a veil enshrouding a woman’s face has led many to believe that the
Shari’ah , the divine code of Muslim conduct, is in reality no more than a
collection of values and practices that are primitive, uncivilized and barbaric.
What to a Muslim is the object of his longing and endeavour has been very
subtly projected as a relic from the dark ages which enslaves the woman
and inflicts punishments on the criminal which are cruel, inhuman and
degrading.
The Qur’an most certainly does prescribe corporal punishment for certain
serious social crimes and it does lay down the principle of retribution, or
qisas; it is very emphatic, too, about the crucial role of the family in human
society and therefore insists on assigning different well-defined roles to men
and women; and it does lay down many other regulations and laws and
expects Muslims to obey the eternally valid injunctions of God and His
Prophet.
But will these and similar provisions of the Shari’ah really plunge society
back into darkness? Are they inhuman and barbaric? Are they an indicator of
Islam’s inability to keep pace with the demands of human progress? The
issues need to be examined seriously to determine the place and valued of
the Shari’ah and its provisions in the ultimate order of human civilization and
happiness. The need for this examination is especially acute in the view of
the dogmatic position adopted by the West on these questions. A host of
Western writers have said it, and the media continue to harp on the same
theme: unless Islam is prepared to relent on these and other legal provisions
of the Shari’ah ‘ there can and will be no accommodation; only a
continuation of Western rejection of Islam’. Such vehemence makes one
wonder whether the loud chorus about the Shari’ah, and such of its specific
provisions as pertain to women and punishment, is in all cases the result of
genuine misunderstanding and moral indignation, or whether the issue is
merely being used by some as a whipping-boy to settle scores with Islam –
old and new.
No apologies or excuses are needed to explain away or make acceptable to
the West what has been so clearly laid down by the Qur’an and the Prophet
in this regard and what has been so consistently accepted and adhered to by
Muslims. There should be no place in dialogue with the West for such
tortuous, self-deprecating arguments as: ‘polygamy is permitted, but the
conditions of justice attached to it makes it effectively prohibited’. Or:
‘Corporal punishment is prescribed but hedged in with such unworkable
requirements of evidence that it is virtually impossible to carry it out. Or, at
least, it cannot be carried out unless an "ideal" just society is established,
when it will in any case become unnecessary’.
Why those who advance this specious logic should think that God would lay
down things which were impossible to practice is not made clear. As if He
does not know how to say what He means, and say it clearly! Such excuses
are unfair to the Qur’an and the Prophet, and an affront to their wisdom, and
at the same time illogical and implausible to the unconvinced.
TOWARDS BETTER UNDERSTANDING

I do not intend to convince everyone, for this is humanly impossible; nor
offer excuses, for they are neither necessary nor convincing. What I
therefore wish to attempt is to discuss the place of justice in the Shari’ah
and the basis and nature of the provisions regarding women and criminal
punishment in a way that may at lest generate understanding and tolerance,
if not agreement. It should be recognised that the discussion here can be
only brief and general, and perhaps will not do full justice to Islam’s position
on important and complex issues like the place of women in Muslim society.
SHARI’AH: THE TRUE EMBODIMENT OF JUSTICE
Specific provisions of the Shari’ah can be properly understood only in the
context of its total scheme – its conceptual basis, primary objectives and
goals and overall framework.
CONCEPTUAL BASIS
Shari’ah literally means ‘way to water’ – the source of all life – and signifies
the way to God, as given by God. It is the Way which encompasses the
totality of man’s life. Being God-given, the Sharia’ah is the manifestation of
His infinite mercy. It is thus also the only true embodiment of, and the best
way to, justice.
THE SOURCE OF JUSTICE

Man’s quest for justice without recourse to divine help, and failure to find it,
is the most persistent and tragic theme of human history. For justice, an
ideal deeply cherished, ardently desired and ceaselessly pursued by mankind
from the very first day of its existence on this planet, can never be truly
conceptualised nor practiced unless it is rooted in the belief in One God.
He, the infinitely Merciful and Absolutely Just, has created everything with a
purpose and in perfect harmony and balance. He has also guided every
creation so that it fulfils that purpose. The whole universe and all creation is
sustained on this foundation. Justice for man, therefore, as for everything
else in creation, lies in obeying God by doing what He has laid down as
‘right’ and avoiding what He has laid down as ‘wrong’. It is only God who can
establish in the intricate network of interrelationships and roles, mutual
rights and obligations and consequent rewards and punishments on the basis
of absolute standards of justice. That is the reason divine guidance is
frequently called the ‘Balance’ in the Qur’an (al-Rahman 55: 1 - 9). All other
sources of knowledge and modes of determination, whether scientific
enquiry, pure reason or empiricism, suffer from one deficiency or another,
being rooted in human imperfection.
JUSTICE: THE SUPREME PURPOSE

Justice is the supreme purpose and ruling spirit of the Shari’ah. It provides
the framework for the entire corpus of Islam, shaping and moulding its
beautiful configurations. The paramount purpose for which the Prophets
were sent and struggled all their lives was to guide man to achieve justice.
‘We sent our messengers with clear signs, and sent down with them the
Book and the Balance so that men may conduct themselves with justice’ (al-
Hadid 57:25)
This is also the very ideal for which the community of Islam, the Ummah,
exists as a separate entity. ‘Thus We made you a just community, that you
be witnesses to mankind’ (al-Baqarah 2:143). And again: ‘O Believers, be
you upholders of justice, witnessing for God alone’ (al-Nisa’ 4:135).
Indeed, no conception of Islam and Muslim should be possible without
justice. Justice, in Islam, lends meaning and colour to all human
endaevours, both on an individual level and as a societal ideal, extending
from now into eternity. It servers as the ultimate criterion for the internal
ordering of the soul and the external regulation of relationships. The Qur’an
repeatedly emphasises that Zulm – wrongdoing – has absolutely no place in
Islam.
SHARIAH: THE WAY OF JUSTICE

By: Khurram Murad
INTRODUCTION
Adroitly manipulated exposure to the imagery of a whip cracking on a naked
back and a veil enshrouding a woman’s face has led many to believe that the
Shari’ah , the divine code of Muslim conduct, is in reality no more than a
collection of values and practices that are primitive, uncivilized and barbaric.
What to a Muslim is the object of his longing and endeavour has been very
subtly projected as a relic from the dark ages which enslaves the woman
and inflicts punishments on the criminal which are cruel, inhuman and
degrading.
The Qur’an most certainly does prescribe corporal punishment for certain
serious social crimes and it does lay down the principle of retribution, or
qisas; it is very emphatic, too, about the crucial role of the family in human
society and therefore insists on assigning different well-defined roles to men
and women; and it does lay down many other regulations and laws and
expects Muslims to obey the eternally valid injunctions of God and His
Prophet.
But will these and similar provisions of the Shari’ah really plunge society
back into darkness? Are they inhuman and barbaric? Are they an indicator of
Islam’s inability to keep pace with the demands of human progress? The
issues need to be examined seriously to determine the place and valued of
the Shari’ah and its provisions in the ultimate order of human civilization and
happiness. The need for this examination is especially acute in the view of
the dogmatic position adopted by the West on these questions. A host of
Western writers have said it, and the media continue to harp on the same
theme: unless Islam is prepared to relent on these and other legal provisions
of the Shari’ah ‘ there can and will be no accommodation; only a
continuation of Western rejection of Islam’. Such vehemence makes one
wonder whether the loud chorus about the Shari’ah, and such of its specific
provisions as pertain to women and punishment, is in all cases the result of
genuine misunderstanding and moral indignation, or whether the issue is
merely being used by some as a whipping-boy to settle scores with Islam –
old and new.
No apologies or excuses are needed to explain away or make acceptable to
the West what has been so clearly laid down by the Qur’an and the Prophet
in this regard and what has been so consistently accepted and adhered to by
Muslims. There should be no place in dialogue with the West for such
tortuous, self-deprecating arguments as: ‘polygamy is permitted, but the
conditions of justice attached to it makes it effectively prohibited’. Or:
‘Corporal punishment is prescribed but hedged in with such unworkable
requirements of evidence that it is virtually impossible to carry it out. Or, at
least, it cannot be carried out unless an "ideal" just society is established,
when it will in any case become unnecessary’.
Why those who advance this specious logic should think that God would lay
down things which were impossible to practice is not made clear. As if He
does not know how to say what He means, and say it clearly! Such excuses
are unfair to the Qur’an and the Prophet, and an affront to their wisdom, and
at the same time illogical and implausible to the unconvinced.
TOWARDS BETTER UNDERSTANDING

I do not intend to convince everyone, for this is humanly impossible; nor
offer excuses, for they are neither necessary nor convincing. What I
therefore wish to attempt is to discuss the place of justice in the Shari’ah
and the basis and nature of the provisions regarding women and criminal
punishment in a way that may at lest generate understanding and tolerance,
if not agreement. It should be recognised that the discussion here can be
only brief and general, and perhaps will not do full justice to Islam’s position
on important and complex issues like the place of women in Muslim society.
SHARI’AH: THE TRUE EMBODIMENT OF JUSTICE

Specific provisions of the Shari’ah can be properly understood only in the
context of its total scheme – its conceptual basis, primary objectives and
goals and overall framework.
CONCEPTUAL BASIS
Shari’ah literally means ‘way to water’ – the source of all life – and signifies
the way to God, as given by God. It is the Way which encompasses the
totality of man’s life. Being God-given, the Sharia’ah is the manifestation of
His infinite mercy. It is thus also the only true embodiment of, and the best
way to, justice.
THE SOURCE OF JUSTICE

Man’s quest for justice without recourse to divine help, and failure to find it,
is the most persistent and tragic theme of human history. For justice, an
ideal deeply cherished, ardently desired and ceaselessly pursued by mankind
from the very first day of its existence on this planet, can never be truly
conceptualised nor practiced unless it is rooted in the belief in One God.
He, the infinitely Merciful and Absolutely Just, has created everything with a
purpose and in perfect harmony and balance. He has also guided every
creation so that it fulfils that purpose. The whole universe and all creation is
sustained on this foundation. Justice for man, therefore, as for everything
else in creation, lies in obeying God by doing what He has laid down as
‘right’ and avoiding what He has laid down as ‘wrong’. It is only God who can
establish in the intricate network of interrelationships and roles, mutual
rights and obligations and consequent rewards and punishments on the basis
of absolute standards of justice. That is the reason divine guidance is
frequently called the ‘Balance’ in the Qur’an (al-Rahman 55: 1 - 9). All other
sources of knowledge and modes of determination, whether scientific
enquiry, pure reason or empiricism, suffer from one deficiency or another,
being rooted in human imperfection.
JUSTICE: THE SUPREME PURPOSE
Justice is the supreme purpose and ruling spirit of the Shari’ah. It provides
the framework for the entire corpus of Islam, shaping and moulding its
beautiful configurations. The paramount purpose for which the Prophets
were sent and struggled all their lives was to guide man to achieve justice.
‘We sent our messengers with clear signs, and sent down with them the
Book and the Balance so that men may conduct themselves with justice’ (al-
Hadid 57:25)
This is also the very ideal for which the community of Islam, the Ummah,
exists as a separate entity. ‘Thus We made you a just community, that you
be witnesses to mankind’ (al-Baqarah 2:143). And again: ‘O Believers, be
you upholders of justice, witnessing for God alone’ (al-Nisa’ 4:135).
Indeed, no conception of Islam and Muslim should be possible without
justice. Justice, in Islam, lends meaning and colour to all human
endaevours, both on an individual level and as a societal ideal, extending
from now into eternity. It servers as the ultimate criterion for the internal
ordering of the soul and the external regulation of relationships. The Qur’an
repeatedly emphasises that Zulm – wrongdoing – has absolutely no place in
Islam.
ULTIMATE CRITERION OF JUSTICE

The Shari’ah itself is therefore the ultimate criterion of justice and mercy,
and cannot and ought not to be measured against changing human
standards.
‘And perfect are the words of your Lord in truthfulness, and in justice; His
words cannot be changed; He is the All-hearing, All-knowing’ (al-An’am
6:116).
Having been given by God, through the last of His prophets, and, therefore,
for all time to come, it could not be otherwise.
Changes in human understanding, progress in standards of civilization,
which is considered to be linear in time, and advances in technology are all
supposed to generate genuine pressures on the Shari’ah to change or to give
up those parts which do not seem to rhyme with the late twentieth century
time. But what has really changed? Has man changed? Essential human
nature, its motives and drives, its emotions and desires have remained
virtually unchanged throughout the ages. Technology has certainly advanced
and some ways of looking at the world have altered but no new definitions of
concepts like ‘cruelty’, ‘civilized’, ‘justice’, ‘equality’ have emerged to
command universal adherence. Man’s lusts and fears, hopes and anxieties,
loves and hates, aspirations, yearnings and longings remain what they have
always been. Similarly, the idea that something which evolves later in time
is necessarily superior to that which preceded it is also untenable. The only
absolute and universal criteria can be those given by God, the All-knowing,
whose words are above any change.
OBJECTIVES AND FRAMEWORK

PLACE OF THE INDIVIDUAL
The overall scheme of the Shari’ah and its various specific provisions are
largely determined by the way Islam resolves the perennial question of
tension between the individual and society and the fundamental and crucial
role it assigns to the family.
The concept of the individual and the emphasis on his achievement is not
the product of modern Western thought, as many people have tried to make
the world believe. The individual has always been the cornerstone in Islam’s
total scheme and plan of justice, though in a way fundamentally different
from the Western concept. His status and achievement neither depend upon
nor can be measured by the standards of ‘consumption’. In the sight of God,
real human progress is moral, not material; its real measure is possible in
the life Hereafter, not in this world.
This theme is so patently obvious and prominent in the Qur’an that it
requires no substantiation. On the Day of Judgement, it will be individuals in
their personal capacities, and not groups and societies, who will be held fully
responsible and accountable for what they have done in their earthly lives.
‘Everyone of them will come to Him on the Day of Resurrection, all alone’
(Maryam 19:95). And: ‘Now you have come to Us, alone, just as We created
you the first time!’(al-An’am 6:94).
This is because it is the individual who has been given free will, a moral
sense and the knowledge of right and wrong. It is therefore also important
that he should be fully enabled to achieve his purpose and realise his
potential. This seems to be the primary thread running through the entire
fabric of the Shari’ah. His life, person, freedom, possessions and honour are
sacred and inviolable: no human being, not even the most powerful ruler,
has the right, privilege or authority, unless acting in accordance with the law
of God, to take anyone’s life, harm anyone physically, take away their
possessions or violate their honour.
IMPORTANCE OF SOCIETY
Having said that, it is important to recognise that the individual lives in a
society without which he can neither survive nor find fulfillment. Social order
and its good are not separate from or in conflict with individual good. Both
should stand together – fused and harmonious, co-operating and assisting –
in the service of their One God. Both are inter-dependent and in equilibrium.
Both have their well-defined functions and orbits to follow. ‘It behooves not
the sun to overtake the moon, nor does the night outstrip the day. Each
floats in its orbit’ (Yasin 36:40). Also the balance is provided by divine
guidance in the tensions between various components oh human life –
between the individual and society, between man and woman. The
congregational nature of all forms of worships – whether prayers, charity,
fasting or pilgrimage – and great stress on the formation of the Ummah as
an integrated whole amply reflect Islam’s concern for society and its
employment as a means of the individual’s development, purification and
self-realization.
THE FAMILY
The family is the most fundamental unit in the total scheme of social order in
Islam. It enjoys the highest status and the most prestige. It is the fount of
the human race, its culture, society and civilization. Procreation is made
possible because of sexualisation and it is institutionalised in the family.
Similarly the family achives the development of the individual and his
transition into society.
The family is a divinely inspired institution in the sense that it came into
existence with the creation of man. ‘O Mankind, remain conscious of your
duty to your Lord, who created you of a single soul; and, of like nature,
created its mate; and from the pair of them created and spread many men
and women’ (al-Nisa’ 4:1). A man and woman, only because they are
different and yet complementary, are capable of forming the unity of family,
which is essential for the fulfillment of the individual and the realization of
the common good. The family is thus the cradle of the individual and the
cornerstone of society.
The family is Islam cultivates and strengthens faith in One God. It preserves
and communicates values and culture. It provides a stable environment for
the development and fulfillment of the individual and enriches the lives of all
its members, providing each the caring and sharing which he or she needs.
However, like any other social institution, the family can survive only if the
roles within it are clearly differentiated and strictly followed.
As only women are capable of bearing children, even if no other differences
between men and women are accepted, Islam assigns to the female the
primary responsibility for home and family; while man is assigned the
primary responsibility for life outside the home. Every institution needs a
head and the role of head of the family and responsibility for its economic
support also devolve on the male. Despite this primary division, men have
the duty to share household burdens and women are not debarred from
roles outside the home. And within the home, the woman shares the power
and responsibilities of the head of the family, and may even become one if
circumstances so require.
NATURAL SEQUELS
It therefore follows that any act which vitiates against the individual or which
tends to weaken or isrupt the social order, especially the family, is no less a
serious crime than, say, high treason against the state. The Shariàh has
accordingly made every possible arrangement to ensure, within the
constraints of human limitations and imperfections, that the individual is not
hampered in seeking in his fulfillment and carrying out the purpose of his
creation; that the two pillars of the family, man and woman, continue to
participate in and strengthen the family in accordance with the roles
assigned to them; and that the social fabric is not damaged by any single
person’s vandalism.
The role assigned to both man and women by the Shari’ah and the
arrangements it makes to protect and reinforce these roles, can only be
appreciated in the above perspective. Similarly, the severe penalties for
extra-marital sex, theft, libel and drinking, and the prescription of requital,
or qisas for murder and physical injury, must be seen in the context of this
overall scheme of life.
WOMAN
ROLES WITHIN THE FAMILY
The social roles assigned by the Shariah to man and woman within the
family emanate from one simple but profound reality: the two are
biologically and sexually different; only the woman can bear children. Other
important psychological, physical and social differences follow from this. But
even if, for the sake of argument, these other genuine difference are
dismissed as having been ‘socially caused’, the reality of this biological and
sexual difference is impossible t deny.
Obviously the role of bearing children is one that the woman can neither
shirk nor transfer, unless the ear of test-tube babies is ushered in or
mankind decides to extinguish itself. Sex difference, reproduction, role of
differentiation, sexual morality, survival of the family, healthy child
development and the health and strength of society are closely inter-linked
and mutually dependent phenomena, in which sex-based role differentiation
is the key to the stability of the entire system. If it is abandoned, the whole
chain will snap: sexual morality will collapse, personality disorder will be
rampant, anarchy and chaos will the order of the day. In short, the family
will vanish.
There is no convincing case however for saying that role differentiation is
socially caused; on the contrary, the cumulative weight of all evidence,
whether from pre-history or history, indicates unmistakably that every
society has chosen to do things the same way, even the contemporary West,
which is so vociferous in professing ‘equality of the sexes’. No society is on
record which has ever progressed without placing woman in full charge of
the home.
DIFFERENT BUT NOT INFERIOR

Hence the principle in the Shari'ah: the woman's place is in the home.
However, it is very important to note that to be different is NOT to be
inferior. Islam attaches no stigma to being a woman; there is no inferior
nature, no myth of Fall and no responsibility for original sin. To bear and
rear children is no disgrace either. To rule over and manage the kingdom of
home - that haven of human happiness and progress - is no mean
achievement. Home and children can be degrading and a burden only in a
society which chooses to make them so. In Islam, domesticity is not a
devalued sphere of human life, nor is home in any way inferior to public life.
Indeed, the very epithet 'confined to the four walls of the home' is absurd to
a Muslim, as the home in Islam, far from being a place to be looked down
upon with contempt, is more important and sacred than even a parliament
building or a university, and certainly more prestigious, creative and
rewarding than the shop floor or secretarial desk, where two thirds of
'emancipated' women finally end up working.
EQUALITY, NOT SIMILARITY
Equality is one of those human yearnings which usually elude definitions. Its
translation into roles, rules and norms has always been subjective.
Unfortunately, it is being used by modern feminists as a slogan in their
campaign to erase all role differentiation. It is being used, too, as a
smokescreen from behind which to direct the barrage of attacks against the
Shari'ah for its various provisions regarding women.
That equality is a profound human urge and a genuine human ideal is
beyond doubt. What is equally true and obvious is that equality of role does
not necessarily mean similarity of role. Once equality is confused with
similarity, the only possible conclusion is: 'A truly equal two-sexed society is
unimaginable'. Ending role differentiation is bound to have catastrophic
consequences as already noted, for the interlinked phenomena of sexual
morality, the family, reproduction, child-rearing, personality development
and society, as is already evident in the West. Even such an apparently
relatively minor phenomenon as the spread of contraceptive techniques has
been profoundly instrumental in promoting extra-marital sex, changing sex
values, upsetting and confusing roles, disrupting the family and devaluing
child-rearing and home life. Population control may have been achieved but
a glaring questing mark over the final destiny of the human race has
appeared.
Islam recognizes the obvious differences between man and woman and
shapes their social roles accordingly, but it lays no less emphasis on the
similarity of their essential natures as human beings and on their right to
equality of opportunity to find fulfillment through their roles in this world
and, finally and more importantly, in the eyes of their God in the life
hereafter. According to the Shari'ah, man and woman are equal as human
beings and have an equal number of mutual obligations and rights. The
family unit has the man as its head, for no institution can survive without a
head,; but this is no way makes the woman unequal to man. She is not
obligated even to take her husband's name and lose her identity. Her share
in inheritance is one-half of the male share, but she is under no obligation to
make any financial contribution to the maintenance of the family.
Many specific provisions of the Shari'ah regarding the rights and obligations
of women, their conduct and behaviour, their dress and segregation,
marriage and divorce laws and work outside the home can be better
understood in this light. But, what is equally important to bear in mind is
that some of the prevalent practices in the Muslim societies today, that have
come into vogue as a result of centuries of decadence and stagnation as well
as un-Islamic influences, should not be used to understand and judge Islam.
SEX OUTSIDE MARRIAGE

Sex, in Islam is not a taboo to feel guilty about. It is a natural and creative
urge, a God-given gift. But the bond of marriage must be tied before
enjoying the pleasures of sex, which are the rewards for the responsibilities
that the man and woman bear in rearing a family; these joys lighten the
burden and cement and bind the relationship. To seek sex outside the limits
set by God is a sin, to seek it within these limits is therefore an act of
worship.
If sex inside and outside marriage were equally legitimate or easily
available, the sacred institution of the family would be gradually destroyed.
Islam therefore not only completely prohibits all forms of sexual deviation
and pre and extra-marital sex; it arranges to make them highly inaccessible
and also severely punishable. Hence the regulations about covering various
parts of the body and the social mixing of the sexes.
POLYGAMY
Polygamy is permitted by the Qur'an; though it is not enjoined, as some
people apparently believed. Justice is enjoined, as far as is humanly
possible, otherwise one should remain monogamous. Thus, disadvantages of
a polygamous marriage are recognized, but not to the extent of prohibiting it
legally. This legal provision can be properly understood only in the context of
Islam's position on two important issues, as already explained. Firstly, that
the family is the cornerstone of human society and any extra-marital sex is
completely prohibited. Married life is the most desirable way of life - Islam
wants a woman to be a wife and never a mistress. Both man and woman
have to make some sacrifice to make a success of family life. Secondly,
Islam's law is for all times to come and should therefore, as far as is
practical, cater for all possible social and individual situations. Legal
provision, like a total ban on divorce or polygamy may indeed result in far
more serious consequences than they may solve. Even in countries where
polygamy is illegal, it may be argued, monogamy is fairly rare, so sex
outside marriage is considered as polygamy, as it should be.
It is left to the societies and individuals , within the freedoms and
prohibitions laid down by Islam, to regulate their conduct as they may
desire. What is important to note is that it takes a woman, in addition to a
man, to make a polygamous marriage; for no marriage in Islam can never
take place without her consent. And the first wife can also claim a divorce if
she cannot live with the situation. Hence it is entirely within the power of
individuals virtually to eliminate polygamy without recourse to law.
MARRIAGE AND DIVORCE

Women's consent is an essential legal condition for marriage in Islam. If
such consent is not being obtained in Muslim societies today, the problem is
a result of social circumstances, not of the legal provisions of the Shari'ah.
The situation must change once the Shari'ah is implemented.
It is certainly simple in theory for a man to divorce his wife in Islam. But it is
found to be very difficult for him to do so in practice; the very low rate of
divorce is enough to prove this. Indeed, the power to divorce is more of a
responsibility to save the marriage. Among the things permitted by God,
divorce is the most disliked by him, said the Prophet. On the other hand,
while the woman cannot pronounce divorce like the man, it is not difficult for
her to obtain one, even on the ground of her husband's physical appearance
not being to her liking.
WORK OUTSIDE THE HOME

To preserve the role differentiation and to retain the incentives for
strengthening the family, Islam discourages women from working outside
the home. This discouragement in no way prejudices a woman's right to own
property, to conduct business, to receive and impart education, to engage in
cultural and creative activities, and even take up job when necessary. Yet to
ask woman to work outside the home is indeed to make her unequal; it is to
ask her to take on the enormous stress of doing two jobs.
The urge to work is only natural, but work as the center of life is one product
of a society which is consumption-oriented and where status depends on
earning capacity. Women work today, not only through economic necessity,
but because they are under other subtle pressures; accusations of wasting
their talents on 'degrading' domestic chores, lack of status, boredom and
isolation. In Islam, as we have already noted, the whole orientation of the
individual and society is radically different. Work is still very important, but
the real goal in life is to please God.
PUNISHMENTS
Punishments have always been considered an integral part of the concept of
justice. Indeed, a common man would find it hard to think of justice as
something very different or separate from rewarding or punishing people
according to how well or badly they observe the body of the mutual rights
and obligations obtaining in their society. But if the concept of punishment is
universal, the controversies surrounding it are nonetheless intense. We shall
now look at some basic Islamic principles concerning punishments.
BASIC PRINCIPLES
Man is responsible for his actions: this simple truth provides the whole basis
for the justification of punishment. For, to fulfil the purpose of this creation,
he has been granted the freedom to choose and act, and the moral sense to
distinguish between right and wrong. Responsibility goes with knowledge
and freedom. Punishment cannot therefore be meted out to anyone for
someone else’s actions, for acts intended but not performed or for acts done
under duress or while not of sound mind. Everyone must be equal before the
law and their guilt must be established by the due process of justice.
REPENTANCE AND PUNISHMENT

Punishment in Islam has nothing to do with the notions of atonement,
expiation or wiping away of sin. A crime is essentially an act of injustice to
one’s own self, a sin against God. It can be wiped away only by God, and
that He does when a person turns to Him, truly repentant and seeking
forgiveness. Between man and God, therefore, the total emphasis is on
repentance, and punishment can be no substitute for it. But a crime is also
an act against the social order and in this sphere mere repentance cannot be
a substitute for punishment which is a means of protecting and
strengthening the society.
PROPORTIONAL JUSTICE
It is important to note that there is no concept in Islam of the punishment
being exactly and justly proportional to the crime. Absolute and truly
proportional justice would require the exact and complete evaluation of such
complex factors as intentions and motives, the surrounding circumstances,
the causes and repercussions- factors which human judges must consider
but cannot evaluate fully and which only God, in the new moral order to be
set up in the life after death, can measure. Islamic punishments are not
therefore to be judged on the scales of proportional and full retribution. They
are however laid down by the Being who is infinitely Merciful and Wise, and
are therefore more suitable for the particular crimes than what can be
prescribed by any human legislatures or judges.
PART OF A WHOLE
Most importantly, punishments are only a part of a vastly larger integrated
whole. They can neither be properly understood, nor successfully or
justifiably implemented in isolation. First, law is not the main, or even
major, vehicle in the total framework for the reinforcement of morality; it is
the individual’s belief, his God-consciousness and taqwa, - that inherent and
innate quality which makes him want to refrain from what displeases God
and do what pleases Him. Second, justice is a positive ideal which permeates
and dominates the entire community life; it is not merely an institutionalized
means of inflicting punishment. Third, and consequently, a whole
environment is established where to do right is encouraged, facilitated and
found easy and to do wrong is discouraged, inhibited and found difficult. All
men and women are enjoined, as their foremost duty, to aid, exhort and
commend each other to do good and to avoid evil.
FUNCTIONAL NATURE
Penalties in Islam are more of a functional nature, to regulate and deter.
God has laid down a body of mutual rights and obligations which are the true
embodiment of justice. He has also laid down certain bounds and limits to be
observed and maintained for this very purpose. If men and nations desire to
move in peace and safety on the highways of life, they must stick to the
‘traffic lanes’ demarcated for them and observe all the ‘signposts’ erected
along their routes. If they do not, they not only put themselves in danger,
but endanger others. They therefore naturally make themselves liable to
penalties –not in vengeful retribution – but to regulate the orderly
exchanges in man’s life in accordance with justice.
It is a significant contribution of Islam that these penalties are called hudud
(boundaries) and not punishments: they are liabilities incurred as a result of
crossing the boundary set by God. An important consequence of these
hudud having been laid down by God, and not by man, is that it is beyond
human authority to reduce or supercede them out of a sense of mercy
greater than that of God; nor can a tyrant or autocrat add to them out of a
greater sense of strict justice. For no one can be more merciful or wiser or
more just than God himself.
Another important function which these punishments serve is educative, and
thus preventive and deterrent. The Qu’ran alludes to this aspect when it
describes them ‘as exemplary punishment from God’ (al-Ma’ida 5:38).
Punishments are thus designed to keep the sense of justice alive in the
community by a public repudiation of the acts violating the limits set by God.
They are expected to build up in the society a deep feeling of abhorrence for
transgression against fellow human beings, and therefore against God - a
transgression which, according to the Qur’an, is the root cause of all
disorders and corruption in human life.
RETRIBUTION - QISAS
Apart from punishments for transgressions like extra-marital sex, theft, libel
and drinking, the Qur’an also provides for the principle of qisas – retribution.
When a person causes physical injury or harm to a fellow human being,
Islam gives the injured party the right of equal requital – the well-known
principle of ‘an eye for an eye, a tooth for a tooth’. This procedure is
persistently labeled by critics as primitive and uncivilized. In the Islamic view
of history, it is worth pointing out, what is primitive has never been
necessarily uncivilized. The first man was given all necessary knowledge and
guidance, and though he may have been technologically backward compared
to the twentieth century, he definitely was not humanly backward.
Uncivilized is what man thinks and does in deviating from the divine order.
In the eyes of the Qur’an ‘in retribution (qisas) lies the source of life for you’.
The reasons are obvious. First, the right of retribution belongs to individuals,
not society or the state; this simple shift in responsibility results in a
profound and far reaching change in the whole system of implementing
justice. The state does not have to intervene every time two human beings
are involved in a dispute. Thus, instead of starting an irreversible process of
trial and punishment, it leaves the ground open for settlement between
individuals, without interference by impersonal bureaucratic machinery,
though under no circumstances can the individual take the law into his own
hands.
The injured person in his turn may forgo his right to retribution by forgiving,
or may agree to accept a monetary or token recompense instead. The
Qu’ran, in fact, highly recommends the act of forgiving. Thus, under qisas
punishment is avoidable without burdening the executive or judiciary with
the dilemma of whether to exercise mercy. As against a court which must
act according to law once a case is brought before it, an individual is free to
act as he wishes. Justice has to be blind, but an individual may take
circumstances into account, and suspend judgement in the hope of being
forgiven by God in the hereafter. Very few realize hat the principle of qisas
even allows capital punishment to be avoided.
MERCY AND LENIENCY

Having prescribed punishments and imposed strict and meticulous, though
not impossible, conditions of evidence, Islam has built in a whole range of
principles and precepts which reflect not a frenzied desire to flog and stone
but a compassionate urge to avoid and eschew. Islam does not allow either
the state or individuals to spy upon people unless well-founded suspicion
exists that a crime is being committed or a fellow human being’s rights or
interests are in jeopardy. Nor is it obligatory to report every crime. Where
possible, settlements outside court are preferred. The punishment is swiftly
over; the guilty man and his family do not have to live with the kind of
lengthy public stigma that they would have had to endure in the case of a
prison sentence at the end of a trial. The imposition of divinely prescribed
hudud enhance, and not diminish, the individual’s dignity and stature in
society and before God.
ALLEGED CRUELTY
As to the alleged cruelty of physical penalties, one wonders if to deprive a
man of his freedom -- his most precious and valuable possession – and his
right to act and continue to make moral choices , to live with his family, to
work and support them is not more cruel. Indeed, a prison term can inflict
untold misery on innocent people whose lives are intertwined with the life of
the prisoner. Prison becomes a school for hardening criminal behavior and a
breeding ground for recidivism. Why should it be considered more cruel for a
man found drug trafficking to be given ten lashes than to be sent to languish
in prison for, say, ten years.
REFORM SYNDROME
Why does Islam want to punish and not reform? The question is fallacious,
for in Islam every institution of society is value oriented and owes a
responsibility towards the moral development of every person from the
cradle to the grave. Reform is therefore a pre-crime responsibility and not a
post-crime syndrome and nightmare. Islam makes every effort to ensure
that inducement to commit crime is minimal. Once the crime is committed,
the best place for reform is in the family and in society, where a criminal is
to live after punishment, and not in a prison where every inmate is a
criminal; unless of course a society considers itself to be more corrupt and
less competent to effect reform than a jail! Against this, the ‘modern,
enlightened’ approach is to provide every inducement to crime by building a
society based on conspicuous consumption; to make society, education and
every other institution ‘value – free’ and then to try to reform a criminal by
segregating him and keeping him in a prison.
PROCEDURAL JUSTICE
Sentences in Islam are certainly harsh, but still more strict and severe are
the procedures laid down to be observed before a man may be convinced.
These procedures are modeled on the paradigm of the Day of Judgement,
when even God, though he is All-knowing, and Just, will not punish anybody
unless He establishes his guilt. To let nine criminals go free is preferable to
convicting one innocent man, said the Prophet.
CONCLUSION
The Shari’ah is an integrated homogenous whole. Once one understands its
basic concepts, objectives and framework, one cannot but conclude that it is
capable of creating the most human and just society, a peace and blessing
for mankind. Difficulties only arise when critics try to measure the ocean of
divine knowledge, wisdom and justice with their own thimble of pedestrian
criteria and standards.
Today’s Muslim societies are not model societies — they are infested with ills
and evils – yet the comparatively stable family life, absence of delinquency,
low crime rates, much greater freedom from drugs and alcoholism, warmth
of brotherhood, generosity and mutual aid and help – all these are the
legacies of that divinely given code of life, the way to Justice, which once
they used to adhere to, and yearn to have the change to return to – the
Shari’ah.
( typing by abujihad – 1999 )
The Evils of Zina (Fornication)
What is Zina?
There are many forms of Zina, but what we are addressing here is the
highest form. This is adultry, fornication, having sexual intercourse wihtout
being married to the person.
Allah (SWT)'s order in the Quran to stay away from Zina.

And those who invoke not any other god along with Allah, nor kill such life as
Allah has forbidden, except for just cause, nor commit illegal sexual
intercourse (zina) and whoever does this shall receive the punishment. The
torment will be doubled to him on the Day of Resurrection, and he will abide
therein in disgrace; except those who repent and believe and do righteous
deeds, for those Allah will change their sins into good deeds, and Allah is Oft
Forgiving, Most Merciful. (al-Furqaan # 25, ayat # 68-70)
And come not near to unlawful sexual intercourse. Verily, it is a faahishah (a
great sin) and an evil way. (Sura Al-Israa # 17 ayah # 32)Imaam al-Qurtubi
(may Allah have mercy on him) said: The ulama said that the phrase And
come not near to unlawful sexual intercourse is more eloquent than merely
saying Do not commit zinaa, because the meaning is, Do not even come
close to zinaa. This means not doing any deed that may get close to zinaa or
lead to it, such as being alone with a member of the opposite sex, touching,
looking, going to evil places, speaking in a haraam manner to a woman to
whom one is not related, thinking about and planning immoral acts, and so
on.
"Tell the believing men to lower their gaze (from looking at forbidden
things), and protect their private parts (from Zina illegal sexual acts, etc.).
That is purer for them. Verily, Allh is All-Aware of what they do. And tell the
believing women to lower their gaze (from looking at forbidden things), and
protect their private parts (from Zina illegal sexual acts, etc.) and not to
show off their adornment except only that which is apparent (like palms of
hands or one eye or both eyes for necessity to see the way, or outer dress
like veil, gloves, head-cover, apron, etc.), and to draw their veils all over
Juyubihinna (i.e. their bodies, faces, necks and bosoms, etc.) and not to
reveal their adornment except to their husbands, their fathers, their
husband's fathers, their sons, their husband's sons, their brothers or their
brother's sons, or their sister's sons, or their (Muslim) women (i.e. their
sisters in Islm), or the (female) slaves whom their right hands possess, or
old male servants who lack vigour, or small children who have no sense of
the shame of sex. And let them not stamp their feet so as to reveal what
they hide of their adornment. And all of you beg Allh to forgive you all, O
believers, that you may be successful." (Sura # 24, Ayat #30 and 31)
Hadith warning against not even coming close to Zina Some persons from
Banu Hisham entered the house of Asma' daughter of Umays when AbuBakr
also entered (and she was at that time his wife). He (AbuBakr) saw it and
disapproved of it and he made a mention of that to Allah's Messenger
(saaws) and said: I did not see but good only (in my wife). Thereupon
Allah's Messenger (saaws) said: Verily Allah has made her immune from all
this. Then Allah's Messenger (saaws) stood on the pulpit and said: After this
day no man should enter the house of another person in his absence, but
only when he is accompanied by one person or two persons. (Sahih Al-
Bukhari Book 25, Hadith # 5403)
Abd-Allaah ibn Masood (RAA) said: I asked the Messenger of Allaah (SAW),
Which sin is worst in the sight of Allaah? He said, To make any rival to Allah,
when He has created you. I asked, Then what? He said, To kill your child for
fear that he will eat with you. I asked, Then what? He said, To commit zinaa
with the wife of your neighbour. (Reported in Sahih Al-Bukhaari, Hadith
#492 and In Shaih Muslim, Hadith #90).
Rasulullah (SAW) explained: If one of you were to be stabbed in the head
with a piece of iron it would be better for him than if he were to touch a
woman whom it is not permissible for him to touch. (Reported by al-
Tabaraani; see also Saheeh al-Jaami, 5045). This refers to the punishment
for touching, so how about worse deeds, such as embracing and kissing, and
even worse kinds of illicit activity?
Rasulullah (SAW) said, "Whenever a man is alone with a woman the Devil
makes a third."(Al-Tirmidhi 3118, Narrated Umar ibn al-Khattab , Tirmidhi
transmitted it as authentic) note: So we should always try not to be alone
with a woman who is not mahrum to us and not even go close to Zina.
Repentence from Zina

Ibn Abbaas (RAA) said: There is no major sin if one asks for forgiveness,
and there is no minor sin if one persists in repeating it.
So if one wants to repent from haning made the great sin of Zina he should
remember these 4 things..
1. 1) Do not despair, for Allah the Most Exalted and Glorified said in the Quran
"Say: Oh my servants who have transgressed against their souls! Despair not
of the mercy of Allah, for Allah forgives all sins; for He is oft-forgiving, most
merciful." [Surah 39,Verse 53]
2. 2) Let your repentance be truly from your heart, and stay away from all
sources of temptations. Also, perform many good deeds, as good deeds
abrogate the bad ones.
3. 3) If you repent to Allah, you are no longer described as a fornicator (zaani).
Therefore, you can marry a chaste woman.
4. 4) The believer has high hope and aspiration for the best from Allah. He not
only asks Allah for making his punishment easy in hellfire, but he also prays
to Allah the Almighty to save him from Hell and award him with paradise for
his repentance and good deeds.
(source: http://members.tripod.com/dawaa/zina.html)
Encountering Islamic Law

John Strawson [This essay was originally presented at the Critical Legal Conference held
in New College, Oxford, September 9 - 12 1993. I would like to thank those who have
commented on it, in particular, Colin Sumner, Hilary Lim and Phil Marfleet. In addition I
would like to thank two other specialists in the field Ahmad Mehdi of the BBC World Service
and Abdurahman Jaffar for their invaluable insights. I must also thank Peter Fiitzpatrick for
encouraging me in this work at an earlier stage.]
"I am here because I want Egypt to be governed by Islamic Law"
"We need no lawyer God is our defence"
"There is only one Court case and that's before God"
"You are implementing Western Law on us" [Islamic militants on trial in a Cairo
court quoted by Robert Fisk, The Independent, London, 28 June 1993.]
The Western encounter with Islamic law has reached a critical moment as
the contours of a new world order emerge. Islamist political movements,
within the Islamic world and the West, insist that we consider the role of the
West in world order. This paper explores aspects of this strident encounter
through a scanning of representations of Islamic law in selected Western
literature and some Islamist responses. It argues that orientalism is the
dominant trend within the literature and has constructed strong and
enduring images. The consequences of these representations are two-fold;
first that Islamic law is constructed as backward; and second that Western
legal systems are represented as superior. These constructions are
connected to the power relationship between the West and the Islamic
world. These Western representations find a response within some Islamist
scholarship which tends to attempt a reversal of the process altogether, with
Islamic law becoming the superior system and the Western legal systems
seen as decadent. However, these mutually exclusive representations are
not symmetrical and therefore equally powerful as they are dependent upon
an inequality of power. The purpose of this discussion is to make a
contribution to clearing the way for a non-Eurocentric reconstruction of legal
theory.
Much of the preparation for this paper was undertaken in Cairo, Egypt during
the first semester of 1993. My research took place against the background of
a turbulent political battle between the government and Islamist forces
during which scores of people were killed, thousands were detained and an
attempted assassination was made on the Minister of Information, a
neighbour in Heliopolis. These events have added edge to the academic
endeavour. The paper focuses on Egypt, and takes the form of a work in
progress report of a research project which aims at situating the
representation of Islamic law within wider Western scholarship. Islamic law
may have played at the margins of Western legal theory yet the Western
encounter with it reveals that colonialism is the ever present absence at its
centre. The starting point of my work was Said's Orientalism,[Edward Said,
Orientalism, Harmmondsworth: Penguin Books, 1978.] which throws into relief the
Eurocentric character of much of modernism and indeed postmodernism.
Law and Orientalism
This paper argues that, despite its changing language, the Anglo-American
critiques of Islamic law remain within the orientalist problematique. Islamic
law has been represented within Anglo-American scholarship as an
essentially defective legal system. The terrain of the critique has changed
from the defence of colonial rule during the age of imperialism to
contemporary claims about human rights, democracy and pluralism. The
problem with this critique is that it replicates the power relationship between
Europe (and the United States) and the Islamic world. The argument that
Islamic law is defective nourishes the perception that European law is
complete. As a consequence, a genuine engagement with Islamic law
becomes problematic as every encounter is drawn onto the terrain of the
orientalist narrative. A critique which is based on superiority and political
power, rather than on scientific inquiry, must be flawed. Given the
importance of the Islamic world in general, and the Middle East in particular,
to international peace, this flawed critique merely adds one more obstacle to
meaningful discourse and debate. The critique then becomes entangled with
Islamist discourses, through which mirror images of European and western
law emerge.
In my view, the search for a legal system which will enhance human rights
and dignity is a universal search in which no one culture has a privileged
starting point. The existence of conceptions of human rights, equality and
non-discrimination within legal cultures is dependent on our reading of their
narratives. In this process of reading, Western power has the ability to
command attention, through its influence in global intellectual life and
communications. This power to command attention, should not obscure the
essentially constructivist nature of Western texts which assert Western
superiority. Quite apart from enframing non-Western legal systems within
the orientalist gaze, the narratives of the West are themselves imprisoned
within a narrow provincialism masquerading as universalism. As Islamic law
clamours for attention considerations of theory and politics justify a review
of the contending narratives. Globalism offers a chance to challenge the
constructions of the colonial past.
Islamist movements are contenders for power in most Arab countries.
Despite differences in political programmes and strategy, the unifying
demand of these movements is the implementation of Shari'a or Islamic law.
Within the West, Islam has been painted in lurid colours for most of its
thirteen hundred years of existence. In Western modern popular culture
Islam is presented as a particularly violent and cruel religion.[ For a
contemporary discussion of the relationship between Islam and the West, see Akbar S.
Ahmed, Postmodernism and Islam, London: Routledge, 1992.] The adjective, fanatical,
is frequently used to describe it. This is the culmination of a Western cultural
relationship with Islam, which at least since the Crusades, has seen it as the
'religion of the Sword.' Islamic law is presented within Western popular
culture, as the repressive element of this cruel religion. Undoubtedly in the
popular mind Islamic law is linked to two images: the application of the
punishments for certain crimes (huddud) [ Islamic law has three categories of
crime, huddud, jinayat and ta'zir. The first comprise a series of offences, which carry a strict
penalty which must be applied and is therefore not subject to any discretion. There are six
such offences, sariqa (theft), haraba (rebellion or highway robbery), zina (fornication), qadh
f (unproven accusations of fornication), sukr (intoxication), and ridda (apostasy). The fixed
penalties for these offences which include public stonings, whipping, amputations and
executions receive a great deal of public attention. The other categories deal with murder
and bodily harm (jinayat) and discretionary offences (ta'zir).] including the
amputations of arms and legs and public stonings; and the oppression of
women. Western academic accounts of Islamic law, while not so lurid, tend
to construct a view of Islamic law as aberrant and backward if sometimes,
exotic.
There are good reasons for analysing the Anglo-American construction of
Islamic law in the context of Egypt. [ For analysis of the roots of the current legal
system in Egypt see, Enid Hill, Mahkama! - Studies in the Egyptian Legal System, Courts
and Crimes, Law and Society, London: Ithaca Press, 1979 and Farhat J. Ziadeh, Lawyers,
The Rule of law and Liberalism in Modern Egypt, Standford: Hoover Institution, 1968.]
Egypt is not only the largest Arab country, but it is also a centre of Islamic
jurisprudence as the home of the Al-Azhar University. Egypt has also been
the soil which has nurtured modern Islamist politics with the foundation of
the Muslim Brotherhood in 1928. Egypt's relations with the Western imperial
powers is a long and complicated one. The nineteenth century began with
the Napoleonic occupation and ended with the British Protectorate. Despite
its formal position as part of the Ottoman Empire, the country saw the
establishment of large Western foreign communities throughout the
nineteenth century. These communities (or colonies) were the bridgehead of
Western influence which closely guarded their commercial and national
interests. British influence, which became paramount after 1882, remained
pre-eminent until the 23 July Revolution of 1952 which resulted in the
coming to power of Gamal Abdul Naser. This historical context continues to
influence the encounter between the post-Cold War West and Islamist
movements.
The representation of Islamic law both in popular culture and academic
literature in English is redolent with colonial idioms, rooted in the orientalist
project, and in particular is reliant on the theory of oriental despotism. I am
indebted to the work of Edward Said in approaching the question of
orientalism which he has explored in Orientalism (1978) [Edward Said,
Orientalism, supra n.3.] and more recently in Culture and Imperialism (1993).
[ Edward Said, Culture and Imperialism, London: Chatto & Windus,1993.] The former
book has had a profound impact upon both cultural studies and most
disciplines connected to area studies of the Middle East, North Africa and
South Asia. For Said:
"The Orient is an integral part of the European material civilization and culture. Orientalism
expresses and represents that part culturally and even ideologically as a mode of discourse with
supporting institutions, vocabulary, scholarship, imagery, doctrines even colonial bureaucracies
and colonial styles." [Edward Said, Orientalism, 2.]
I have taken elements of this methodology which were developed largely in
relation to literature and applied them to the construction of Islamic law in
English texts. [Said's work has provoked much controversy for a summary of the debate
see: John M. MacKenzie, Orientalism, History, Theory and the Arts, Manchester and New
York: Manchester University Press, 1995, 1-19; and Bill Schwarz, "Conguerors of truth:
refelctions on postcolonial theory," in Bill Schwarz (ed.) The Expansion of England, London:
Routledge, 1996, 9 - 31.] I argue that secreted within the works of scholars and
colonial administrators a legal orientalism emerges which sustains Said's
thesis that 'European culture gained strength and identity by setting itself off
against the orient as a sort of surrogate and even underground self'. [Edward
Said, Orientalism, 3.] In the field of law, the texts nourish what Said calls a
'sovereign Western consciousness'. The purpose in this exploration is the
attempt to reflect on the engagement between Western and Islamic legal
systems, as revealed through textual constructions, while keeping the texts
within the purview of historical developments and contemporary political
dynamics. In proposing this course I am aware that I could be treading an
uncomfortable theoretical path between apparent textual deconstruction and
apparent critical realism. This unsatisfactory situation arises in part from
Said's incomplete reading of Foucault which forms the basis of his
methodology in Orientalism. As Young has observed:
"Foucault had a lot to say about power, but he was curiously circumspect about the ways in
which it operated in the arenas of race and colonialism. His virtual silence on these issues is
striking. In fact Foucault's work appears to be so scrupulously Eurocentric that you begin to
wonder whether there isn't a deliberate strategy involved." [ Robert J. C. Young, 'Foucault on Race and
Colonialism,' New Formations, No. 25 (1995), 57 - 65, at 57.]
As Young points out it is a paradox that Foucault's work has become the
basis for postcolonial analysis and for Said's pioneering work. [Edward Said
says "I have found it useful here to employ Michel Foucault's notion of discourse, as
described by him in The Archaeology of Knowledge and in Discipline and Punish, to identify
Orientalism." See: Said, Orientalism, 3.] This paradox, together with the
problematique associated with the textual deconstruction of historical and
cultural narratives, assigns us a theoretical task. On the latter point,
Douzinas and Warrington, following Derrida, are helpful:
"Taking the text (not necessarily merely the mean Writ-ten of particular forms, but of course
including other texts which provide necessary contexts such as the historical and the economic
etc., the fact that texts necessarily consist of the combination and reintegration of reiterated
fragments) is frequently the way analysis must start, if only because there is nothing else."
[ Costas Douzinas & Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and the Law, New York: Harvester
Wheatsheaf, 1994, 243-244.]
This is a good starting point for the analysis of the Western texts, but I want
to reserve my position on its applicability to Islamic texts.
In the West, where there is a rising crescendo of rhetoric which attacks
Islam and the Arab world, 'Islamic fundamentalism' has become in some
circles a replacement for the threat of communism. [ See: John L. Esposito, The
Islamic Threat: Myth or Reality?, New York and Oxford: Oxford University Press, 1992.] I
will not be using the term 'fundamentalist' which is in origin a Western
appellation for Protestant Christian movements in North America and seems
particularly inappropriate in coming to grips with Islamic movements in the
Middle East. I will be using the term, Islamist to refer to radical Islamic
movements. [ For an exploration of these issues, see Armstrong, Badawi and Magonet,
'Jews, Christians and Muslims living together in a pluralist Western European Society,'
Jewish Quarterly No 148 (Winter 1992-3) 35. The term fundamentalist has an implication of
a return to a particular historical foundational text or moment, whereas the movements I
am talking about are product of contemporary circumstances with programmes which
arguably are in some senses modernist, see: Youssef M. Choueiri, Islamic Fundamentalism,
London: Printer Publishers, 1990.]
Law plays a critical role within Islamist movements as a matter of theoretical
concern and also most importantly perhaps, as the leading programmatic
demand, the implementation of shari'a, a demand which unites often
conflicting Islamist organisations. As Chibli Mallat has observed, "the
concern of the Islamist advocates has primarily taken a legal form." [ Chibli
Mallat, The Renewal of Islamic Law: Muhammad Baqer as Sadr, Najaf and the Shi'ite
International, Cambridge: Cambridge University Press, 1993, 1. This work is an important
contribution to Islamic jurisprudence, although a detailed consideration of it is outside the
scope of this paper.] Indeed for Mallat, Islamist politics has been determined by
the theoretical output of the Najaf law schools of southern Iraq, which have
been the international Shi'a centre of Islamic renewal. It was in Najaf that
under the inspirational leadership of Muhammad Baqer as Sadr that the
theoretical foundation for the Iranian Islamic movment was created in the
1960's and 1970's. The impact of the subsequent Islamic Revolution in Iran
on world politics has created a major debate on the role of Islam in world
order. To some observers Iran and Islamist politics are inextricably linked.
Mallat argues that 'at the heart of the renewed interest in Islamic thought
world-wide, is without doubt the success and durability of the Islamic
Revolution in Iran'. [ Chibli Mallat, The Renewal of Islamic Law: Muhammad Baqer as
Sadr, Najaf and the Shi'ite International, Cambridge: Cambridge University Press, 1993, 5.]
This is true for scholars and other observers in the West, but the Iranian
Revolution has had a more contradictory impact on the Islamic world. It is
important to take into account the fact that Islamist movements are far
more pluralist and diffuse. In addition rivalries between them mean that
Islamist movements are rarely united, let alone a conspiratorial force.
Mallat's proposition is that without the Iranian revolution there would be no
significant Islamic movement today and that without the Najaf Law Schools
there would have been no Iranian Revolution. Without underestimating the
influence of the Islamic revolution, its role has had some contradictory
aspects. Mallat is correct to point out the pivotal role which law plays in the
current Islamic revival. The Iran revolution marks an important moment in
the development of the current Islamist movement, although it can be
argued that the Iranian Revolution has been an impediment to the
development of Islamist movements in the Arab world. [ There are two
exceptions to this which are Iraq and Bahrain both of which have Shi'a majority populations
although are governed by Sunni elites.] There are several inter-linked reasons
behind this argument. First, Iran is a Shi'ite country, whereas most Arab
countries, with the exception of Iraq and the sui generis position of Lebanon,
are overwhelmingly Sunni. Second, Iran, as a Persian power, is seen as
outside the framework of Arab politics. Its attempts at spreading the
"Islamic Revolution" can therefore be presented as an interference in the
affairs of the Arab world (a point that many Arab leaders, including President
Hosni Mubarak, never tire of lecturing the Islamists of their own countries).
Third, the long Iraq-Iran war created a great deal of Arab solidarity with Iraq
against Iran. Fourth, and perhaps the most important issue, relating to the
character of the Shi'ite/Sunni [ Islam divided into two main trends over the succession
and role of Ali (656 CE), the majority the Sunni (derived from al-sunna [the tradition]) first
accepted the caliphate of Ali but then rejected him and his successors. The murder of
Husayn at the Battle of Karbala (682 CE) sealed this division, the term Shi'a derives from
shi'at Ali, the partisans of Ali. Today the vast majority of Muslims are of the sunni trend with
about 10% adhering to the Shi'a, mainly in Iran, Iraq, Lebanon and Pakistan, although
there are communities throughout the Islamic world.] split, is the fact that Iranian
Islamism is a clerical movement, whereas most Arab Islamist movements
are largely anti-clerical. [ This process may well be in the process of changing, as one
of the effects of the current policy of the Egyptian government has been the promotion of
the official clergy through the mass media as means of gaining Islamic credibility in the face
of the Islamist threat. This has a contradictory effect of promoting the role of the clergy in
society. What remains true is that the focus of much hostility amongst the Islamist groups is
towards the official clergy who, as a whole are held to be corrupt, and this is proved by their
collaboration with the secular government.] These factors could be said to combine
to retard the development of Islamism within the Arab world and this can be
seen particularly in Egypt.
Shari'aShari'a
Islamic law (shari'a) derives from the Qur'an and from the sunna. The
Qur'an is regarded by Muslims as the divine revelation from God, through
the Angel Gabriel, to his last prophet Mohammed (c. 570 - 632 CE). [Non-
christians feel more comfortable with these terms.] Muslims believe that the Qur'an
is a sacred text which contains the basis for all aspects of life. The sunna
comprises of the traditions of the Prophet and his companions that elaborate
the jurisprudence contained within the Qur'an. Islamic law was developed
from the systematic application of the principles of the Qur'an and the sunna
by leaders of the Islamic communities which were established in the first two
centuries after the hijra [622 CE]. In these two hundred years, Islamic
jurisprudence (usul al-fiqh) developed with a particular juristic system of
legal norms (furu' al-fiqh) , which permitted a living legal system covering all
areas of social regulation, in Western categories, from criminal law to family
law, from constitutional law to public international law. From the Islamic
standpoint, Islamic law is a system of regulation that stems from human
political authority but is itself created by God. In a sense, duties to other
human beings, whether your equal or political superior, constitute a duty to
God. Law is thus perceived as constituting an integrated part of social
organisation and is not seen a separate branch of human activity. Law, both
as jurisprudence and as a normative system is an articulation and an
expression of God's will. As a consequence, within the Islamic outlook, it is
difficult to conceive of a secular state or a secular legal system. There is a
central debate within Islamic jurisprudence on the character of the
conditions under which shari'a can be introduced. There are those who argue
that this is only possible within the context of a thoroughly Islamic society,
such as the Prophet established in Medina in the seventh century (CE).
Others regard such a proposition as idealised and put forward a twentieth
century Islamic state as a model.
The development of both usul al-fiqh and furu' al-fiqh took place through the
deliberations of the leadership of the Islamic community (al-ulama) , who
would issue texts and opinions (fatwas) as well as review the day to day
activity of judges and administrators. It is indeed through the activity of the
ulama that ijma or consensus is achieved which is the necessary condition
for the formation of legal principles. Islamic legal discourses are thus found
within the texts and certainly no positivist legal code. Thus the development
of Islamic law itself has been subject to historical processes which have
given rise to distinct discourses which have in turn produced different
schools. Broadly speaking there are significant differences between the sunni
and shi'ite legal traditions with special currents of opinion within each. These
essentially turn on the role that the clergy play in society as a whole and in
particularly the elaboration of law. Amongst the majority sunni branch there
are four well acknowledged schools; the Hanafi school of Baghdad (named
after abu Hanifa [700 - 767 CE]), the Malikite school of Medina (named after
Malik ibn Anas [710 - 795]), the Shafi'ite school (named after Mohammed
al-Shafi'i [767 - 820 CE]) and the Hanbalite school (named after Ahmad ibn
Hanbal [780 - 855 CE]). Amongst the Shi'ites, there are three main schools,
the largest of which is the Imamiya; the other two are the Zaydiya and the
Isma'ilya Shi'a. This diversity of traditions and interpretations should be born
in mind when thinking about the nature of Islamic law.
However, Western students of Islamic law should be wary of merely looking
at the sociological or historical classifications of schools of juristic thought. It
is necessary to take in account that its religious character endows it with
legitimacy. For a Muslim, shari'a is the application of divine will and as
Abdullahi Ahmed An-Na'im reminds us,
"To Muslims, Shari'a is the "whole Duty of mankind", moral and pastoral theology and ethics,
high spiritual aspiration, and detailed ritualistic and formal observance; it encompasses all
aspects of public and private law, hygiene, and even courtesy and good manners." [ Abdullahi
Ahmed An-Na'im, Towards an Islamic Reformation, Cairo: The American University in Cairo Press, 1992, 11.]
Thus one of the special characteristics of Islamic law is that it constitutes an
existing system of sacred law in the contemporary world. It is in this that
much juristic work needs to be done in order to understand both the roles of
shari'a within Islamic societies and in its contribution to the wider
international legal community. The Islamists understanding of the role of law
constitutes a serious challenge to much of what we might call the Western
jurisprudential lineage.
Law in the orientalist gaze
Within the European world, Islamic law has been studied as integral to the
orientalist project. Orientalism, as an area of academic interest grew
alongside colonialism and to some extent served it by providing both an
apparent store of positive knowledge and a series of ideological explanations
of the culture and societies of the occupied lands. It is only relatively
recently that (Western) jurists have taken a specific interest in Islamic law.
Within the orientalist lineage it has been largely seen as a branch of history,
administration or general Islamic studies. Indeed the leading text, which has
had so much influence on current thinking, Introduction to Islamic Law by
Joseph Schacht [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University
Press, 1964.] is a case in point. The interesting aspect of this work and of most
others in this field, is the methodological context in which Islamic Law is
presented, (or more accurately constructed) and then defined, (or confined).
In setting the scene, Schacht tells us;
"[t]he Arabs were and are bound by traditions and precedent. Whatever was customary was right
and proper; whatever the forefathers had done deserved to be imitated. This was the golden rule
for Arabs whose existence on a narrow margin in an unpropitious environment did not leave
much room for experiments and innovations which might upset the precarious balance of their
lives." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
It should be noted that this passage is not written only in the past tense.
What he is saying of Arab society at the time of the Prophet is also true of
Arab society in the age of nuclear weapons. This underlines the fact that
orientalism is a tool of social explanation which has a current purpose in
structuring the relationships between the West and the East. It is also
noticeable how Schacht writes of traditions, customs and precedents. These
are presented as essentially Arab. Yet he is writing against the background
of the United States of America, which possesses a legal system which in
many areas is based on the common law, whose whole basis is precisely
tradition, custom and precedent. Schacht, however, does not reflect on this
paradox, quite to the contrary he regards reliance on precedent as being the
hallmark of Arab society; "[i]n this idea of precedent or sunna the whole
conservatism of the Arabs found expression." [ Joseph Schacht, Introduction to
Islamic Law, Oxford: Oxford University Press, 1964, 17.]
Schacht builds the case for the sunna as the barrier to adaptation or
modernisation, seeing it as the means for undermining anything new within
Arab society; "The idea of sunna presented a formidable obstacle to every
innovation, and in order to discredit anything it was, and still is, enough to
call it an innovation." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford
University Press, 1964, 17.]
Schacht, has to deal with the contradiction that Islam itself was a
revolutionary intervention into Arab Society which destabilised the very
conservatism of the Arab society which he has described. Given his views it
is very difficult not only to understand the emergence of Islam in the Arabian
peninsular, but its rapid expansion throughout the entire Arab world in the
matter of decades. All that Schacht can bring himself to say is that, "Islam
the greatest innovation that Arabia saw, had to overcome this obstacle, and
a hard fight it was." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford
Without any explanation as to how it was overcome Schacht rationalises that
"the old conservatism reasserted itself; what had shortly before been an
innovation now became a thing to do, a thing hallowed by precedent and
tradition a sunna." What Schacht omits to explain is how the new norms, the
'innovations' have come to be accepted. He sees rather ''this ancient Arab
concept of sunna" becoming "one of the core concepts of Islamic law." In
other words, he notes that Arab society adapts past culture forms of law-
making to radically new conditions. This process is common in the legal
history of many societies in the wake of revolutionary change. The English
common law for example has been adapted from its feudal form to modern
industrial society. The important contents of the legal system, its norms,
have changed radically. This was also the case with Arab society in the
seventh century. The Prophet Muhammad and his companions, in an effort
to transform and enlighten their society (and the world), harnessed previous
customs and practices to this task, whilst endowing them with new
meanings. Schacht, however sees only Arab society in a one-sided way. A
priori it is conservative. Despite the revolutionary upheaval caused by the
coming of Islam, which overthrew the political elite and Arab society quickly
reasserted its true nature by employing the method of the sunna. This Arab
society is regarded as being essentially rooted in conservative and backward
looking practices. Its legal system will therefore necessarily reflect this,
acting as a form of regulation to both hold back the development of society
and its adaptation to historical processes. In other words the nature of Arab
Society and its legal system is to act as a barrier to the modern world. Arab
society becomes a preserve of the exotic and the aberrant, a historical
theme park. The orientalists also seek to narrow the preserve of Islamic law.
Schacht makes it quite clear that he is using the concept of law "in the
narrow meaning of the term:"
Worship and ritual, and other purely religious duties, as well as constitutional, administrative and
international law have been omitted, the first because they developed under different conditions
and in close connection with dogma, the second on account of its essentially theoretical and
fictitious character and the intimate connection of the relevant institutions with the history of the
Islamic states rather than with the history of Islamic law." [Joseph Schacht, Introduction to Islamic Law,
Oxford: Oxford University Press, 1964, 112.]
This passage is noteworthy as constitutional, administrative and
international law are regarded as being "theoretical and fictitious." These
branches of law, even within western discourse, have their sceptics, and any
student of the British constitution would be forgiven for thinking that it is
essentially "theoretical and fictitious." Indeed it would be impossible to study
it at all without grasping the "intimate connection of the relevant institutions
of the [British] state." However, study of British constitutional law is quite
widespread, as is administrative law and Western perceptions of
international law. Schacht's arguments have the effect of de-legitimising the
contribution of Islamic jurisprudence in these fields. It is interesting that he
selects for exclusion those areas where Islamic law would define state power
and regulate international relations. In discussing substantive law Schacht
largely confines Islamic law to personal status and criminal law. In these
areas the habits of a conservative, albeit exotic, society can be portrayed
picturesquely, but without any threat to the legitimacy of the power of
Europe. Thus in Said's terms a "strategic location" creates a sense of
'referential power.' Schacht achieves this by reducing of the scope of Islamic
law through excluding the fundamental issue of power and authority. In
concert with orientalists of the eighteenth and nineteenth centuries he
commands the ultimate power to construct what Islamic law will be. [ For a
development of this view see: John Strawson, Islamic Law and English Texts, Law and
Critique, Vol. VI No 1 (1995), 21-38.]
In the field of public international law, there is a widespread belief that it is
entirely of Western pedigree. Rebecca Wallace, claims that the "international
system is of recent origin," and that it "stems from the rise of the secular
sovereign state in Western Europe." [ Rebecca M M Wallace, International Law,
London: Sweet & Maxwell, 1992, 4. Similar views are found in most texts on Public
International Law.] Similar views are found in most texts on Public International
law. This is so commonly held that even Butros Butros Ghali, Secretary
General of the United Nations (and former Professor of Public International
Law at Cairo University) can write about the "great project of international
law that began with Grotius over three centuries ago." [Al-Ahram Weekly, Cairo,
No. 113 (April 22 - 28 1993).] Yet in the eighth century of the Common Era,
Islamic jurists had produced al-siyar, juristic texts which dealt with issues
which Europeans, at a later date, came to call international law. Al-
Shaybani's siyar, [ See: Majid Khadduri, The Islamic Law of Nations, Shaybani's Siyar,
Baltimore: The John Hopkins Press, 1966.] for example, was written by the end of
the eighth century (CE), some eight hundred years before Grotius set pen to
paper. Al-Shaybani's text contains detailed codes on the Law of War, the law
of occupation, the law of treaties and diplomacy and the rights of foreigners.
In passing it has much of interest to those concerned with the legal
protection of the environment. Many of Al-Shaybani's propositions on the
Law of War, would not seem unfamiliar to the modern student of
international law. However, Schacht's relegation of Islamic international law
to "fiction," is reflected in the main texts on Public International Law in the
West. Western power successfully projected the image that, along with the
motor car, it too invented international law.
Yet, the well known article 38 of the Statute of the International Court of
Justice which states that the "law of civilised nations" is a source of
international law, introduces some ambiguity to this claim. Discarding the
colonial phraseology of this article, and reading it as "major legal systems of
the world," Islamic Law has as much claim as any other system to be
included. Indeed this is underlined by the decision of the International Law
Association which has established a committee to discuss the role of Islamic
Law within International Law on the grounds of the "need for understanding
and dialogue between different intellectual and religious traditions which
bear on international law and relations." [ See: International Law Association,
Report of the Sixty-Fifth Conference [1992],Cairo: El-Fania, 1993, 4.]
However, Schacht was not alone in regarding Islamic international law as in
some way defective. Even Majid Khadduri, the translator of Al-Shaybani's
Siyar can explain the conditions that have made possible "the integration of
Muslim states into the modern community of nations." His argument
[Khadduri, Islam and the Modern Law of Nations, 1956 American Journal of International
Law Vol. 50, 353-372 at 358.] is indeed an account of the systematic subjugation
of Islamic international law accompanying the political and military defeats
of the Ottoman Empire. According to this conception Islamic law is not so
much a source of international law, but a changed discourse which met
Western criteria of the 'modern law of nations.' Schacht's perception of
Islamic international law as a "fiction" rested on two hundred years of its
exclusion by European powers. In the great historical wave of this western
narrative, the idea of Islamic International law gains grudging acceptance
only at the moment of the decline of the power which gave it meaning, the
Ottoman Empire. Thus the centuries of al-siyar are enframed within the
relatively new Western international law.
When orientalists turn their attention to constitutional law issues, albeit in a
historical context, we can detect further subtle forms of the undermining of
Islamic legitimacy. Coulson, in his History of Islamic Law, [Noel Coulson, History
of Islamic Law, Edinburgh: Edinburgh University Press, 1964.] insists on analysing the
legal basis of Ummayyid and Abbasid states by reference to the
constitutional contribution of the European Enlightenment. For example, of
the Ummayyid state, (which ceased to exist in the Middle East and North
Africa in 750 CE), he says it "was not based upon any firm separation of the
executive and the judicial functions." [Noel Coulson, History of Islamic Law,
Edinburgh: Edinburgh University Press, 1964., 120.] Writing of the Abbasid dynasty
which lasted until 1258 CE, we are told, "the shari'ah courts never attained
that position of supreme judicial authority independent of political control,
which would have provided the only sure foundation and real guarantee for
the ideal of Civitas Dei." [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh
University Press, 1964., 121.]
It is extraordinary that centuries before the European Enlightenment, let
alone a thousand years before the American revolution, Coulson thinks it
appropriate to apply rule of law doctrines, such as the separation of the
powers and the independence of the judiciary, to his analysis of Islamic
government. During the same period it would be quite inappropriate to
analyse European legal systems from that standpoint. Both Coulson and
Schacht were writing in the 1960's. Both were committed orientalists and
genuine scholars attempting to bring Islamic law to the attention of Western
intellectuals and students. They were also writing before a serious debate
about the ideological nature of orientalism had begun. My argument is that
the significance of their work is the way in which they represent Islamic law.
The problem with seeing it as conservative, aberrant and to be kept out of
power-defining relationships (constitutional and international Law) is that the
whole is therefore represented as a defective legal system. This
representation makes any genuine comparative discourse very difficult.
From the beginning, in any comparison, Islamic law will not stand the test
against fully-developed Western Law.
Mayer continues this methodology into the 1990's in her, Islam and Human
Rights. [Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder
Co.: Westview Press, 1991.] Mayer is aware of the debates about orientalism and
understands the need to approach Islam in a sensitive manner. She
understands that issues of Islamic law need to be studied in the context of
Middle Eastern politics. Whereas scholars of Schacht and Coulson's
generation could avoid these issues, Mayer knows that they must be
addressed. She refers to Said's critique of orientalism at any early stage.
However, she adopts the curious view that it should not be extended to law,
"Said's idea of orientalism, is not a concept developed for application to the
field of Law or for evaluating whether governments of nations are adhering
to international legal norms." [Anne Elizabeth Mayer, Islam and Human Rights:
Tradition and Politics, Boulder Co.: Westview Press, 1991, 10. Mayer has removed this
sentance from the seond edition of her book, although she has not changed her views, as
she argues, "Although Said is not a lawyer and did not analyse legal scholarship, people
influenced by his arguments tend to expnd them to include legal scholarship, although Said
did not assert that all critical examination of Islamic institutions is infected by Orientalist
biases, his disciples seem inclined to draw this inference." See: Anne Elizabeth Mayer, Islam
and Human Rights: Tradition and Politics, Boulder and San Francisco: Westview Press,
1995, 7.] Mayer, as we shall see, is so wedded to this positivist approach that
she appears more concerned with Said's focus, literature, than with his
methdology.
Legal Orientalism
In Orientalism, Said does not deal with law in particular. He does, however,
in passing comment on the contribution of William Jones, "Jones' official
work was the law, an occupation with symbolic significance for the history of
orientalism". [ Said, Orientalism, 78. Said's point is rather understated as it was in fact
though the work of Jones that the British orientalist tradition in law began. From the late
eighteenth century onwards it was under his direction that the major translations of Islamic
law texts took place, Hamilton's, Hedaya, London: T. Bensley, 1791, Jones's own Al-
Sirajiyah, Calcutta: Joseph Cooper, 1792 and Baillie's Sara'i al-Islam (1792). It is through
the presentation of these works to an English audience, at the time largely composed of
colonial administrators, that the superior framework of English law is erected to analyse the
worth of Islamic law.] Indeed, Said reviews many of the canons of Orientalism,
most of which contain substantial contributions on law. The great classic
work by Edward Lane, Manners and Customs of Modern Egyptians [ Lane's
work was first published in 1836 and appeared virtually unchanged in various editions up
until 1895. References in this paper are from this edition which has been reprinted by East-
West Publications, London, 1978.], not only has chapters devoted to law and
government, but refers to legal issues throughout the book. Lane was not
alone and the major works produced on Egypt, including De Leon's, The
Khedives's Egypt [ Edward De Leon, The Khedive's Egypt, London: Sampson Low,
Marston, Searle & Rivington, 1877.], Milner's, England in Egypt [ Alfred Milner,
England in Egypt, London: Edward Arnold, 1892.], and Cromer's, Modern Egypt [ The
Earl of Cromer. Modern Egypt, London: MacMillan, 1911], all deal extensively with
law, including Islamic law. Milner's approach to law is clear, in writing about
the 'Native Courts' he says
"the Native Courts already administer a European system of law. If their personnel can be so
improved as to justify the assertion, that not merely the law they administer, but the spirit by
which they are animated, is up to the standard of European ideas of justice." [ Milner, (1892) 350.]
If the judges of the Native Courts are to be able to do their job, they need
not just know the law but they need to be motivated by "European ideas of
justice." This is a common theme in all the main works. European concepts
of law and justice are the true standards. This is a recognition, at the official
level, that the task of the colonial project is the 'Europeanization' of the
population.
De Leon, for example, writing even before the British occupation, is
impressed with some of the Khedive's reforms because his "native ministers"
are men "imbued with the European culture." Milner, however, is concerned
with the manner of the reception of European institutions and legal ideas. He
thinks that it is "the besetting sin of Orientals, when attempting to copy
European institutions, that they do so without a sufficient regard to the
differences of conditions." [ Milner, (1892) 327.] This line of argument leads to
one conclusion, that only Europeans can oversee the successful transmission
of such ideas and institutions. Sir William Hayter, a British appointed Legal
Advisor to the Egyptian government, underlines this attitude:
"If an Egyptian government can provide regular and peaceable administration for Egypt, so
much the better; but, if not, it as certain as anything can be that some Power or group of Powers
will be obliged to intervene to restore order. Bulgaria or Greece may be allowed a revolution or
so without interference, but not Egypt." [ Sir William Hayter, Recent Constitutional Developments in Egypt,
Cambridge: Cambridge University Press, 1924, 12.]
In a practical way, the legal branch in Egypt, as in India, was to provide a
cadre training experience for politicians. It is noteworthy that six out of
seven Prime Ministers of Egypt, in the ten year period from World War I to
the early 1920's, had been judges in the Native Court of Appeal. [ There are
many interesting aspects of the application of British colonial experience in India to the
situation in Egypt. In some cases administrators, (e.g. Sir John Scott, the Legal Adviser)
served in India before holding office in Egypt. The British experience of adapting Islamic law
to colonial requirements began in India in the late 18th century and one can surmise that
this had its impact on the administration of law in other territories.] This strong
relationship between law and politics in the functioning of colonialism
provides an important context in analysing orientalism. This also
demonstrates that Mayer's strictures that Said's Orientalism excludes law
and is mainly confined to 'anthropology and philosophy' would seem to be
erroneous. Mayer is content to create a modernist model for the evaluation
of Islamic Law. For Mayer all law can be divided into pre-modern and
modern.
This has the appearance of a transcultural approach, as the characterization
of legal systems is not strictly speaking located in culture but in time. Indeed
she also speaks of European natural law as pre-modern. Islamic law is
always pre-modern whereas European law, since the European
Enlightenment, is merely European Law. This creates a hierarchy of legal
systems in which European law can pass the modernist finishing post but
Islamic law cannot. This adds to the view that Islamic law is incomplete and
essentially defective. Indeed Mayer concludes her book with an explanation
of her thesis that Islam contains a "culture based resistance to rights." This
conclusion is rooted in the view of public international law, which we have
seen before in the work of Schacht and others. "The principle of the
supremacy of international law," Mayer writes, "is a given in the modern
international order." [ Mayer (1991) 209]
For Mayer, Islamic law confronts the international legal order. It is not part
of it, it is the 'other'. This raises a series of problems, not only for those
concerned with a critique of orientalism, but for those concerned with the
nature of international law. Public International Law is seen only in a
positivist framework, with definite, undisputed, norms. Although Mayer and
others insist that international law has sprung from a Western environment,
as indicated earlier, the sources of international law are not necessarily
Western. As a consequence there is no necessary opposition between
Islamic law and international law. Indeed on the contrary, Islamic law is part
of, a source of, public international law. By setting up her modernist model,
Mayer effectively de-legitimises Islamic law and therefore, despite her
awareness of the issues, sustains a methodology very much in the tradition
of the scholars in the 1960's, who were themselves products of an orientalist
lineage stemming from the eighteenth century.
Modernism
Islamic law is presented as incomplete and inadequate especially when
compared to 'modern' European and, by extension, international law. The
de-legitimising effect on Islamic law has its mirror image in the
representation of European law as a complete, established and definite legal
system, legitimate in all respects. This is what Said means by European
culture gaining 'strength and identity by setting itself off against the Orient'.
I have argued that with regard to international law, Mayer and others can be
challenged from within its own jurisprudence. For European law as whole, it
is necessary to consider carefully the implication that it is the legitimate
system. Mayer is clear on the importance of the West in the creation of law:

theory.
Law and Orientalism
law emerge.
exotic.
movements.
"The Orient is an integral part of the European material civilization and culture.
Orientalism expresses and represents that part culturally and even ideologically as
a mode of discourse with supporting institutions, vocabulary, scholarship, imagery,
doctrines even colonial bureaucracies and colonial styles." [Edward Said, Orientalism,
2.]

"Foucault had a lot to say about power, but he was curiously circumspect about the
ways in which it operated in the arenas of race and colonialism. His virtual silence
on these issues is striking. In fact Foucault's work appears to be so scrupulously
Eurocentric that you begin to wonder whether there isn't a deliberate strategy
involved." [ Robert J. C. Young, 'Foucault on Race and Colonialism,' New Formations, No. 25
(1995), 57 - 65, at 57.]
"Taking the text (not necessarily merely the mean Writ-ten of particular forms, but
of course including other texts which provide necessary contexts such as the
historical and the economic etc., the fact that texts necessarily consist of the
combination and reintegration of reiterated fragments) is frequently the way
analysis must start, if only because there is nothing else." [ Costas Douzinas & Ronnie
Warrington, Justice Miscarried: Ethics, Aesthetics and the Law, New York: Harvester
Wheatsheaf, 1994, 243-244.]
Shari'a
"To Muslims, Shari'a is the "whole Duty of mankind", moral and pastoral theology
and ethics, high spiritual aspiration, and detailed ritualistic and formal observance;
it encompasses all aspects of public and private law, hygiene, and even courtesy
and good manners." [ Abdullahi Ahmed An-Na'im, Towards an Islamic Reformation, Cairo:
The American University in Cairo Press, 1992, 11.]

"[t]he Arabs were and are bound by traditions and precedent. Whatever was
customary was right and proper; whatever the forefathers had done deserved to be
imitated. This was the golden rule for Arabs whose existence on a narrow margin in
an unpropitious environment did not leave much room for experiments and
innovations which might upset the precarious balance of their lives." [ Joseph
Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
"Worship and ritual, and other purely religious duties, as well as constitutional,
administrative and international law have been omitted, the first because they
developed under different conditions and in close connection with dogma, the
second on account of its essentially theoretical and fictitious character and the
intimate connection of the relevant institutions with the history of the Islamic states
rather than with the history of Islamic law." [Joseph Schacht, Introduction to Islamic Law,

methdology.
Legal Orientalism
"the Native Courts already administer a European system of law. If their personnel
can be so improved as to justify the assertion, that not merely the law they
administer, but the spirit by which they are animated, is up to the standard of
European ideas of justice." [ Milner, (1892) 350.]
population.
"If an Egyptian government can provide regular and peaceable administration for
Egypt, so much the better; but, if not, it as certain as anything can be that some
Power or group of Powers will be obliged to intervene to restore order. Bulgaria or
Greece may be allowed a revolution or so without interference, but not Egypt." [ Sir
William Hayter, Recent Constitutional Developments in Egypt, Cambridge: Cambridge

modern.
Modernism
"It was on these Western traditions of individualism, humanism, and rationalism and
on legal principles protecting individual rights that twentieth-century international
law of human rights ultimately rested." [ Mayer (1991) 44]
Like most other writers in the areas of international law and constitutional
law, the break point is the European Enlightenment. This has been the basis
for the development of modern European law. Mayer, takes to task many of
the Middle Eastern regimes for not being based on democracy and pluralism.
Her entire standpoint is 'western superiority'. The assumption that European
law is a fully developed system is rather difficult to accept within the
European world let alone the ex-colonial territories. This perception of the
superiority of European law, as we have seen, is a common theme of
administrators and scholars. In the nineteenth and early twentieth centuries
the project was Europeanization. In the last decade of the twentieth century
it is the promotion of human rights, democracy and pluralism. Defects within
Islamic culture must be made good. My difficulty with this project is the
character of the European experience. How precisely can Europeans claim
this superiority, particularly in the fields of human rights, democracy and
pluralism, when our entire societies have been founded on the systematic
denial of these benefits to the population of the colonized world until well
into the second half of this century?
The European systems of law have been used to imprison many who fought
for these principles in the colonial world. The European age of the
Enlightenment produced the American constitution that permitted slavery,
and confined the vote to white male property-holders of the Christian
religion. The western Human Rights movement even today is largely a male
rights movement. European societies ( and here I include the United States)
moved extremely slowly to extend the formal vote to women. Indeed
France, the home of the Enlightenment, did not grant women the right to
vote until after the Second World War.
In the West, the principles of democracy and pluralism appear to be a
twentieth century phenomena. They were not the obvious 'civilised' systems
of government for George Washington or William Gladstone. Indeed Europe
for much of the twentieth century has been characterised by regimes which
stood opposed to any conception of human rights, democracy or pluralism;
German Nazism, Russian Stalinism, Iberian Fascism, and variants of these
systems in Greece and Rumania are very much part of the European
tradition. It is very significant that in the debate over the legitimacy of law
under Nazi Germany, German law has found many a vigorous defender. One
cannot but think this is the result of Germany being a European state and
that the holocaust notwithstanding, it is its Europeaness that is important.
Islamic law is oriental, and its orientalism is held against it.
The legal history of Egypt since the accession to the throne of Muhammad Ali
in 1807 has been a struggle for and against the reception of European law.
In part, this process was motivated by reformist and modernizing trends led
by the Ottoman Porte, but its main imperative came from the commercial
pressures of the growing European and American presence in the country.
By the 1870's there were nearly eighty thousand foreigners living in Egypt,
with about 60% of these living in the city of Alexandria. These 'colonies'
were led by merchants who insisted on their right to resolve legal conflicts
according their own legal system as applied by the consular courts under the
capitulations. In the 1850's, Nubar Pasha proposed to change this situation
so that the commercial interest would be brought within an Egyptian
framework. The result of his work was the creation of Mixed Tribunals, which
used French law and had a mixture of European and Egyptian judges. De
Leon who was the American Consul at the time of the proposal considered
the idea absurd. In 1856 in a cable to Washington he reported:
"Imagine a tribunal composed of several Moslems, two Christian Armenians, two

Latin and two Greek Christians (every native Christian sect here bitterly hating each
other) and add two Jewish Rabbis, and you would have the most striking illustration
of the 'happy family' in the museums composed of the most uncongenial animals to
be found." [ De Leon (1877) 302-3]
Having dismissed the proposal, he then explains that "I will never surrender
those rights nor resign to irresponsible hands my high prerogative." [ De Leon
(1877) 303] This reveals both the cultural and commercial values of the
colonies. However, in the end, Nubar Pasha had his way and the Mixed
Tribunals were established. [ The classic work on this subject is Jasper Yeats Brinton,
The Mixed Courts of Egypt, New Haven: Yale University Press, 1968. A good survey of the
work of these courts is contained in a more recent work, Mark Hoyle, Mixed Courts of Egypt,
London: Graham & Trotman, 1991.] Fourteen foreign powers (including the USA)
participated in the system. While undoubtedly the reception of French
commercial law reflected a gain for European legal ideas, nevertheless, an
astute Egyptian leadership had manoeuvred, in De Leon's words "to keep
control in Egyptian hands." The attitude to Islamic law by the colonies was
simply that so long as it did not interfere with trade it could be tolerated. De
Leon notes that the majority of the population, 'the natives,' "are still
subject to the old Egyptian judges and the old system which has the Koran
as its basis." [ De Leon (1877), 312.]
Writing twenty years later, Milner refers to the "Old Koranic system, worked
by the mehkemehs or courts of the Religious law, which are now mainly
confined to dealing with the personal status of Mohammedans." [ Milner
(1892), 324.] He is not impressed with this system, but comments, "The
Religious Courts, full of abuses through they be, are yet hallowed ground
upon which it has been thought unwise to suffer the foot of the Christian
foreigner to intrude". [ Milner (1892), 325.]
These views are highly significant as they reveal the actual narrowing of the
scope of Islamic Law within Egypt. In a sense Schacht's limitations of the
scope of Islamic law reflect the realities of the colonial experience. Milner
expresses this when he writes,
"Mehkemehs, or native Religious Courts. whose authority is now almost confined to

the registration of land, and to matters affecting the personal status of
Mohammedans, questions of marriage and inheritance being the most important."
[ Milner (1892), 351.]
The colonial administration having removed the Egyptian state from its
ability to decide its constitutional destiny, having been shorn of its own
independent foreign policy and further ensuring that European law regulate
all important commercial transactions, leaves 'native Religious' or Islamic
Law with the rest. Necessarily the residual Islamic system is presented as
defective.
Without supporting evidence, Milner informs his readers that these courts
are "bywords for corruption" and proposes that the qadis [qadi (singular) means
judge.] should be better paid and that they should "possess some knowledge
of the general principles of law." The reader is to presume that 'general
principles of law' means European law; it is so obvious to Milner that this
content does not need to be stated.
Lane, in a much earlier account of these courts, does not dwell on their
corruption, as much as the harsh punishments that they impose. In one of
these he reports how a woman found guilty of apostasy is strangled to death
and then thrown into the Nile. [ Lane (1895), 113.] He explains that in an
earlier case this result was prevented by the intervention of the Europeans.
Thus the representations of the activities of these courts are either of the
corrupt or of the uncivilised. The implication is that similar practices do not
take place within European systems of law and that European intervention
assures the protection of humanitarian principles.
Lane's work is riveting as he observes Egypt through attempting to 'pass' as
an Egyptian. He dresses as an Egyptian and lives in a typical area. He
observes law along with other cultural forms, including superstitions, music,
dancing, and games. His comments on law are thus combined with his
collection of costumes and his famous engravings. This situating of law
within the cultural sphere indicates the intensity of the contest between
Europe and the Orient. As legal culture becomes an object of colonization,
Islamic law has to be conquered. The inevitability of European victory impels
Lane and others to record Islamic legal culture so that it can be placed
alongside, the "serpent-charmers, and performers of legerdemain tricks,"
[ Lane (1895), ch. 20.] so that future generations will be able to visit it in a
museum. In the meantime, the colonial administrators had to tackle the
sensitive task of the conquest itself, which like the conquest of territory
involved a series of manoeuvres.
The influence of European powers during the nineteenth century reshaped
the scope of Islamic law by both narrowing its jurisdiction and through a
process of modernizing the legal system and introducing European law. [ The
history of this process is dealt with in a comprehensive manner in Elie Kedourie, Politics in
the Middle East, Oxford: Oxford University Press, 1992.] In 1923, for example, Egypt
adopted a constitution based on that of Belgium. In 1906 Iran had done
exactly the same. Even within the Islamic world, by the time Kemal Attaturk
came to power, the West had won the legal argument, Islamic law was
backward and European law modern. The establishment of a secular republic
in Turkey, and with it the abolition of the Caliphate, was a logical result of
the pressure of the West on Islamic culture.
The pressures for modernization according to the European model is a theme
of the period up until the 1952 Nasserite revolution. It is explored for
example by Naguib Mahfouz in the Cairo Trilogy, when in the second volume
[ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992.] picnic food is turned
into a metaphor for the choices before Egyptian society. At a picnic at the
Pyramids, Kamal is offered by his sophisticated friends Husayn and Aida,
ham sandwiches and beer. Kamal refuses to drink the beer or eat the ham,
and is reproached by Aida for being a 'hanbali fundamentalist'. He continues
with his refusal and keeps to his own diet. Husayn and Aida have a French
background and symbolise the effect of the European penetration of
Egyptian society. Kamal is more traditionalist and is shocked, but fascinated
by the brother and sister - indeed he is in love with the sister. Kamal is
curious that Aida and Husayn can offer the forbidden food given that their
family keeps the outward appearances of Ramadan. Husayn replies,
"Isn't it strange that we know so little of our religion? What Papa and Mama know
about it is hardly worth mentioning. Our nurse was Greek. Aida knows more about
Christianity and its rituals than she does about Islam. Compared to you we can be
considered pagans." [ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992 Vol. II
at 193.]
This represents the dilemma for Egypt. It is not just the state which
becomes influenced by European ways, but parts of society too. As a scene it
also demonstrates the divisions that have resulted within Egyptian society.
The 1952 revolution actually confirms this process of Europeanization,
through the adaptation of Egypt to European socialism. The colonial powers
of Britain and France are merely replaced by the USSR and Yugoslavia.
Islamist Reactions

theory.
Law and Orientalism
law emerge.
exotic.
movements.
"The Orient is an integral part of the European material civilization and culture.
Orientalism expresses and represents that part culturally and even ideologically as
a mode of discourse with supporting institutions, vocabulary, scholarship, imagery,
doctrines even colonial bureaucracies and colonial styles." [Edward Said, Orientalism,
2.]

"Foucault had a lot to say about power, but he was curiously circumspect about the
ways in which it operated in the arenas of race and colonialism. His virtual silence
on these issues is striking. In fact Foucault's work appears to be so scrupulously
Eurocentric that you begin to wonder whether there isn't a deliberate strategy
involved." [ Robert J. C. Young, 'Foucault on Race and Colonialism,' New Formations, No. 25
(1995), 57 - 65, at 57.]
"Taking the text (not necessarily merely the mean Writ-ten of particular forms, but
of course including other texts which provide necessary contexts such as the
historical and the economic etc., the fact that texts necessarily consist of the
combination and reintegration of reiterated fragments) is frequently the way
analysis must start, if only because there is nothing else." [ Costas Douzinas & Ronnie
Warrington, Justice Miscarried: Ethics, Aesthetics and the Law, New York: Harvester
Wheatsheaf, 1994, 243-244.]
Shari'a
"To Muslims, Shari'a is the "whole Duty of mankind", moral and pastoral theology
and ethics, high spiritual aspiration, and detailed ritualistic and formal observance;
it encompasses all aspects of public and private law, hygiene, and even courtesy
and good manners." [ Abdullahi Ahmed An-Na'im, Towards an Islamic Reformation, Cairo:
The American University in Cairo Press, 1992, 11.]

"[t]he Arabs were and are bound by traditions and precedent. Whatever was
customary was right and proper; whatever the forefathers had done deserved to be
imitated. This was the golden rule for Arabs whose existence on a narrow margin in
an unpropitious environment did not leave much room for experiments and
innovations which might upset the precarious balance of their lives." [ Joseph
Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
"Worship and ritual, and other purely religious duties, as well as constitutional,
administrative and international law have been omitted, the first because they
developed under different conditions and in close connection with dogma, the
second on account of its essentially theoretical and fictitious character and the
intimate connection of the relevant institutions with the history of the Islamic states
rather than with the history of Islamic law." [Joseph Schacht, Introduction to Islamic Law,

methdology.
Legal Orientalism
"the Native Courts already administer a European system of law. If their personnel
can be so improved as to justify the assertion, that not merely the law they
administer, but the spirit by which they are animated, is up to the standard of
European ideas of justice." [ Milner, (1892) 350.]
population.
"If an Egyptian government can provide regular and peaceable administration for
Egypt, so much the better; but, if not, it as certain as anything can be that some
Power or group of Powers will be obliged to intervene to restore order. Bulgaria or
Greece may be allowed a revolution or so without interference, but not Egypt." [ Sir
William Hayter, Recent Constitutional Developments in Egypt, Cambridge: Cambridge

modern.
Modernism
"It was on these Western traditions of individualism, humanism, and rationalism and
on legal principles protecting individual rights that twentieth-century international
law of human rights ultimately rested." [ Mayer (1991) 44]
Like most other writers in the areas of international law and constitutional
law, the break point is the European Enlightenment. This has been the basis
for the development of modern European law. Mayer, takes to task many of
the Middle Eastern regimes for not being based on democracy and pluralism.
Her entire standpoint is 'western superiority'. The assumption that European
law is a fully developed system is rather difficult to accept within the
European world let alone the ex-colonial territories. This perception of the
superiority of European law, as we have seen, is a common theme of
administrators and scholars. In the nineteenth and early twentieth centuries
the project was Europeanization. In the last decade of the twentieth century
it is the promotion of human rights, democracy and pluralism. Defects within
Islamic culture must be made good. My difficulty with this project is the
character of the European experience. How precisely can Europeans claim
this superiority, particularly in the fields of human rights, democracy and
pluralism, when our entire societies have been founded on the systematic
denial of these benefits to the population of the colonized world until well
into the second half of this century?
The European systems of law have been used to imprison many who fought
for these principles in the colonial world. The European age of the
Enlightenment produced the American constitution that permitted slavery,
and confined the vote to white male property-holders of the Christian
religion. The western Human Rights movement even today is largely a male
rights movement. European societies ( and here I include the United States)
moved extremely slowly to extend the formal vote to women. Indeed
France, the home of the Enlightenment, did not grant women the right to
vote until after the Second World War.
In the West, the principles of democracy and pluralism appear to be a
twentieth century phenomena. They were not the obvious 'civilised' systems
of government for George Washington or William Gladstone. Indeed Europe
for much of the twentieth century has been characterised by regimes which
stood opposed to any conception of human rights, democracy or pluralism;
German Nazism, Russian Stalinism, Iberian Fascism, and variants of these
systems in Greece and Rumania are very much part of the European
tradition. It is very significant that in the debate over the legitimacy of law
under Nazi Germany, German law has found many a vigorous defender. One
cannot but think this is the result of Germany being a European state and
that the holocaust notwithstanding, it is its Europeaness that is important.
Islamic law is oriental, and its orientalism is held against it.
The legal history of Egypt since the accession to the throne of Muhammad Ali
in 1807 has been a struggle for and against the reception of European law.
In part, this process was motivated by reformist and modernizing trends led
by the Ottoman Porte, but its main imperative came from the commercial
pressures of the growing European and American presence in the country.
By the 1870's there were nearly eighty thousand foreigners living in Egypt,
with about 60% of these living in the city of Alexandria. These 'colonies'
were led by merchants who insisted on their right to resolve legal conflicts
according their own legal system as applied by the consular courts under the
capitulations. In the 1850's, Nubar Pasha proposed to change this situation
so that the commercial interest would be brought within an Egyptian
framework. The result of his work was the creation of Mixed Tribunals, which
used French law and had a mixture of European and Egyptian judges. De
Leon who was the American Consul at the time of the proposal considered
the idea absurd. In 1856 in a cable to Washington he reported:
"Imagine a tribunal composed of several Moslems, two Christian Armenians, two

Latin and two Greek Christians (every native Christian sect here bitterly hating each
other) and add two Jewish Rabbis, and you would have the most striking illustration
of the 'happy family' in the museums composed of the most uncongenial animals to
be found." [ De Leon (1877) 302-3]
Having dismissed the proposal, he then explains that "I will never surrender
those rights nor resign to irresponsible hands my high prerogative." [ De Leon
(1877) 303] This reveals both the cultural and commercial values of the
colonies. However, in the end, Nubar Pasha had his way and the Mixed
Tribunals were established. [ The classic work on this subject is Jasper Yeats Brinton,
The Mixed Courts of Egypt, New Haven: Yale University Press, 1968. A good survey of the
work of these courts is contained in a more recent work, Mark Hoyle, Mixed Courts of Egypt,
London: Graham & Trotman, 1991.] Fourteen foreign powers (including the USA)
participated in the system. While undoubtedly the reception of French
commercial law reflected a gain for European legal ideas, nevertheless, an
astute Egyptian leadership had manoeuvred, in De Leon's words "to keep
control in Egyptian hands." The attitude to Islamic law by the colonies was
simply that so long as it did not interfere with trade it could be tolerated. De
Leon notes that the majority of the population, 'the natives,' "are still
subject to the old Egyptian judges and the old system which has the Koran
as its basis." [ De Leon (1877), 312.]
Writing twenty years later, Milner refers to the "Old Koranic system, worked
by the mehkemehs or courts of the Religious law, which are now mainly
confined to dealing with the personal status of Mohammedans." [ Milner
(1892), 324.] He is not impressed with this system, but comments, "The
Religious Courts, full of abuses through they be, are yet hallowed ground
upon which it has been thought unwise to suffer the foot of the Christian
foreigner to intrude". [ Milner (1892), 325.]
These views are highly significant as they reveal the actual narrowing of the
scope of Islamic Law within Egypt. In a sense Schacht's limitations of the
scope of Islamic law reflect the realities of the colonial experience. Milner
expresses this when he writes,
"Mehkemehs, or native Religious Courts. whose authority is now almost confined to

the registration of land, and to matters affecting the personal status of
Mohammedans, questions of marriage and inheritance being the most important."
[ Milner (1892), 351.]
The colonial administration having removed the Egyptian state from its
ability to decide its constitutional destiny, having been shorn of its own
independent foreign policy and further ensuring that European law regulate
all important commercial transactions, leaves 'native Religious' or Islamic
Law with the rest. Necessarily the residual Islamic system is presented as
defective.
Without supporting evidence, Milner informs his readers that these courts
are "bywords for corruption" and proposes that the qadis [qadi (singular) means
judge.] should be better paid and that they should "possess some knowledge
of the general principles of law." The reader is to presume that 'general
principles of law' means European law; it is so obvious to Milner that this
content does not need to be stated.
Lane, in a much earlier account of these courts, does not dwell on their
corruption, as much as the harsh punishments that they impose. In one of
these he reports how a woman found guilty of apostasy is strangled to death
and then thrown into the Nile. [ Lane (1895), 113.] He explains that in an
earlier case this result was prevented by the intervention of the Europeans.
Thus the representations of the activities of these courts are either of the
corrupt or of the uncivilised. The implication is that similar practices do not
take place within European systems of law and that European intervention
assures the protection of humanitarian principles.
Lane's work is riveting as he observes Egypt through attempting to 'pass' as
an Egyptian. He dresses as an Egyptian and lives in a typical area. He
observes law along with other cultural forms, including superstitions, music,
dancing, and games. His comments on law are thus combined with his
collection of costumes and his famous engravings. This situating of law
within the cultural sphere indicates the intensity of the contest between
Europe and the Orient. As legal culture becomes an object of colonization,
Islamic law has to be conquered. The inevitability of European victory impels
Lane and others to record Islamic legal culture so that it can be placed
alongside, the "serpent-charmers, and performers of legerdemain tricks,"
[ Lane (1895), ch. 20.] so that future generations will be able to visit it in a
museum. In the meantime, the colonial administrators had to tackle the
sensitive task of the conquest itself, which like the conquest of territory
involved a series of manoeuvres.
The influence of European powers during the nineteenth century reshaped
the scope of Islamic law by both narrowing its jurisdiction and through a
process of modernizing the legal system and introducing European law. [ The
history of this process is dealt with in a comprehensive manner in Elie Kedourie, Politics in
the Middle East, Oxford: Oxford University Press, 1992.] In 1923, for example, Egypt
adopted a constitution based on that of Belgium. In 1906 Iran had done
exactly the same. Even within the Islamic world, by the time Kemal Attaturk
came to power, the West had won the legal argument, Islamic law was
backward and European law modern. The establishment of a secular republic
in Turkey, and with it the abolition of the Caliphate, was a logical result of
the pressure of the West on Islamic culture.
The pressures for modernization according to the European model is a theme
of the period up until the 1952 Nasserite revolution. It is explored for
example by Naguib Mahfouz in the Cairo Trilogy, when in the second volume
[ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992.] picnic food is turned
into a metaphor for the choices before Egyptian society. At a picnic at the
Pyramids, Kamal is offered by his sophisticated friends Husayn and Aida,
ham sandwiches and beer. Kamal refuses to drink the beer or eat the ham,
and is reproached by Aida for being a 'hanbali fundamentalist'. He continues
with his refusal and keeps to his own diet. Husayn and Aida have a French
background and symbolise the effect of the European penetration of
Egyptian society. Kamal is more traditionalist and is shocked, but fascinated
by the brother and sister - indeed he is in love with the sister. Kamal is
curious that Aida and Husayn can offer the forbidden food given that their
family keeps the outward appearances of Ramadan. Husayn replies,
"Isn't it strange that we know so little of our religion? What Papa and Mama know
about it is hardly worth mentioning. Our nurse was Greek. Aida knows more about
Christianity and its rituals than she does about Islam. Compared to you we can be
considered pagans." [ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992 Vol. II
at 193.]
This represents the dilemma for Egypt. It is not just the state which
becomes influenced by European ways, but parts of society too. As a scene it
also demonstrates the divisions that have resulted within Egyptian society.
The 1952 revolution actually confirms this process of Europeanization,
through the adaptation of Egypt to European socialism. The colonial powers
of Britain and France are merely replaced by the USSR and Yugoslavia.
Islamist Reactions
It is in this context that the Islamist reaction must be seen. A critical
consequence of the Anglo-American construction of Islamic law is the
destruction of the legitimacy of Islamic power within Islamic society and
within the wider world. Confined to personal status, for those who want it,
Islamic law can be tolerated. In resolving the big issues of the exercise of
power, both in the fields of politics and economics, Islamic principles are
replaced with European ones. As a consequence the campaigns by Islamists
for the implementation of shari'a appear radical as the aim is the creation of
a new basis of power.
This paper is not arguing that Islamic law should be considered as the model
for law, nor that the Islamist version is benign. I am advancing the case for
an engagement between Western and Islamic law which means the West
transcending its superior vantage point. This is, in my view, not merely
culturally and theoretically desirable, but is also a prerequisite for the
creation of stable relationships between the West and the Islamic world.
Nothing more destabilizes this relationship than continued attempts to de-
legitimize these societies, particularly at a time when they face the threats
from the Islamists.
The Islamists base themselves on their analysis that views the regimes as
corrupt and that in theological terms they constitute a state of jahiliyyah,
literally reactionary corrupt regimes which resemble the authorities in pre-
Islamic times. For the Islamist activist, however, modern jahiliyyah is
considerably more serious as it necessarily includes the rejection of the
message of Islam.
This is the mirror image of the exponents of the completeness of European
law. Islamist movements in Egypt can be divided into two broad types. The
first is the reformists, in particular the Muslim Brotherhood, technically
illegal but maintaining public offices, making statements and politically
active through its alliance with other legal political parties, most recently
with the Socialist Labour Party, [the Shukri faction]. The Muslim Brotherhood
and its supporters seek to persuade the Egyptian government to introduce
shari'a. The second type consistst of the 'revolutionary' groups who think
that reformist attempts are doomed and direct violent action is required.
This group goes under the name of al-Gama'at al-Islamiya (the Islamic
groups or movements). There are in fact many different groups under this
banner. In addition to the gama'a there is also al-Jihad, a smaller group
which gained notoriety through the assassination of Anwar Sadat. At the
time this group was associated with Sheikh Omar Abd al-Rahman. [ He was
implicated in the World Trade Centre, New York City bombing, February 1993, and was
convicted of offences relating to this incident in January 1996.] In the mid-1980's,
however he became the main spiritual influence on the gama'a. There are
many factions, however, and under the pressure of police and security
action, they necessarily change their structures and names. For example, in
1993 there was some speculation that a movement, previously thought to
have been crushed by the security forces, al-takfir wal-hijrah [ This name
literally translates as migration from society. The members of this very purist group are
encouraged to insulate themselves from the corrupting influence of society. For speculation
on its re-emergence, see Al-Ahram Weekly, Cairo, No. 124 (July 8 - 14 1993).] had been
resuscitated and may have been the organiser of a spate of attacks on
civilian targets. Beyond these radical Islamic groups are student
organisations and unofficial Mosques, which provide the recruiting ground for
the al-Gama'at al-Islamiya. [ For an informed discussion on the current strategy of
these groups see Nabil Abdel-Fattah, Al-Ahram Weekly, Cairo, No. 123 (June 30 - July 7
1993) and No. 124 (July 8 - 14 1993).]
The division between the revolutionary and reformist groupings revolves
around the extent to which the characterisation of society as Jahiliyyah is
applied. Sayyid Qutb, a key figure in modern Islamist history claimed that:
"The world is living today in Jahiliyyah. In every order than the Islamic order people
worship one another. It is within the Muslim scheme alone that all people will be
liberated from worshipping one another by worshipping God alone , to be inspired
by Him and to obey Him alone." [ Barry Rubin, Islamic Fundamentalism in Egyptian
Politics, London: MacMillan, 1990, 50.]
However the central question for the Islamists is the extent of the jahiliyyah.
Does this characterization merely cover the regime? Does it include the
bureaucracy and military? Does it include the clerical leadership? Or does it
extend to society as a whole? [ For an exploration of these issues from an Islamist
viewpoint, see Sayyid Qutb, Milestones, Delhi: Markazi Maktaba Islami, 1991. Qutb's
positions have now been revised by the Muslim Brotherhood itself, but have common
currency among the more revolutionary groups.] The answers to these questionswill
define the relationship of groups to the reformist/revolutionary divide. If the
entire society and not just the government has gone over to a state of
ignorance, then this can be the basis for attacks on civilians, for they are
part of the problem, they have become apostates. Thus the most
revolutionary of these groups form strong internal structures, not just for
military but also ideological reasons. They need to ensure that they remain
free from the infection of society in order to develop the basis for an Islamic
renewal. For the reformist Muslim Brotherhood this analysis is far too
extreme and if true would constitute a major set back for Islam, as believers
would have been reduced from nearly a quarter of the world's population to
handful of the faithful. For them, the problem is the government. The
political tactic of the Muslim Brotherhood has been to campaign for the
implementation of Islamic Law by Parliament. A major success for this
strategy was scored by the Islamist reformists in 1978 when the Egyptian
Parliament voted to establish a committee to review the existing law to
ensure that it was in conformity with shari'a. Perhaps less pleasing to them
was the conclusion the committee reached in 1982 that most laws were
already in conformity with shari'a. Nevertheless this process of attempting to
influence the state from within is summed up by Muhammad Ahmad Abu al-
Nasr outlining the reformist strategy, "All we ask is that the authorities
declare that they agree to implement the Islamic shari'ah. The actual
implementation could begin gradually and quietly." [Rubin (1990) 34.]
In elections during the 1980's the Muslim Brotherhood made electoral
Alliances with legal parties. In 1984, its alliance with the secularist Wad won
15% of the vote and in 1987 its alignment with the Liberals and Socialist
Labour party gained 17%. [ The latest Parliamentary elections in 1995 were conducted
in such circumstances that any attempt to use the results to evaluate the level of support
for the Islamist forces would be superfluous.] Beyond these statistics the real
change brought about by the Muslim Brotherhood has been to transform the
atmosphere in Egypt where virtually all political currents emphasis their
Islamic credentials. The newspaper, Al-Majallah commented on this in the
early 1980's:
"Perhaps the greatest manifestation of victory for the Muslim Brotherhood is that all
parties without exception, have placed at the top of their platforms the application
of Islamic Law, whereas they all previously considered this demand to be
'reactionary', regressive and a mixing of religion with politics and politics with
religion." [Rubin (1990) at 31 (October 14 1981).]
Since the death of Nasser, the Egyptian government has been through a
major re-orientation. Under Sadat it moved away from the USSR and
towards an accommodation with the United States. After the Camp David
Accords Egypt became the largest recipient of aid from the United States
after Israel. (Total aid to Egypt now makes it top of the world's league table
of aid recipients.) To carry through this strategic reorientation the Egyptian
government had to defeat the forces of the political left, who were opposed
both to the foreign policy and its domestic economic consequences. During
the 1970's Sadat made alliances with the Islamists, principally the Muslim
Brotherhood, to defeat the left (including the Nasserites). This process
brought the Islamist current to the centre of the political stage and placed
them in a position to make demands on the government. Since the 1970's,
under both Sadat and Mubarak, the products of these demands have
become clear. Indeed, the 1971 Constitution states that "the principles of
the Islamic Shari'ah are the principal source of legislation." The Islamist
objection to this formula is for the obvious reason that it leaves plenty of
scope for other sources of legislation.
However in many ways the Islamists have made themselves felt on daily life.
Mosques have become free to broadcast prayers and sermons to the local
population. Religious broadcasting now accounts for some 20% of all
television output. Al-Azhar has become more influential in the politics of the
country and its censorship policy is now a bone of contention with the
government's own board of censors. President Mubarak regards Islam as so
important that he makes of point of giving a major speech on the Night of
Power (the most sacred night during Ramadan). His 1993 speech was a
trenchant defence of Islam as interpreted by the government and an attack
on the 'militants' of the al-Gama'at al-islamyia for the perversions of 'true
Islam'. Within the government the Ministry of Waqfs (Religious Endowments)
has become extremely influential. Large sums of money have gone into the
building of new mosques and the government has attempted to take control
of as many independent mosques as possible so as to reduce the influence
of the Islamists. There is a paradox however in an essentially secular
government attempting to outdo the Islamists in its adherence to Islam.
In the field of law, the reaction to the orientalist school has been led not only
by the Islamists of the Muslim Brotherhood or the gama'a, but also by
mainstream and establishment figures. Schacht's view of the limits of
Islamic Law meets a response from Dr al-Tayyib al-Najjar, a former
President of Al-Azhar University:
"It is a mistake to think that the provisions of Islamic Law cover merely the required
modes of worship, that is prayer, alms giving, fasting and pilgrimage, or the
prescribed legal punishments for certain crimes such as adultery, theft,
drunkenness, libel, and highway robbery. The provisions of Islamic Law are not
restricted to these matters. They cover all transactions that are required in life and
necessary for people's happiness, security and stability. They also deal with
people's personal, social and political affairs." [Rubin (1990) at 82 (Al-Ahram, July 5
1985).]
The issue arises therefore as to the exact scope of Islamic law in the modern
world which will regulate the personal, social and political affairs in the whole
society. The effect of colonial intervention and the Western influence within
the Islamic world has created a breach in the historical development of
Islamic Law, particularly in the public law field. It is this breach that the
Islamists attempt to fill, by claiming to return to the fundamental principles
of the Qur'an and the sunna. Whether their interpretations of the sources of
Islamic law are correct or not, the search for them should be seen as a
reaction to the impact of Western power and the systematic de-
legitimization of Islamic law and values. For Omar 'Abd al-Rahman, "there
are two parties; the party of God and the party of devil." He makes very
clear what the values of the party of God might be when he explains:
It is in this context that the Islamist reaction must be seen. A critical
consequence of the Anglo-American construction of Islamic law is the
destruction of the legitimacy of Islamic power within Islamic society and
within the wider world. Confined to personal status, for those who want it,
Islamic law can be tolerated. In resolving the big issues of the exercise of
power, both in the fields of politics and economics, Islamic principles are
replaced with European ones. As a consequence the campaigns by Islamists
for the implementation of shari'a appear radical as the aim is the creation of
a new basis of power.
This paper is not arguing that Islamic law should be considered as the model
for law, nor that the Islamist version is benign. I am advancing the case for
an engagement between Western and Islamic law which means the West
transcending its superior vantage point. This is, in my view, not merely
culturally and theoretically desirable, but is also a prerequisite for the
creation of stable relationships between the West and the Islamic world.
Nothing more destabilizes this relationship than continued attempts to de-
legitimize these societies, particularly at a time when they face the threats
from the Islamists.
The Islamists base themselves on their analysis that views the regimes as
corrupt and that in theological terms they constitute a state of jahiliyyah,
literally reactionary corrupt regimes which resemble the authorities in pre-
Islamic times. For the Islamist activist, however, modern jahiliyyah is
considerably more serious as it necessarily includes the rejection of the
message of Islam.
This is the mirror image of the exponents of the completeness of European
law. Islamist movements in Egypt can be divided into two broad types. The
first is the reformists, in particular the Muslim Brotherhood, technically
illegal but maintaining public offices, making statements and politically
active through its alliance with other legal political parties, most recently
with the Socialist Labour Party, [the Shukri faction]. The Muslim Brotherhood
and its supporters seek to persuade the Egyptian government to introduce
shari'a. The second type consistst of the 'revolutionary' groups who think
that reformist attempts are doomed and direct violent action is required.
This group goes under the name of al-Gama'at al-Islamiya (the Islamic
groups or movements). There are in fact many different groups under this
banner. In addition to the gama'a there is also al-Jihad, a smaller group
which gained notoriety through the assassination of Anwar Sadat. At the
time this group was associated with Sheikh Omar Abd al-Rahman. [ He was
implicated in the World Trade Centre, New York City bombing, February 1993, and was
convicted of offences relating to this incident in January 1996.] In the mid-1980's,
however he became the main spiritual influence on the gama'a. There are
many factions, however, and under the pressure of police and security
action, they necessarily change their structures and names. For example, in
1993 there was some speculation that a movement, previously thought to
have been crushed by the security forces, al-takfir wal-hijrah [ This name
literally translates as migration from society. The members of this very purist group are
encouraged to insulate themselves from the corrupting influence of society. For speculation
on its re-emergence, see Al-Ahram Weekly, Cairo, No. 124 (July 8 - 14 1993).] had been
resuscitated and may have been the organiser of a spate of attacks on
civilian targets. Beyond these radical Islamic groups are student
organisations and unofficial Mosques, which provide the recruiting ground for
the al-Gama'at al-Islamiya. [ For an informed discussion on the current strategy of
these groups see Nabil Abdel-Fattah, Al-Ahram Weekly, Cairo, No. 123 (June 30 - July 7
1993) and No. 124 (July 8 - 14 1993).]
The division between the revolutionary and reformist groupings revolves
around the extent to which the characterisation of society as Jahiliyyah is
applied. Sayyid Qutb, a key figure in modern Islamist history claimed that:
"The world is living today in Jahiliyyah. In every order than the Islamic order people worship
one another. It is within the Muslim scheme alone that all people will be liberated from
worshipping one another by worshipping God alone , to be inspired by Him and to obey Him
alone." [ Barry Rubin, Islamic Fundamentalism in Egyptian Politics, London: MacMillan, 1990, 50.]
However the central question for the Islamists is the extent of the jahiliyyah.
Does this characterization merely cover the regime? Does it include the
bureaucracy and military? Does it include the clerical leadership? Or does it
extend to society as a whole? [ For an exploration of these issues from an Islamist
viewpoint, see Sayyid Qutb, Milestones, Delhi: Markazi Maktaba Islami, 1991. Qutb's
positions have now been revised by the Muslim Brotherhood itself, but have common
currency among the more revolutionary groups.] The answers to these questionswill
define the relationship of groups to the reformist/revolutionary divide. If the
entire society and not just the government has gone over to a state of
ignorance, then this can be the basis for attacks on civilians, for they are
part of the problem, they have become apostates. Thus the most
revolutionary of these groups form strong internal structures, not just for
military but also ideological reasons. They need to ensure that they remain
free from the infection of society in order to develop the basis for an Islamic
renewal. For the reformist Muslim Brotherhood this analysis is far too
extreme and if true would constitute a major set back for Islam, as believers
would have been reduced from nearly a quarter of the world's population to
handful of the faithful. For them, the problem is the government. The
political tactic of the Muslim Brotherhood has been to campaign for the
implementation of Islamic Law by Parliament. A major success for this
strategy was scored by the Islamist reformists in 1978 when the Egyptian
Parliament voted to establish a committee to review the existing law to
ensure that it was in conformity with shari'a. Perhaps less pleasing to them
was the conclusion the committee reached in 1982 that most laws were
already in conformity with shari'a. Nevertheless this process of attempting to
influence the state from within is summed up by Muhammad Ahmad Abu al-
Nasr outlining the reformist strategy, "All we ask is that the authorities
declare that they agree to implement the Islamic shari'ah. The actual
implementation could begin gradually and quietly." [Rubin (1990) 34.]
In elections during the 1980's the Muslim Brotherhood made electoral
Alliances with legal parties. In 1984, its alliance with the secularist Wad won
15% of the vote and in 1987 its alignment with the Liberals and Socialist
Labour party gained 17%. [ The latest Parliamentary elections in 1995 were conducted
in such circumstances that any attempt to use the results to evaluate the level of support
for the Islamist forces would be superfluous.] Beyond these statistics the real
change brought about by the Muslim Brotherhood has been to transform the
atmosphere in Egypt where virtually all political currents emphasis their
Islamic credentials. The newspaper, Al-Majallah commented on this in the
early 1980's:
"Perhaps the greatest manifestation of victory for the Muslim Brotherhood is that all parties
without exception, have placed at the top of their platforms the application of Islamic Law,
whereas they all previously considered this demand to be 'reactionary', regressive and a mixing
of religion with politics and politics with religion." [Rubin (1990) at 31 (October 14 1981).]
Since the death of Nasser, the Egyptian government has been through a
major re-orientation. Under Sadat it moved away from the USSR and
towards an accommodation with the United States. After the Camp David
Accords Egypt became the largest recipient of aid from the United States
after Israel. (Total aid to Egypt now makes it top of the world's league table
of aid recipients.) To carry through this strategic reorientation the Egyptian
government had to defeat the forces of the political left, who were opposed
both to the foreign policy and its domestic economic consequences. During
the 1970's Sadat made alliances with the Islamists, principally the Muslim
Brotherhood, to defeat the left (including the Nasserites). This process
brought the Islamist current to the centre of the political stage and placed
them in a position to make demands on the government. Since the 1970's,
under both Sadat and Mubarak, the products of these demands have
become clear. Indeed, the 1971 Constitution states that "the principles of
the Islamic Shari'ah are the principal source of legislation." The Islamist
objection to this formula is for the obvious reason that it leaves plenty of
scope for other sources of legislation.
However in many ways the Islamists have made themselves felt on daily life.
Mosques have become free to broadcast prayers and sermons to the local
population. Religious broadcasting now accounts for some 20% of all
television output. Al-Azhar has become more influential in the politics of the
country and its censorship policy is now a bone of contention with the
government's own board of censors. President Mubarak regards Islam as so
important that he makes of point of giving a major speech on the Night of
Power (the most sacred night during Ramadan). His 1993 speech was a
trenchant defence of Islam as interpreted by the government and an attack
on the 'militants' of the al-Gama'at al-islamyia for the perversions of 'true
Islam'. Within the government the Ministry of Waqfs (Religious Endowments)
has become extremely influential. Large sums of money have gone into the
building of new mosques and the government has attempted to take control
of as many independent mosques as possible so as to reduce the influence
of the Islamists. There is a paradox however in an essentially secular
government attempting to outdo the Islamists in its adherence to Islam.
In the field of law, the reaction to the orientalist school has been led not only
by the Islamists of the Muslim Brotherhood or the gama'a, but also by
mainstream and establishment figures. Schacht's view of the limits of
Islamic Law meets a response from Dr al-Tayyib al-Najjar, a former
President of Al-Azhar University:
"It is a mistake to think that the provisions of Islamic Law cover merely the required modes of
worship, that is prayer, alms giving, fasting and pilgrimage, or the prescribed legal punishments
for certain crimes such as adultery, theft, drunkenness, libel, and highway robbery. The
provisions of Islamic Law are not restricted to these matters. They cover all transactions that are
required in life and necessary for people's happiness, security and stability. They also deal with
people's personal, social and political affairs." [Rubin (1990) at 82 (Al-Ahram, July 5 1985).]
The issue arises therefore as to the exact scope of Islamic law in the modern
world which will regulate the personal, social and political affairs in the whole
society. The effect of colonial intervention and the Western influence within
the Islamic world has created a breach in the historical development of
Islamic Law, particularly in the public law field. It is this breach that the
Islamists attempt to fill, by claiming to return to the fundamental principles
of the Qur'an and the sunna. Whether their interpretations of the sources of
Islamic law are correct or not, the search for them should be seen as a
reaction to the impact of Western power and the systematic de-
legitimization of Islamic law and values. For Omar 'Abd al-Rahman, "there
are two parties; the party of God and the party of devil." He makes very
clear what the values of the party of God might be when he explains:
"We do not believe in democratic ideas, nor do we believe in natural Law or the ideas of the
French revolution. We do not believe in the principles of the Bolshevik revolution, nor the we
believe in materialist capitalism. But we do believe in the way of the followers of the prophetic
traditions. To us the Qur'an and the prophetic traditions are the authentic premise for our ideas
and our way of life and death. This confirms what was said by our Prophet Muhammad "Two
things I have bequeathed to you: The Qur'an and my traditions. If you adhere to them you will
not stray." [Rubin (1990) at 48.]
For al-Rahman the response to the European denial of legitimacy to Islam
and Islamic Law is to reverse the process by denying the legitimacy of
European political and legal values. The Islamists have more in common with
the approach of some of their Western detractors than they might think. This
absolutist position reminds me of a view from another perspective
altogether. Francis Fukuyama comments that "the historical process rests on
the twin pillars of rational desire and rational recognition, and that modern
liberal democracy is the political system that best satisfies the two." [ Francis
Fukuyama, The End of History and the Last Man, New York: The Free Press, 1992, 337.]
Fukuyama demands that history requires modern liberal democracy, al-
Rahman believes that it requires the Qur'an and the sunna. Both denounce
cultural relativism and both hold this concept to be a 'European invention'.
For Fukuyama the contest between Europe and Islam has been won
providing Western leaders have confidence in their system. In particular,
Fukuyama is critical of viewing liberal democracy as a concept that is bound
by European or Western culture. Islamists similarly see the only solution for
the future of humanity, as turn to Islam. BA New Encounter?
In early April 1993 Colonel Gaddafi of Libya announced that he was going to
implement with immediate effect certain aspects of shari'a, namely the
huddud punishments. His statements to the press emphasised the
importance of punishing theft, especially state theft, and also adultery.
Gaddafi has many times announced the imminent implementation of shari'a
during his years in power.
This announcement drew an interesting response from the Egyptian Islamic
writer Fhami Howeidi. He used the opportunity to attack both the West and
some Islamists, (for which Gaddafi is a useful foil), for a one-sided view of
Islamic law. He argues that Islamic law is about "mobilising all the potential
for good towards true progress and the betterment of life." He is particularly
scornful of the singling out of criminal punishments:
"as though God sent the Prophet Mohamed to convey to the people only a set of
legal codes with which to punish criminals and adulterers. Such restrictions to the
concept of Islamic Law only show the penal aspect of the system as the Islamic
message were primarily directed at criminals and degenerates.... This pitiful image
of Islam is an affront to Islam itself." [ Fahmi Howeidi, No To Islamic Law, Al-Ahram
Weekly, Cairo, No. 113 (April 22 - 28 1993).]
He continues,
"One cannot help but be dismayed when confronted by the persistence among
political leaders and proponents of Islamic Law in ignoring its comprehensiveness
and equity and in treating their societies as it were a collection of criminals who can
only to deterred by fear and threat of the whip or the sword." [ Fahmi Howeidi, No To
Islamic Law, Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).]
Howeidi's approach is by no means a tiny current amongst Islamists.

However, such positions are difficult to maintain in the context of the rise of
Islamist movements, which emphasise other aspects of the Islamic tradition.
Within a jurisprudential perspective we are confronted with the problem of
whether it is possible to reconcile sacred and secular legal discourses.
Sheikh Muhammad Ghozali, a popular religious broadcaster in Egypt recently
said in a court that, "A secularist represents a danger to society and the
nation that must be eliminated. It is the duty of the government to kill him".
[ Quoted by Yousef M Ibrahim, International Herald Tribune, London, August 19 1993.]
This comment came from the Sheikh during the trial of those accused with
the murder of the secularist writer Farag Fodah. Ghozali it should be
emphasised is not a member of the gama'a, or any of the other radical
Islamist groups. Like Sheikh Gad al Haq Gad al Haq, the current rector of Al-
Azhar, he believes that the separation of Islam from the state constitutes
apostasy. It would be a mistake, however, to think that these Islamists
speak only the language of the past. The current Islamist movement is very
much a product of its times, and this can be seen in the discussion of
women. For example Safnaz Kazem [Al-Ahram Weekly, Cairo, No 122 (June 24 - 30
1993).] talks about the veil as the dress of "liberation of women." Her
arguments against separate organizations for women are not only based on
an appeal to traditional Islamic principles about the indivisibility of humanity,
but are also an appeal to humanistic solidarity in the face of imperialism.
This anti-imperialist strain within Islamist ideology nearly dovetails with the
socialist rhetoric of the immediate post-colonial phase. However the central
issue of the relationship of Islam to the State undermines the experience of
this period which was portrayed as yet another step along the road to
modernization. For Islamic jurists, whether Islamist or not, this poses a
serious dilemma as to how to deal with the secular state structure (and
ideology) that was built during the post-colonial period.
Within Islamic jurisprudence there is a growing debate about these issues.
Abdullahi Ahmed An-Na'im's Towards an Islamic Reformation is a significant
contribution that concentrates on civil liberties, human rights and
international law. An-Na'im sets out to apply the jurisprudential methodology
of the Sudanese theologian Mahmoud Muhammad Taha. This rests upon an
analysis of the Qur'anic revelations and how contractions resolved in the first
two centuries of the Islamic era should be re-opened and resolved in a
different way today. Taha was executed by the Sudanese regime for
apostasy in putting forward such views. This fact confronts the non-Muslim
jurist with an obvious problem. How are we to choose between the view of
two positions both of which are presented as Islamic and yet one of which is
also regarded by some Muslim authorities as being apostasy? An Na'im's
work, however, suffers from its positivist methodology which has much in
common with Mayer. Its great merit is the presentation in English of an
Islamic juristic debate which itself offers an interesting encounter between
Islamic and Western law.
Scholars in the 1950's and 1960's thought of Islamic law as of historical
interest, yet the issues which its jurisprudence raise have re-emerged with
the enhanced power of Islamic political regimes and movements in the last
decade of the twentieth century. As it happens, Khadduri's schema of the
adaptation of Islamic law to the 'modern law of nations' has become less
tenable. In the fields of constitutional law and international human rights, it
is also no longer possible to rest the case for a basically Western and secular
system on the axiomatic positions, as Mayer does. A series of political and
theoretical factors nourished the growth of the idea, among millions of
people, that sacred law should be the basis of national and indeed global
order. This adds another dimension to the insecurities which have become
evident in the West with the modernist project. Within the Islamic world
struggling with various aspects of post-coloniality, this is a response both to
past colonial experiences and to the current 'new world order' framework.
Religion has returned to the agenda of national and international societies -
and their academies. Post-modernity, it seems, is a condition which requires
re-engagements with discourses which the modernists had consigned to
closure.
Edward Said warns us that "in our wish to make ourselves heard, we tend
very often to forget that the world is a crowded place". [ Said (1993) xxiii.] This
approach has been taken by some to argue that an appreciation of
orientalism requires making space for other voices, the excluded colonial
other. [See for example: Kevin Dwyer, Arab Voices - The Human Rights Debate in the
Middle East, London and New York: Routledge, 1991.] This however assumes that we
possess a discourse which can engage with the excluded. It underestimates
the extent to which Western culture is itself colonial. Dirks approaches this
issue with some deftness:
"If colonialism can be seen as culture formation, so also culture is a colonial
formation. But culture was not simply some mystifying means for colonial
conquest and rule, even as it could not be contained within colonised spaces.
Culture was imbricated both in the means and the ends of colonial conquest,
and culture was invented in relationship to a variety of internal colonialisms.
Colonial theatres extended beyond the shores of tropical rivers and colonised
spaces, emerging within both metropolitan contexts and the civil lines of
colonial societies." [ Nicholas B. Dirks, Introduction: Colonialism and Culture, in Dirks
(ed.), Colonialism and Culture, Ann Arbour: University of Michigan Press, 1992, 1- 25 at 3-
4.]
Thus the adding of apparently new voices will, in all probability, turn into
echoes. As Mitchell effectively argues, the Other becomes enframed within
the western discourses, much as physical artefacts of other cultures appear
in museums and exhibitions. [ See: Timothy Mitchell, Colonising Egypt, Cairo:
American University Press in Cairo, 1988.] Mayer implies, but does not argue, that
law is different, it is not part of culture but occupies a special place outside
of it. She sees law as possessing an exclusive register. This positivism does
violence to the concept of law. In scanning the issues of this paper it has
become evident that law is part of culture and as such it is contested. The
starting point for our enquiry into Islamic law is comprehending the
character of contemporary culture as rooted in colonialism. Orientalism has
constructed legal culture much in the manner that Dirks described. Reading
legal cultures thus becomes a series of acts of engagement with internal and
external colonialisms. In order to release Islamic law from the colonial
exhibition we are obliged to demolish the walls of legal orientalism.
Correspondence:
John Strawson,
School of Law,
University of East London,
Longbridge Rd,
Dagenham,
Essex RM8 2AS.
E-Mail: j.strawson@uel.ac.uk.
(c) John Strawson, 1996
Source: http://www.uel.ac.uk/faculties/socsci/law/jsrps.html oth approaches are
universalist.
Implementation of Islamic Law in Modern Times
by Sheikh Zaki Ahmed Yamani
[The following is the whole text of Sheikh Yamani's speech delivered at the
Islamic Information Service's Outreach Award ceremony, held on October 3rd,
1998 in Beverly Hills. Without any editing or changes. This was an extempore
speech,so please do not expect it to have an absolute grammatical coherence.
Thetopic of his speech was: "The Implementation of Sharia in Modern Times."
Tapes of his speech are also available from IIS. The number to call is 626-
791-9818.]
I am very grateful for this honor awarded to me and know there are so many
people who derserve this far better than myself. But, I am lucky person so
here I am.
I thank my brothers and sisters. The subject they want me to talk about is
"How to Apply Islamic Law". Of course, we all know that back home in all the
Islamic countries there is real desire and demand to apply the Islamic law. Of
course, most of the people asking for it they don't know what kind of Islamic
law they want. They just want Islamic Law. And there are those, of course,
the opponents of Islamic Law. They answer back: you want to cut hands,
lashes and capital punishment?
What is this old-fashioned system that you want to apply now?
Of course, Islamic law is not really lashes, cutting hands, and capital
punishment. It's a very beautiful system. I cannot tell you about it tonight. It
takes hours and hours at least.
Human rights in Islam is something so unique and so advanced that you don't
even compare it with the UN Charter of Human Rights about fifty years ago.
Because applied in the city of Madinah 1500 years ago. I had a chance to in
Geneva. There was a convention or a symposium about human rights in
Islam. I was one of those who participated. And people were amazed. If you
are liberal.If you back only to what's in the Quran and Sunnah and
applications in the 30 years after our Prophet passed away, then you know
what is real human right in Islam. You know what equality between men and
women. You know the state of non-Muslims in Muslim society. That is human
rights in Islam.
The first democratic system applied in the world was in the city of Madinah
centuries ago. Democracy is not on the paper, it's in real application. What is
called Shura means there is no one-man rule. It's the rule of the majority.
And that's another area of Islamic law.
Social justice in Islam: It's something unique and there is no other system
that attracts social justice as Islam. I give you a small little example: There
was a famous jurist from France who came to a law school in Egypt and
became the dean. It's Prof. Dukey. He studied the Islamic law there with the
community. While he was the dean and went back and he wrote a theory
"Social Justice". It's a copy of Al Madhab Al Maliki, a copy of the Maliki School
of Thought in the area of ownership and description of ownership in Islam.
And so on. It's a very famous theory for those who studied it and it's a
beautiful thing.
When Lenin found out he cannot apply Communism the way he wanted to and
he wanted to make changes he called on Prof. Dukey to talk to him about
what is called NEP, the New Economic Plan. For those who studied Soviet law
they will find that so many articles are taken on the basis of his theory that is
from the Maliki School of Thought in Islam. This does not mean we are
communist or socialist. No. It's a unique system. I don't have the time to sit
down and explain it to you. But this is Islam.
But back to how we apply Islamic Law in a modern society, a Muslim society? It's an
important issue because first we have to distinguish between Al-Sharia and Al-Fiqh al
Islami-Islamic Law and Islamic Jurisprudence. Al-Sharia or Islamic Law it's what written in
the Quran or in the Sunnah. This is obligatory, so to speak. The oher part, Al-Fiqh al Islami,
is a huge volume of legal opinion. That's something we study, we look at, but it's not
obligatory because within the same school of thought, the Madhab, we find sometimes on
the subject, five, six, ten different opinions. Which one not to apply and as you know we
have the four schools of thought and then we also have the Shia Athna-e-Asri, the Jafri. In
Saudi Arabia they apply Hanbli, In Iran they apply Jafri, in Yemen they apply a blend of
Zaidi and Shafa'i. And so on. That is not really the Islamic Law.
What we applied 10 centuries ago or 15 centuries ago it cannot be really applied today at a
time when camel was the only means of transportation.
And now with the internet, the jet with all these means of communication how can we apply
that with the banking systems, with the currencies, with the type of economy, how can we
apply the Islamic law at the time when barters and only use of silver at the currency. There
is the Islamic jurisprudence in Usul al-Fiqh. A rule everybody believes in it.
And it says "You cannot object or deny a change in the law because of the change in time."
That's one rule. Not only this. I give you one example: The great Imam Al-Shafai, the
founder of the Shafai School of Thought. He was in Baghdad and he studied the situation
there and founded his Madhab in Baghdad.
And then he went to Egypt. Thereafter, he changed a great deal of his opinions. And those
who studied Al-Madhab AL-Shafai will see that this is the Old Opinion and this the New
Opinion. The man is the same man.
The Quran is the same, the Sunnah is the same. What is the change? It's the change of
environment. It won't be the change of time because it was in the short period of time that
he changed his opinions. So, I wanted to tell you tonight in a nutshell that we have to look
at the Islamic Law seriously.
Of course, we study this beautiful work of the jurists. It is really something unique. I
remember when I was a student in Harvard there was an old man, very famous jurist in the
history of this country, called Rusco Pound. And he studied in the Sorbonne [this word was
not very clear in the speech] with the famous British scholar in Islamic Law, Ahmed
Ibrahim, he is very famous. And they were together as friends.
Ahmed Ibrahim also got one of his PhDs from the Sorbonne. And he knew so much about
the Islamic Law, about Islamic Jurisprudence. He knew there is an Arab in the Law School
and he called me and he said, "I want you to go to be=85well, there is in the Hanafi Al-
Mabsoot, see volume so and so, page so and so, translate that for me." So I go and I
translate it for him. And I come and he started asking me to do this every now and then.
Then one day, he looked at me and he said, "You Muslims don't deserve this law." I never
forget this. He was right. We don't deserve this law because we are not really abiding by
this law.
This beauty of this system is something forgotten. We have the tribal traditions prevailing
everywhere.
In Afghanistan, you have those Taliban. So ugly picture they paint for Islam. In my own
country, unfortunately, we are not following Islam as it should be.
Everywhere Islam is different. Islam is human rights, social justice, democracy. This comes
first. Then afterwards, you look at other things.
We have changed a great deal.
Let me come now to see what we do when it comes to the text provided in the Holy Quran
or authentic Sunnah. How we look at it? In a few studies of Islamic jurisprudence you find
there are two schools of thought. This is regardless of the Madahib. But there are two
approaches. One approach is to deal with text. Take it as it is, blindly. A good example of
this is Al-Madhab Al-Zahiri. We take the apparent meaning of the text. And to a great extent
Hanbli. Another school of thought is, take the objective of the rule, of the law of the text.
You go a little bit deeper, you dig inside and see what is the objective? Maqasid al-Sharia al
Isalmi. Of course, let me give you a little example, a historical one. After Ghazwat al
Khandaq, the famous war, when all the tribes guided by a Jewish tribe called Bani Khuraiza,
they came to Madinah to destroy the new state and this prophet. Of course, they failed. I
am sure most of you know the story.
And when the Prophet came back to Madinah, started going to Bani Khuraiza because he
had a treaty with them that they will never work against him and he will defend them. It's
very well-known. So he went, but before going he told the Muslims, "No one should pray al
Asr, the afternoon prayer, except in Bani Khuraiza. Of course other Muslims have to wash
and get ready and follow him. In the way, the time for that prayer was about to come to an
end. So they, some of them, said the Prophet told us not to pray except in Bani Khuraiza-
that is the text. The others said, no, what he wanted to say to us to hurry up and arrive in
Bani Khuraiza early. Some of them prayed, the others went to Bani Khuraiza and prayed al
Asr after the time allocated for that prayer.. And they came to the Prophet ad told him what
they did. The Prophet said , well, both of you are right. Of course, this shows, 1) that in
Islam you can differ in opinion,it's accepted, it's even encouraged. And as long as you base
your opinion on something , you are right. And other is to show different schools of
thought.
Now the Prophet left us. And after him there was a great jurist, a man of a very special
mind, Umar bin Khatab, the second Caliph. He was the founder of the second school of
thought, the Maqasid al Sharia. And he made a lot of changes in the rules even in the
Quran. I have counted thirteen different cases where Umar bin Khatab changed what is
supposed to be the law in the Quran and the Sunnah. It's not Umar to change. He did not
change. He applied Maqasid al Sharia al Islami, the objective of text in the Quran and
Sunnah.
One example. Since we don't have much time. If you read the Quran about the treasury,
about the Muslim treasury, one of them is Mualuf al Quluban. Who are these Mualuf al
Quluban? Chiefs of tribes, newly converted to Islam. And, of course, if you know the Arab
thinking of that time; if the chief of the tribe becomes Muslim the whole tribe becomes
Muslim. And the state of Madinah, the first Islamic state, was so weak that the Prophet and
God needed the help of those people. They had an annual share from the treasury to give it
to them to please their hearts. They were giving it during the life of the Prophet and during
the life of the first caliph, Abu Bakr. Then during the time of Umar already we conquered
Egypt, Persia, the northern party of Arabia, Syria, so on. The Islamic state became so big,
so huge, so strong. They came to Umar and said give us our allocation. Umar said, "no, I'm
not going to give you." They said, 'no you cannot. It's written in the Quran." Umar said,
"Islam is now strong." It means Umar looked at the objective of that text in the Quran. He
did not ignore the text; no, he applied the objective of the Quran. And Umar did so much in
that area.
So it is the objective that we have to look at.
So it is the objective that we have to look at.

One example, which is to some extent contemporary. In the Quran in what we call Ayattud
Dane; when someone wants to borrow at that time and they are really outside. They have
to write a contract of loan and they have to have two witnesses. Two men witnesses.
[Quoting the Quran in Arabic and then translation] "If there are not two men witnesses one
man and two women, maybe one will forget so other will remind her." This was during the
time when in the peninsula women were not really involved in business, only men. And,
therefore, to bring a lady to be a witness in a transaction sometimes it might be
complicated so they need two. So the Muslims, thereafter, said two women equal to one
man and it became a rule. We called it analogy, qias. Umar Bin Khattab, looking at the
objective of a witness, what is the objective?
The objective is reaching the truth, to find the truth. All right? So during his life time, when
it came women affairs, Umoor al Nisa, this lady got pregnant and that time delivered in the
day, she was nursing till that day-all their little affairs relating to women, Umar said, "no,
look, we don't need men there. We only need women and their testimony is higher that to
testimony of men. That's the deviation from the text in the Quran. OK. With this, now let's
come to what is prevailing today. Not only in matters of women. Today to have ladies with
MBA, graduating in business. They are running companies, they are doing a lot in banking.
You want to tell me that a Bedouin in the desert, his testimony comes before the testimony
of this lady. If Umar Bin Khattab is here with us today, he will definitely change that and
she becomes first, before a man like that.
In this area of Maqasid al Sharia there is a huge wealth. There is a lot of change that you
can do. Imam Malik is the only founder of a madhab, school of thought, who belongs to the
Madhab and he is not the real founder of the madhab. Why? The real founder if Umar Bin
Khattab and after him his son Abdullah Bin Umar, and then later Saeed Bin Mosaib and so
on. The Muslim jurists who applied what we call Maqasid al Sharia.
And then Imam Malik came and applied their opinions. That's why you find in the Maliki
school of thought Maqasid al Sharia. And he has what is called Amral Ahlal Madinah
established as a source of legislation. And he established Al-Masalah Al-Mursala, the public
interest of the Muslim community, as a source of legislation in Islam. It's a beautiful
madhab.
If someone can study it and lately, about three centuries ago, there is a very great Maliki
school, Imam Shaqlibi. He wrote about 12 volumes in Sharia. The second volume is
allocated to Maqasid al Sharia and right now we have so many scholars, Maliki scholars,
who are writing about Maqasid al Sharia and if you study you find a great departure from
what is known as Islamic law.
There is not Islamic law. If we want to apply the objectives and not the text as it is, this is
one area jurists must embark on it and must work very hard.
I am happy to say that I will have a seminar very soon from eminent jurists from the
Muslim world in the city of Makkah to study over a few days Maqasid al Sharia and we are
going to publish this. And there are so many efforts in this direction right now.
But let me give you another method, so to speak, of how to really update, I can't say
renovate Islamic law. It is the capacity, the various personalities of our prophet. Imam Al
Kharafi, a very famous jurist about seven centuries ago. He wrote a best book. He said that
the Prophet has so many capacities or personalities. He is a Prophet, and as such whatever
he says is definite. It's revelation from God. But, he is also the head of the state. And what
he does accordingly is based on his capacity as head of state is to be changed any time later
by another head of state. He is also a judge and he also said,"Maybe someone is more able
to explain his case better than the others. If, I base my judgment and it is wrong than he is
really getting a piece of fire in his stomach." And he is a mujtahid, he is then a human
being.
And what he does there is not binding. This is very important area. An example in the Quran
you find sometimes that God is addressing the Prophet not as a Prophet, as a head of a
state. "Why did you give them a permission. (Quran)" is a head of a state. Also, as head of
a state, he was obliged to consult with people and apply the majority opinion. He can't
really decide by his own opinion. One example: when the tribe of Quraish after being beaten
in Badr, they came next year to revenge. The Prophet knew about that and he brought all
the Muslims and he said in my opinion we don't leave Madinah and fight them here. If they
come here and our families will be behind us. We will be more courageous because we are
defending our children and wives. The Muslims said no, It's a sign of weakness. We like to
go outside and fight. This was the opinion of the majority. So he said all right. "I abide by
your opinion". He went inside and changed. During his absence they said what's wrong with
us? We wanted to oppose him. We change our minds. .
When he came outside, they told him we are to change our minds. He said, no, decision is
taken. This is democracy. And he went. And you know what happened. The Muslims were
defeated. They came back to Madinah. The Muslims said because we did not listen to him
God is punishing us. So God revealed to his Prophet a text, talking to him as head of state
not as prophet, "Mercy from God that you have this lenient character because you are not
so; you are tough, harsh they will leave you. So forgive them and pray for them and consult
with them."
Because as a prophet he cannot consult with them, but as a head of state he is obliged to
consult wit them. His cousin, Ali Ibne Abi Talib, said to him, "What is al-Azma al-azm Ya
Rasulallah?" He said, "Ittehadul amari ba'adal mashwera, You decide after consultation."
And then he said to Ali that if you have something after me happening and you don't have
the law for it, bring the majority of the people who know and you don't ever apply a one-
man opinion. Take the opinion of the majority. So this is democracy. This was applied in
Madinah then and it's not applied today in Islamic countries. So the capacity of the prophet
when he is the head of the state is very important. And in Islamic jurisprudence, for those
who studied Islamic jurisprudence they know what is the difference. The Prophet said: "If
you go and develop a piece of land which is not owned by anyone you will have the
ownership of that land." So, if you plant trees, dig a well or whatever it is you will become
an owner by virtue of that development. After that in the Fiqh you have two different
opinions. The Hanbali, for instance, they took it as if he said that as Prophet. So it is
binding. So this is why in the Hanbali school of thought if any goes and develops a land he
becomes the owner. In the Maliki, in the Hanafi, they said, "no, it is the imam who will say
that." Imam Malik said, "It is the imam, the head of the state who will decide, it's the law,
which can be changed, and so.
There are so many areas that you can apply, for example, someone, a Muslim, leaves
Islam, converted. The Prophet said: "Arabic". That was when the city of Madinah was small.
As you in Islam it is forbidden to ask someone, to force someone to become Muslim "La
Ikra'h fid deen" You cannot. But if he becomes Muslim by his own wish and will then he has
to say because the state was very weak at that time. Later on, it became very strong, it
didn't matter. And Umar Bin Khattab, again I come back to him. A ruler in Syria, there was
Muslim who deserted Islam so he killed him. When he came to Madinah and told Umar.
Umar said to him "Why did you kill him?" "Then what you do to him," the ruler asked. "You
just put him jail," Umar said. I don't kill him. This means that ridda'h is not really hadd. This
is what the Prophet decided to do as the head of the state in the same period of time. And
there are so many areas in Islamic law that could be also looked at in the light of the
capacity of the Prophet. There are so many other areas. I do not want take more of your
time.
But Islamic law is something beautiful, dynamic, something rich. If you know it, you study
it, you fall in love with it. But as Ruscoe Pound said it, unfortunately, we don't deserve this
law. Thank you very much.
*The text of Dr. Yamani's speech was published in Pakistan Link on February 5, 1999
THE STATUS OF WOMAN IN ISLAM

By Jamal A. Badawi
CONTENTS
PREFACE
INTRODUCTION
HISTORICAL PERSPECTIVES
1. Women in Ancient Civilization
WOMEN IN ISLAM
1. The Spiritual Aspect
2. The Social Aspect
(a) As a Child and Adolescent
(b) As a Wife
(c) As a Mother
3. The Economic Aspect

4. The Political Aspect
CONCLUSION
BIBLIOGRAPHY
PREFACE
Family, society and ultimately the whole of mankind is treated by Islam on
an ethical basis. Differentiation in sex is neither a credit nor a drawback for
the sexes. Therefore, when we talk about status of woman in Islam it should
not lead us to think that Islam has no specific guidelines, limitations,
responsibilities and obligations for men. What makes one valuable and
respectable in the eyes of Allah, the Creator of mankind and the universe, is
neither one's prosperity, position, intelligence, physical strength nor beauty,
but only one's Allah-consciousness and awareness (taqwa). However, since
in the Western culture and in cultures influenced by it, there exists a
disparity between men and women there is more need for stating Islam's
position on important issues in a clear way.
Dr. Jamal Badawi's essay, The Status of Women in Islam, was originally
published in our quarterly journal, Al-lttihad, Vol. 8, No. 2, Sha'ban
1391/Sept 1971. Since then it has been one of our most-demanded
publications. We thank Br. Jamal for permitting us to reprint his essay. We
hope it will clarify many of the misconceptions.
Anis Ahmad,
Director Dept. of Education and Training
MSA of U.S. and Canada
P.O. Box 38 Plainfield, IN 46168 USA
Jumada al Thani 1400 April 1980
I. INTRODUCTION
The status of women in society is neither a new issue nor is it a fully settled
one.
The position of Islam on this issue has been among the subjects presented
to the Western reader with the least objectivity.
This paper is intended to provide a brief and authentic exposition of what
Islam stands for in this regard. The teachings of Islam are based essentially
on the Qur'an (God's revelation) and Hadeeth (elaboration by Prophet
Muhammad).
The Qur'an and the Hadeeth, properly and unbiasedly understood, provide
the basic source of authentication for any position or view which is attributed
to Islam.
The paper starts with a brief survey of the status of women in the pre-
Islamic era. It then focuses on these major questions:
What is the position of Islam regarding the status of woman in society? How
similar or different is that position from "the spirit of the time," which was
dominant when Islam was revealed? How would this compare with the
"rights" which were finally gained by woman in recent decades?
II. HISTORICAL PERSPECTIVES

One major objective of this paper is to provide a fair evaluation of what
Islam contributed (or failed to contribute) toward the restoration of woman's
dignity and rights. In order to achieve this objective, it may be useful to
review briefly how women were treated in general in previous civilizations
and religions, especially those which preceded Islam (Pre-610 C.E.). Part of
the information provided here, however, describes the status of woman as
late as the nineteenth century, more than twelve centuries after Islam.
Women in Ancient Civilization
Describing the status of the Indian woman, Encyclopedia Britannica states:
In India, subjection was a cardinal principle. Day and night must women be held by
their protectors in a state of dependence says Manu. The rule of inheritance was
agnatic, that is descent traced through males to the exclusion of females.
In Hindu scriptures, the description of a good wife is as follows: "a woman

whose mind, speech and body are kept in subjection, acquires high renown
in this world, and, in the next, the same abode with her husband."
In Athens, women were not better off than either the Indian or the Roman
women.
"Athenian women were always minors, subject to some male - to their
father, to their brother, or to some of their male kin.
Her consent in marriage was not generally thought to be necessary and "she
was obliged to submit to the wishes of her parents, and receive from them
her husband and her lord, even though he were stranger to her."
A Roman wife was described by an historian as: "a babe, a minor, a ward, a
person incapable of doing or acting anything according to her own individual
taste, a person continually under the tutelage and guardianship of her
husband."
In the Encyclopedia Britannica, we find a summary of the legal status of
women in the Roman civilization:
In Roman Law a woman was even in historic times completely dependent. If
married she and her property passed into the power of her husband . . . the wife
was the purchased property of her husband, and like a slave acquired only for his
benefit. A woman could not exercise any civil or public office . could not be a
witness, surety, tutor, or curator; she could not adopt or be adopted, or make will
or contract. Among the Scandinavian races women were:
under perpetual tutelage, whether married or unmarried. As late as the Code

of Christian V, at the end of the 17th Century, it was enacted that if a
woman married without the consent of her tutor he might have, if he
wished, administration and usufruct of her goods during her life.
According to the English Common Law:
...all real property which a wife held at the time of a marriage became a
possession of her husband. He was entitled to the rent from the land and to
any profit which might be made from operating the estate during the joint
life of the spouses. As time passed, the English courts devised means to
forbid a husband's transferring real property without the consent of his wife,
but he still retained the right to manage it and to receive the money which it
produced. As to a wife's personal property, the husband's power was
complete. He had the right to spend it as he saw fit.
Only by the late nineteenth Century did the situation start to improve. "By a
series of acts starting with the Married women's Property Act in 1870,
amended in 1882 and 1887, married women achieved the right to own
property and to enter contracts on a par with spinsters, widows, and
divorcees." As late as the Nineteenth Century an authority in ancient law, Sir
Henry Maine, wrote: "No society which preserves any tincture of Christian
institutions is likely to restore to married women the personal liberty
conferred on them by the Middle Roman Law."
In his essay The Subjection of Women, John Stuart Mill wrote:
We are continually told that civilization and Christianity have restored to the woman
her just rights. Meanwhile the wife is the actual bondservant of her husband; no
less so, as far as the legal obligation goes, than slaves commonly so called.
Before moving on to the Qur'anic decrees concerning the status of woman, a

few Biblical decrees may shed more light on the subject, thus providing a
better basis for an impartial evaluation. In the Mosaic Law, the wife was
betrothed. Explaining this concept, the Encyclopedia Biblica states: "To
betroth a wife to oneself meant simply to acquire possession of her by
payment of the purchase money; the betrothed is a girl for whom the
purchase money has been paid." From the legal point of view, the consent of
the girl was not necessary for the validation of her marriage. "The girl's
consent is unnecessary and the need for it is nowhere suggested in the
Law."
As to the right of divorce, we read in the Encyclopedia Biblica: "The woman
being man's property, his right to divorce her follows as a matter of course."
The right to divorce was held only by man. "In the Mosaic Law divorce was a
privilege of the husband only .... "
The position of the Christian Church until recent centuries seems to have
been influenced by both the Mosaic Law and by the streams of thought that
were dominant in its contemporary cultures. In their book, Marriage East
and West, David and Vera Mace wrote:
Let no one suppose, either, that our Christian heritage is free of such slighting
judgments. It would be hard to find anywhere a collection of more degrading
references to the female sex than the early Church Fathers provide. Lecky, the
famous historian, speaks of (these fierce incentives which form so conspicuous and
so grotesque a portion of the writing of the Fathers . . . woman was represented as
the door of hell, as the mother of all human ills. She should be ashamed at the very
thought that she is a woman. She should live in continual penance on account of
the curses she has brought upon the world. She should be ashamed of her dress,
for it is the memorial of her fall. She should be especially ashamed of her beauty,
for it is the most potent instrument of the devil). One of the most scathing of these
attacks on woman is that of Tertullian: Do you know that you are each an Eve? The
sentence of God on this sex of yours lives in this age: the guilt must of necessity
live too. You are the devil's gateway: you are the unsealer of that forbidden tree;
you are the first deserters of the divine law; you are she who persuades him whom
the devil was not valiant enough to attack. You destroyed so easily God's image,
man. On account of your desert - that is death - even the Sop of God had to die).
Not only did the church affirm the inferior status of woman, it deprived her of legal
rights she had previously enjoyed.
. WOMAN IN ISLAM
In the midst of the darkness that engulfed the world, the divine revelation
echoed in the wide desert of Arabia with a fresh, noble, and universal
message to humanity: "O Mankind, keep your duty to your Lord who created
you from a single soul and from it created its mate (of same kind) and from
them twain has spread a multitude of men and women" (Qur'an 4: 1).
A scholar who pondered about this verse states: "It is believed that there is
no text, old or new, that deals with the humanity of the woman from all
aspects with such amazing brevity, eloquence, depth, and originality as this
divine decree."
Stressing this noble and natural conception, them Qur'an states:
He (God) it is who did create you from a single soul and therefrom did create his
mate, that he might dwell with her (in love)...(Qur'an 7:189)
The Creator of heavens and earth: He has made for you pairs from among
yourselves ...Qur'an 42:1 1
And Allah has given you mates of your own nature, and has given you from
your mates, children and grandchildren, and has made provision of good
things for you. Is it then in vanity that they believe and in the grace of God
that they disbelieve? Qur'an 16:72
The rest of this paper outlines the position of Islam regarding the status of
woman in society from its various aspects - spiritually, socially, economically
and politically.
1. The Spiritual Aspect

The Qur'an provides clear-cut evidence that woman iscompletely
equated with man in the sight of God interms of her rights and
responsibilities. The Qur'an states:
"Every soul will be (held) in pledge for its deeds" (Qur'an 74:38). It also
states:
...So their Lord accepted their prayers, (saying): I will not suffer to be
lost the work of any of you whether male or female. You proceed one
from another ...(Qur'an 3: 195).
Whoever works righteousness, man or woman, and has faith, verily to
him will We give a new life that is good and pure, and We will bestow
on such their reward according to the their actions. (Qur'an 16:97, see
also 4:124).
Woman according to the Qur'an is not blamed for Adam's first mistake.
Both were jointly wrong in their disobedience to God, both repented,
and both were forgiven. (Qur'an 2:36, 7:20 - 24). In one verse in fact
(20:121), Adam specifically, was blamed.
In terms of religious obligations, such as the Daily Prayers, Fasting,
Poor-due, and Pilgrimage, woman is no different from man. In some
cases indeed, woman has certain advantages over man. For example,
the woman is exempted from the daily prayers and from fasting during
her menstrual periods and forty days after childbirth. She is also
exempted from fasting during her pregnancy and when she is nursing
her baby if there is any threat to her health or her baby's. If the
missed fasting is obligatory (during the month of Ramadan), she can
make up for the missed days whenever she can. She does not have to
make up for the prayers missed for any of the above reasons.
Although women can and did go into the mosque during the days of
the prophet and thereafter attendance et the Friday congregational
prayers is optional for them while it is mandatory for men (on Friday).
This is clearly a tender touch of the Islamic teachings for they are
considerate of the fact that a woman may be nursing her baby or
caring for him, and thus may be unable to go out to the mosque at the
time of the prayers. They also take into account the physiological and
psychological changes associated with her natural female functions.
2. The Social Aspect
a) As a child and an adolescent
Despite the social acceptance of female infanticide among some Arabian

tribes, the Qur'an forbade this custom, and considered it a crime like any
other murder.
"And when the female (infant) buried alive - is questioned, for what crime she
was killed." (Qur'an 81:8-9).
Criticizing the attitudes of such parents who reject their female children,
the Qur'an states:
When news is brought to one of them, of (the Birth of) a female (child), his face
darkens and he is filled with inward grief! With shame does he hide himself from
his people because of the bad news he has had! Shall he retain her on
(sufferance) and contempt, or bury her in the dust? Ah! What an evil (choice)
they decide on? (Qur'an 16: 58-59).
Far from saving the girl's life so that she may later suffer injustice and
inequality, Islam requires kind and just treatment for her. Among the
sayings of Prophet Muhammad (P.) in this regard are the following:
Whosoever has a daughter and he does not bury her alive, does not insult her,
and does not favor his son over her, God will enter him into Paradise. (Ibn
Hanbal, No. 1957).
Whosoever supports two daughters till they mature, he and I will come in
the day of judgment as this (and he pointed with his two fingers held
together).
A similar Hadeeth deals in like manner with one who supports two sisters.
(Ibn-Hanbal, No. 2104).
The right of females to seek knowledge is not different from that of males.
Prophet Muhammad (P.) said:
"Seeking knowledge is mandatory for every Muslim". (Al Bayhaqi). Muslim as used
here including both males and females.
b) As a wife:
The Qur'an clearly indicates that marriage is sharing between the two
halves of the society, and that its objectives, beside perpetuating human
life, are emotional well-being and spiritual harmony. Its bases are love and
mercy.
Among the most impressive verses in the Qur'an about marriage is the
following.
"And among His signs is this: That He created mates for you from yourselves that
you may find rest, peace of mind in them, and He ordained between you love and
mercy. Lo, herein indeed are signs for people who reflect." (Qur'an 30:2 1).
According to Islamic Law, women cannot be forced to marry anyone

without their consent.
Ibn Abbas reported that a girl came to the Messenger of God, Muhammad
(P.), and she reported that her father had forced her to marry without her
consent. The Messenger of God gave her the choice . . . (between
accepting the marriage or invalidating it). (Ibn Hanbal No. 2469). In
another version, the girl said: "Actually I accept this marriage but I wanted
to let women know that parents have no right (to force a husband on
them)" (Ibn Maja, No. 1873).
Besides all other provisions for her protection at the time of marriage, it
was specifically decreed that woman has the full right to her Mahr, a
marriage gift, which is presented to her by her husband and is included in
the nuptial contract, and that such ownership does not transfer to her
father or husband. The concept of Mahr in Islam is neither an actual or
symbolic price for the woman, as was the case in certain cultures, but
rather it is a gift symbolizing love and affection.
The rules for married life in Islam are clear and in harmony with upright
human nature. In consideration of the physiological and psychological
make-up of man and woman, both have equal rights and claims on one
another, except for one responsibility, that of leadership. This is a matter
which is natural in any collective life and which is consistent with the
nature of man.
1.
The Qur'an thus states:

"And they (women) have rights similar to those (of men) over them, and men are a
degree above them." (Qur'an 2:228).
Such degree is Quiwama (maintenance and protection). This refers to that

natural difference between the sexes which entitles the weaker sex to
protection. It implies no superiority or advantage before the law. Yet, man's
role of leadership in relation to his family does not mean the husband's
dictatorship over his wife. Islam emphasizes the importance of taking
counsel and mutual agreement in family decisions. The Qur'an gives us an
example:
"...If they (husband wife) desire to wean the child by mutual consent and (after)
consultation, there is no blame on them..." (Qur'an 2: 233).
Over and above her basic rights as a wife comes the right which is
emphasized by the Qur'an and is strongly recommended by the Prophet (P);
kind treatment and companionship.
The Qur'an states:
"...But consort with them in kindness, for if you hate them it may happen that you
hate a thing wherein God has placed much good." (Qur'an 4: l9).
Prophet Muhammad. (P) said:

The best of you is the best to his family and I am the best among you to my
family.
The most perfect believers are the best in conduct and best of you are those
who are best to their wives. (Ibn-Hanbal, No. 7396)
Behold, many women came to Muhammad's wives complaining against their
husbands (because they beat them) - - those (husbands) are not the best of
you.
As the woman's right to decide about her marriage is recognized, so also her
right to seek an end for an unsuccessful marriage is recognized. To provide
for the stability of the family, however, and in order to protect it from hasty
decisions under temporary emotional stress, certain steps and waiting
periods should be observed by men and women seeking divorce. Considering
the relatively more emotional nature of women, a good reason for asking for
divorce should be brought before the judge. Like the man, however, the
woman can divorce her husband with out resorting to the court, if the
nuptial contract allows that.
More specifically, some aspects of Islamic Law concerning marriage and
divorce are interesting and are worthy of separate treatment.
When the continuation of the marriage relationship is impossible for any
reason, men are still taught to seek a gracious end for it.
The Qur'an states about such cases:
When you divorce women, and they reach their prescribed term, then retain them
in kindness and retain them not for injury so that you transgress (the limits).
(Qur'an 2:231). (See also Qur'an 2:229 and 33:49).
c) As a mother:
Islam considered kindness to parents next to the worship of God.
"And we have enjoined upon man (to be good) to his parents: His mother
bears him in weakness upon weakness..." (Qur'an 31:14) (See also Qur'an
46:15, 29:8).
Moreover, the Qur'an has a special recommendation for the good

treatment of mothers:
"Your Lord has decreed that you worship none save Him, and that you be
kind to your parents. . ." (Qur'an 17:23).
A man came to Prophet Muhammad (P) asking:

O Messenger of God, who among the people is the most worthy of my good
company? The Prophet (P) said, Your mother. The man said then who else:
The Prophet (P) said, Your mother. The man asked, Then who else? Only
then did the Prophet (P) say, Your father. (Al-Bukhari and Muslim).
A famous saying of The Prophet is "Paradise is at the feet of

mothers." (In Al'Nisa'I, Ibn Majah, Ahmad).
"It is the generous (in character) who is good to women, and it is
the wicked who insults them."
2.
3. The Economic Aspect
Islam decreed a right of which woman was deprived both before Islam
and after it (even as late as this century), the right of independent
ownership. According to Islamic Law, woman's right to her money, real
estate, or other properties is fully acknowledged. This right undergoes
no change whether she is single or married. She retains her full rights
to buy, sell, mortgage or lease any or all her properties. It is nowhere
suggested in the Law that a woman is a minor simply because she is a
female. It is also noteworthy that such right applies to her properties
before marriage as well as to whatever she acquires thereafter.
With regard to the woman's right to seek employment it should be
stated first that Islam regards her role in society as a mother and a
wife as the most sacred and essential one. Neither maids nor baby-
sitters can possibly take the mother's place as the educator of an
upright, complex free, and carefully-reared children. Such a noble and
vital role, which largely shapes the future of nations, cannot be
regarded as "idleness".
However, there is no decree in Islam which forbids woman from
seeking employment whenever there is a necessity for it, especially in
positions which fit her nature and in which society needs her most.
Examples of these professions are nursing, teaching (especially for
children), and medicine. Moreover, there is no restriction on benefiting
from woman's exceptional talent in any field. Even for the position of a
judge, where there may be a tendency to doubt the woman's fitness
for the post due to her more emotional nature, we find early Muslim
scholars such as Abu-Hanifa and Al-Tabary holding there is nothing
wrong with it. In addition, Islam restored to woman the right of
inheritance, after she herself was an object of inheritance in some
cultures. Her share is completely hers and no one can make any claim
on it, including her father and her husband.
"Unto men (of the family) belongs a share of that which Parents and near
kindred leave, and unto women a share of that which parents and near
kindred leave, whether it be a little or much - a determinate share." ((Qur'an
4:7).
Her share in most cases is one-half the man's share, with no

implication that she is worth half a man! It would seem grossly
inconsistent after the overwhelming evidence of woman's equitable
treatment in Islam, which was discussed in the preceding pages, to
make such an inference. This variation in inheritance rights is only
consistent with the variations in financial responsibilities of man and
woman according to the Islamic Law. Man in Islam is fully responsible
for the maintenance of his wife, his children, and in some cases of his
needy relatives, especially the females. This responsibility is neither
waived nor reduced because of his wife's wealth or because of her
access to any personal income gained from work, rent, profit, or any
other legal means.
Woman, on the other hand, is far more secure financially and is far
less burdened with any claims on her possessions. Her possessions
before marriage do not transfer to her husband and she even keeps
her maiden name. She has no obligation to spend on her family out of
such properties or out of her income after marriage. She is entitled to
the "Mahr" which she takes from her husband at the time of marriage.
If she is divorced, she may get an alimony from her ex-husband.
An examination of the inheritance law within the overall framework of
the Islamic Law reveals not only justice but also an abundance of
compassion for woman.
1. The Political Aspect

Any fair investigation of the teachings of Islam or into the history of
the Islamic civilization will surely find a clear evidence of woman's
equality with man in what we call today "political rights".
This includes the right of election as well as the nomination to political
offices. It also includes woman's right to participate in public affairs.
Both in the Qur'an and in Islamic history we find examples of women
who participated in serious discussions and argued even with the
Prophet (P) himself, (see Qur'an 58: 14 and 60: 10-12).
During the Caliphate of Omar Ibn al-Khattab, a woman argued with
him in the mosque, proved her point, and caused him to declare in the
presence of people: "A woman is right and Omar is wrong."
Although not mentioned in the Qur'an, one Hadeeth of the Prophet is
interpreted to make woman ineligible for the position of head of state.
The Hadeeth referred to is roughly translated: "A people will not
prosper if they let a woman be their leader." This limitation, however,
has nothing to do with the dignity of woman or with her rights. It is
rather, related to the natural differences in the biological and
psychological make-up of men and women.
According to Islam, the head of the state is no mere figurehead. He
leads people in the prayers, especially on Fridays and festivities; he is
continuously engaged in the process of decision-making pertaining to
the security and well-being of his people. This demanding position, or
any similar one, such as the Commander of the Army, is generally
inconsistent with the physiological and psychological make-up of
woman in general. It is a medical fact that during their monthly
periods and during their pregnancies, women undergo various
physiological and psychological changes. Such changes may occur
during an emergency situation, thus affecting her decision, without
considering the excessive strain which is produced. Moreover, some
decisions require a maximum of rationality and a minimum of
emotionality - a requirement which does not coincide with the
instinctive nature of women.
Even in modern times, and in the most developed countries, it is rare
to find a woman in the position of a head of state acting as more than
a figurehead, a woman commander of the armed services, or even a
proportionate number of women representatives in parliaments, or
similar bodies. One can not possibly ascribe this to backwardness of
various nations or to any constitutional limitation on woman's right to
be in such a position as a head of state or as a member of the
parliament. It is more logical to explain the present situation in terms
of the natural and indisputable differences between man and woman, a
difference which does not imply any "supremacy" of one over the
other. The difference implies rather the "complementary" roles of both
the sexes in life.
IV. CONCLUSION
The first part of this paper deals briefly with the position of various religions
and cultures on the issue under investigation. Part of this exposition extends
to cover the general trend as late as the nineteenth century, nearly 1300
years after the Qur'an set forth the Islamic teachings.
In the second part of the paper, the status of women in Islam is briefly
discussed. Emphasis in this part is placed on the original and authentic
sources of Islam. This represents the standard according to which degree of
adherence of Muslims can be judged. It is also a fact that during the
downward cycle of Islamic Civilization, such teachings were not strictly
adhered to by many people who profess to be Muslims.
Such deviations were unfairly exaggerated by some writers, and the worst of
this, were superficially taken to represent the teachings of "Islam" to the
Western reader without taking the trouble to make any original and unbiased
study of the authentic sources of these teachings.
Even with such deviations three facts are worth mentioning:
1. The history of Muslims is rich with women of great achievements in all walks
of life from as early as the seventh century (B.C.)
2. It is impossible for anyone to justify any mistreatment of woman by any
decree of rule embodied in the Islamic Law, nor could anyone dare to cancel,
reduce, or distort the clear-cut legal rights of women given in Islamic Law.
3. Throughout history, the reputation, chastity and maternal role of Muslim
women were objects of admiration by impartial observers.
It is also worthwhile to state that the status which women reached during
the present era was not achieved due to the kindness of men or due to
natural progress. It was rather achieved through a long struggle and
sacrifice on woman's part and only when society needed her contribution and
work, more especial!; during the two world wars, and due to the escalation
of technological change.
In the case of Islam such compassionate and dignified status was decreed,
not because it reflects the environment of the seventh century, nor under
the threat or pressure of women and their organizations, but rather because
of its intrinsic truthfulness.
If this indicates anything, it would demonstrate the divine origin of the
Qur'an and the truthfulness of the message of Islam, which, unlike human
philosophies and ideologies, was far from proceeding from its human
environment, a message which established such humane principles as
neither grew obsolete during the course of time and after these many
centuries, nor can become obsolete in the future. After all, this is the
message of the All-Wise and all-knowing God whose wisdom and knowledge
are far beyond the ultimate in human thought and progress.
BIBLIOGRAPHY
The Holy, Qur'an: Translation of verses is heavily based on A. Yusuf Ali's
translation, The Glorious Qur'an, text translation, and Commentary, The
American Trust Publication, Plainfield, IN 46168, 1979.
Abd Al-Ati, Hammudah, Islam in Focus, The American Trust Publications,
Plainfield, IN 46168, 1977.
Allen, E. A., History of Civilization, General Publishing House, Cincinnati,
Ohio, 1889, Vol. 3.
Al Siba'i, Mustafa, Al-Alar'ah Baynal Fiqh Walqanoon (in Arabic), 2nd. ea.,
Al-Maktabah Al-Arabiah, Halab, Syria, 1966.
El-Khouli, Al-Bahiy, "Min Usus Kadiat Al-Mara'ah" (in Arabic), A 1- Waay A l-
lslami, Ministry of Walcf, Kuwait, Vol.3 (No. 27), June 9, 1967, p.17.
Encyclopedia Americana (International Edition), American Corp., N.Y., 1969,
Vol.29.
Encyclopedia Biblica (Rev.T.K.Cheynene and J.S.Black, editors), The
Macmillan Co., London, England, 1902, Vol.3.
The Encyclopedia Britannica, (11 th ed.), University Press Cambridge,
England, 191 1, Vol.28.
Encyclopedia Britannica, The Encyclopedia Britannica, Inc., Chicago, III.,
1968, Vol.23.
Hadeeth. Most of the quoted Hadeeth were translated by the writer. They
are quoted in various Arabic sources. Some of them, however, were
translated directly from the original sources. Among the sources checked are
Musnad Ahmad Ibn Hanbal Dar AlMa'aref, Cairo, U.A.R., 1950, and 1955,
Vol.4 and 3,SunanIbnMajah, Dar Ihya'a Al-Kutub al-Arabiah, Cairo, U.A.R.,
1952, Vol.l, Sunan al-Tirimidhi, Vol.3.
Mace, David and Vera, Marriage: East and West, Dolphin Books, Doubleday
and Co., Inc., N.Y., 1960.
Gender Equity in Islam

Jamal A. Badawi, Ph.D.
World Assembly of Muslim Youth - WAMY Studies on Islam
I. Introduction & Methodology

When dealing with the Islamic perspective of any topic, there should be a
clear distinction between the normative teachings of Islam and the diverse
cultural practices among Muslims, which may or may not be consistent with
them. The focus of this paper is the normative teachings of Islam as the
criteria to judge Muslim practices and evaluate their compliance with Islam.
In identifying what is "Islamic" it is necessary to make a distinction between
the primary sources of Islam (the Qur'an and the Sunnah) and legal opinions
of scholars on specific issues, which may vary and be influenced by their
times, circumstances, and cultures. Such opinions and verdicts do not enjoy
the infallibility accorded to the primary and revelatory sources. Furthermore,
interpretation of the primary sources should consider, among other things:
(a) The context of any text in the Qur'an and the Sunnah. This includes the
general context of Islam, its teachings, its world view, and the context of the
surah and section thereof.
(b) The occasion of the revelation, which may shed light on its meanings.
(c) The role of the Sunnah in explaining and defining the meaning of the
Qur'anic text.
This paper is a brief review of the position and role of woman in society from
an Islamic perspective. The topic is divided into spiritual, economic, social,
and political aspects.
II. The Spiritual Aspect

1. According to the Qur'an, men and women have the same spiritual human
nature:
O mankind: Reverence your Guardian Lord Who created you from a
single person created of like nature his mate and from them twain
scattered (like seeds) countless men and women; reverence Allah
through Whom you demand your mutual (rights) and (reverence) the
wombs (that bore you): for Allah ever watches over you. (Qur'an 4:1)
It is He who created you from a single person and made his mate of
like nature in order that he might dwell with her (in love). When they
are united she bears a light burden and carries it about (unnoticed).
When she grows heavy they both pray to Allah their Lord (saying): "If
You give us a goodly child we vow we shall (ever) be grateful." (Qur'an
7:189)
(He is) the Creator of the heavens and the earth: He has made for you
pairs from among yourselves and pairs among cattle: by this means
does He multiply you: there is nothing whatever like unto Him and Her
is the One that hears and sees (all things.) (Qur'an 42:11)
2. Both genders are recipients of the "divine breath" since they are created with
the same human and spiritual nature (nafsin-waahidah):
But He fashioned him in due proportion and breathed into him
something of His spirit. And He gave you (the faculties of) hearing and
sight and feeling (and understanding): little thanks to you give (Qur'an
15:29)
3. Both genders are dignified and are trustees of Allah on earth.

We have honored the children of Adam, provided them with transport
on land and sea; given them for sustenance things good and pure; and
conferred on them special favors above a great part of Our Creation.
(Qur'an 17:70)
Behold your Lord said to the angels: "I will create a vicegerent on
earth." They said "Will you place therein one who will make mischief
therein and shed blood? Whilst we do celebrate Your praises and
glorify Your holy (name)?" He said: "I know what you do not." (Qur'an
2:30)
4. According to the Qur'an, woman is not blamed for the "fall of man."
Pregnancy and childbirth are not seen as punishments for "eating from the
for bidden tree." On the contrary, the Qur'an considers them to be grounds
for love and respect due to mothers.
In narrating the story of Adam and Eve, the Qur'an frequently refers to
both of them, never singling out Eve for the blame:
O Adam! Dwell you and your wife in the garden and enjoy (its good
things) as you [both] wish: but approach not this tree or you [both]
run into harm and transgression. Then began Satan to whisper
suggestions to them bringing openly before their minds all their shame
that was hidden from them (before): he said "Your Lord only forbade
you this tree lest you [both] should become angels or such beings as
live for ever." And he swore to them both that he was their sincere
adviser. So by deceit he brought about their fall: when they tasted of
the tree their shame became manifest to them and they began to sew
together the leaves of the garden over their bodies. And their Lord
called unto them: "Did I not forbid you that tree and tell you that
Satan was an avowed enemy unto you?" They said: "Our Lord! We
have wronged our own souls: if you forgive us not and bestow not
upon us Your mercy we shall certainly be lost." (Allah) said: "Get you
[both] down with enmity between yourselves. On earth will be your
dwelling place and your means of livelihood for a time." He said:
"Therein shall you [both] live and therein shall you [both] die; and
from it shall you [both] be taken out (at last)." O you children of
Adam! We have bestowed raiment upon you to cover your shame as
well as to be an adornment to you but the raiment of righteousness
that is the best. Such are among the signs of Allah that they may
receive admonition! O you children of Adam! Let not Satan seduce you
in the same manner as he got your parents out of the garden stripping
them of their raiment to expose their shame: for he and his tribe
watch you from a position where you cannot see them: We made the
evil ones friends (only) to those without faith. (Qur'an 7:19 27)
On the question of pregnancy and childbirth, the Qur'an states:
And We have enjoined on the person (to be good) to his/her parents:
in travail upon travail did his/her mother bear his/her and in years
twain was his/her weaning: (hear the command) "Show gratitude to
Me and to your parents: to Me is (your final) Goal. (Qur'an 31:14)
We have enjoined on the person kindness to his/her parents: in pain
did his/her mother bear him/her and in paid did she give him/her
birth. The carrying of the (child) to his/her weaning is ( a period of)
thirty months. At length when he/she reaches the age of full strength
and attains forty years he/she says "O my Lord! Grant me that I may
be grateful for Your favor which You have bestowed upon me and upon
both my parents and that I may work righteousness such as You may
approve; and be gracious to me in my issue.Truly have I turned to You
and truly do I bow (to You) in Islam [submission]." (Qur'an 46:15)
5. Men and women have the same religious and moral duties and
responsibilities. They both face the consequences of their deeds:
And their Lord has accepted of them and answered them: "Never will I
suffer to be los the work of any of you be it male or female: you are
members of one another ..." (Qur'an 3:195)
If any do deeds of righteousness be they male or female and have
faith they will enter paradise and not the least injustice will be done to
them. (Qur'an 4:124)
For Muslim men and women and for believing men and women, for
devout men and women, for true men and women, for men and
women who are patient and constant, for men and women who
humble themselves, for men and women who give in charity, for men
and women who fast (and deny themselves), for men and women who
guard their chastity, and for men and women who engage much in
Allah's praise, for them has Allah prepared forgiveness and great
reward. (Qur'an 33:35)
One Day shall you see the believing men and the believing women how
their Light runs forward before them and by their right hands: (their
greeting will be): "Good news for you this Day! Gardens beneath which
flow rivers! To dwell therein for ever! This is indeed the highest
Achievement!" (Qur'an 57:12)
6. Nowhere dow the Qur'an state that one gender is superior to the other. Some
mistakenly translate "qiwamah" or responsibility for the family as superiority.
The Qur'an makes it clear that the sole basis for superiority of any person
over another is piety and righteousness not gender, color, or nationality:
O mankind! We created you from a single (pair) of a male and a
female and made you into nations and tribes that you may know each
other. Verily the most honored of you in the sight of Allah is (one who
is) the most righteous of you. And Allah has full knowledge and is well
acquainted (with all things). (Qur'an 49:13)
7. The absence of women as prophets or "Messengers of Allah" in prophetic

history is due to the demands and physical suffering associated with the role
of messengers and prophets and not because of any spiritual inferiority.
III. The Economic Aspect
1. The Islamic Shariiah recognizes the full property rights of women before and
after marriage. A married woman may keep her maiden name.
2. Greater financial security is assured for women. They are entitled to receive
marital gifts, to keep present and future properties and income for their own
security. No married woman is required to spend a penny from her property
and income on the household. She is entitled to full financial support during
marriage and during the waiting period ('iddah) in case of divorce. She is
also entitled to child support. Generally, a Muslim woman is guaranteed
support in all stages of her life, as a daughter, wife, mother, or sister. These
additional advantages of women over men are somewhat balanced by the
provisions of the inheritance which allow the male, in most cases, to inherit
twice as much as the female. This means that the male inherits more but is
responsible financially for other females: daughters, wives, mother, and
sister, while the female (i.e., a wife) inherits less but can keep it all for
investment and financial security without any legal obligation so spend any
part of it even for her own sustenance (food, clothing, housing, medication,
etc.).
IV. The Social Aspect
First: As a Daughter
1. The Qur'an effectively ended the cruel pre Islamic practice of female
infanticide (wa'd):
When the female (infant) buried alive is questioned for what crime she
was killed. (Qur'an 81 89)
2. The Qur'an went further to rebuke the unwelcoming attitudes among some
parents upon hearing the news of the birth of a baby girl, instead of a baby
boy:
When news is brought to one of them of (the birth of) a female (child)
his face darkens and he is filled with inward grief! With shame does he
hide himself from his people because of the bad news he has had!
Shall he retain her on (sufferance and) contempt or bury her in the
dust? Ah! what an evil (choice) they decide on! (Qur'an 16:58 59)
3. Parents are duty bound to support and show kindness and justice to their
daughters. Prophet Muhammad said:
"Whosoever has a daughter and he does not bury her alive, does not
insult her, and does not favor his son over her, Allah will enter him
into Paradise." [Ahmad]
"Whosoever supports two daughters til they mature, he and I will
come in the day of judgment as this (and he pointed with his two
fingers held together)." [Ahmad]
4. Education is not only a right but also a responsibility of all males and
females. Prophet Muhammad said:
"Seeking knowledge is mandatory for every Muslim ("Muslim" is used
here in the generic meaning which includes both males and females).
Gender Equity in Islam

Jamal A. Badawi, Ph.D.
World Assembly of Muslim Youth - WAMY Studies on Islam
I. Introduction & Methodology

When dealing with the Islamic perspective of any topic, there should be a
clear distinction between the normative teachings of Islam and the diverse
cultural practices among Muslims, which may or may not be consistent with
them. The focus of this paper is the normative teachings of Islam as the
criteria to judge Muslim practices and evaluate their compliance with Islam.
In identifying what is "Islamic" it is necessary to make a distinction between
the primary sources of Islam (the Qur'an and the Sunnah) and legal opinions
of scholars on specific issues, which may vary and be influenced by their
times, circumstances, and cultures. Such opinions and verdicts do not enjoy
the infallibility accorded to the primary and revelatory sources. Furthermore,
interpretation of the primary sources should consider, among other things:
(a) The context of any text in the Qur'an and the Sunnah. This includes the
general context of Islam, its teachings, its world view, and the context of the
surah and section thereof.
(b) The occasion of the revelation, which may shed light on its meanings.
(c) The role of the Sunnah in explaining and defining the meaning of the
Qur'anic text.
This paper is a brief review of the position and role of woman in society from
an Islamic perspective. The topic is divided into spiritual, economic, social,
and political aspects.
II. The Spiritual Aspect

1. According to the Qur'an, men and women have the same spiritual human
nature:
O mankind: Reverence your Guardian Lord Who created you from a
single person created of like nature his mate and from them twain
scattered (like seeds) countless men and women; reverence Allah
through Whom you demand your mutual (rights) and (reverence) the
wombs (that bore you): for Allah ever watches over you. (Qur'an 4:1)
It is He who created you from a single person and made his mate of
like nature in order that he might dwell with her (in love). When they
are united she bears a light burden and carries it about (unnoticed).
When she grows heavy they both pray to Allah their Lord (saying): "If
You give us a goodly child we vow we shall (ever) be grateful." (Qur'an
7:189)
does He multiply you: there is nothing whatever like unto Him and Her
is the One that hears and sees (all things.) (Qur'an 42:11)
2. Both genders are recipients of the "divine breath" since they are created with
the same human and spiritual nature (nafsin-waahidah):
But He fashioned him in due proportion and breathed into him
something of His spirit. And He gave you (the faculties of) hearing and
sight and feeling (and understanding): little thanks to you give (Qur'an
15:29)
3. Both genders are dignified and are trustees of Allah on earth.

We have honored the children of Adam, provided them with transport
on land and sea; given them for sustenance things good and pure; and
conferred on them special favors above a great part of Our Creation.
(Qur'an 17:70)
Behold your Lord said to the angels: "I will create a vicegerent on
earth." They said "Will you place therein one who will make mischief
therein and shed blood? Whilst we do celebrate Your praises and
glorify Your holy (name)?" He said: "I know what you do not." (Qur'an
2:30)
4. According to the Qur'an, woman is not blamed for the "fall of man."
Pregnancy and childbirth are not seen as punishments for "eating from the
for bidden tree." On the contrary, the Qur'an considers them to be grounds
for love and respect due to mothers.
In narrating the story of Adam and Eve, the Qur'an frequently refers to
both of them, never singling out Eve for the blame:
O Adam! Dwell you and your wife in the garden and enjoy (its good
things) as you [both] wish: but approach not this tree or you [both]
run into harm and transgression. Then began Satan to whisper
suggestions to them bringing openly before their minds all their shame
that was hidden from them (before): he said "Your Lord only forbade
you this tree lest you [both] should become angels or such beings as
live for ever." And he swore to them both that he was their sincere
adviser. So by deceit he brought about their fall: when they tasted of
the tree their shame became manifest to them and they began to sew
together the leaves of the garden over their bodies. And their Lord
called unto them: "Did I not forbid you that tree and tell you that
Satan was an avowed enemy unto you?" They said: "Our Lord! We
have wronged our own souls: if you forgive us not and bestow not
upon us Your mercy we shall certainly be lost." (Allah) said: "Get you
[both] down with enmity between yourselves. On earth will be your
dwelling place and your means of livelihood for a time." He said:
"Therein shall you [both] live and therein shall you [both] die; and
from it shall you [both] be taken out (at last)." O you children of
Adam! We have bestowed raiment upon you to cover your shame as
well as to be an adornment to you but the raiment of righteousness
that is the best. Such are among the signs of Allah that they may
receive admonition! O you children of Adam! Let not Satan seduce you
in the same manner as he got your parents out of the garden stripping
them of their raiment to expose their shame: for he and his tribe
watch you from a position where you cannot see them: We made the
evil ones friends (only) to those without faith. (Qur'an 7:19 27)
On the question of pregnancy and childbirth, the Qur'an states:
And We have enjoined on the person (to be good) to his/her parents:
in travail upon travail did his/her mother bear his/her and in years
twain was his/her weaning: (hear the command) "Show gratitude to
Me and to your parents: to Me is (your final) Goal. (Qur'an 31:14)
We have enjoined on the person kindness to his/her parents: in pain
did his/her mother bear him/her and in paid did she give him/her
birth. The carrying of the (child) to his/her weaning is ( a period of)
thirty months. At length when he/she reaches the age of full strength
and attains forty years he/she says "O my Lord! Grant me that I may
be grateful for Your favor which You have bestowed upon me and upon
both my parents and that I may work righteousness such as You may
approve; and be gracious to me in my issue.Truly have I turned to You
and truly do I bow (to You) in Islam [submission]." (Qur'an 46:15)
5. Men and women have the same religious and moral duties and
responsibilities. They both face the consequences of their deeds:
And their Lord has accepted of them and answered them: "Never will I
suffer to be los the work of any of you be it male or female: you are
members of one another ..." (Qur'an 3:195)
If any do deeds of righteousness be they male or female and have
faith they will enter paradise and not the least injustice will be done to
them. (Qur'an 4:124)
For Muslim men and women and for believing men and women, for
devout men and women, for true men and women, for men and
women who are patient and constant, for men and women who
humble themselves, for men and women who give in charity, for men
and women who fast (and deny themselves), for men and women who
guard their chastity, and for men and women who engage much in
Allah's praise, for them has Allah prepared forgiveness and great
reward. (Qur'an 33:35)
One Day shall you see the believing men and the believing women how
their Light runs forward before them and by their right hands: (their
greeting will be): "Good news for you this Day! Gardens beneath which
flow rivers! To dwell therein for ever! This is indeed the highest
Achievement!" (Qur'an 57:12)
6. Nowhere dow the Qur'an state that one gender is superior to the other. Some
mistakenly translate "qiwamah" or responsibility for the family as superiority.
The Qur'an makes it clear that the sole basis for superiority of any person
over another is piety and righteousness not gender, color, or nationality:
O mankind! We created you from a single (pair) of a male and a
female and made you into nations and tribes that you may know each
other. Verily the most honored of you in the sight of Allah is (one who
is) the most righteous of you. And Allah has full knowledge and is well
acquainted (with all things). (Qur'an 49:13)
7. The absence of women as prophets or "Messengers of Allah" in prophetic

history is due to the demands and physical suffering associated with the role
of messengers and prophets and not because of any spiritual inferiority.
III. The Economic Aspect
1. The Islamic Shariiah recognizes the full property rights of women before and
after marriage. A married woman may keep her maiden name.
2. Greater financial security is assured for women. They are entitled to receive
marital gifts, to keep present and future properties and income for their own
security. No married woman is required to spend a penny from her property
and income on the household. She is entitled to full financial support during
marriage and during the waiting period ('iddah) in case of divorce. She is
also entitled to child support. Generally, a Muslim woman is guaranteed
support in all stages of her life, as a daughter, wife, mother, or sister. These
additional advantages of women over men are somewhat balanced by the
provisions of the inheritance which allow the male, in most cases, to inherit
twice as much as the female. This means that the male inherits more but is
responsible financially for other females: daughters, wives, mother, and
sister, while the female (i.e., a wife) inherits less but can keep it all for
investment and financial security without any legal obligation so spend any
part of it even for her own sustenance (food, clothing, housing, medication,
etc.).
IV. The Social Aspect
First: As a Daughter
1. The Qur'an effectively ended the cruel pre Islamic practice of female
infanticide (wa'd):
When the female (infant) buried alive is questioned for what crime she
was killed. (Qur'an 81 89)
2. The Qur'an went further to rebuke the unwelcoming attitudes among some
parents upon hearing the news of the birth of a baby girl, instead of a baby
boy:
When news is brought to one of them of (the birth of) a female (child)
his face darkens and he is filled with inward grief! With shame does he
hide himself from his people because of the bad news he has had!
Shall he retain her on (sufferance and) contempt or bury her in the
dust? Ah! what an evil (choice) they decide on! (Qur'an 16:58 59)
3. Parents are duty bound to support and show kindness and justice to their
daughters. Prophet Muhammad said:
"Whosoever has a daughter and he does not bury her alive, does not
insult her, and does not favor his son over her, Allah will enter him
into Paradise." [Ahmad]
"Whosoever supports two daughters til they mature, he and I will
come in the day of judgment as this (and he pointed with his two
fingers held together)." [Ahmad]
4. Education is not only a right but also a responsibility of all males and
females. Prophet Muhammad said:
"Seeking knowledge is mandatory for every Muslim ("Muslim" is used
here in the generic meaning which includes both males and females).
Second: As a Wife
1. Marriage in Islam is based on mutual peace, love, and compassion, not just
the satisfaction of man's needs:
And among His Signs is that He created for you mates from among
yourselves that you may well in tranquillity with them and He has put
live and mercy between your (hearts); verily in that are signs for those
who reflect. (Qur'an 30:21)
does He multiply you: there is nothing whatever like unto Him and He
is the One that hears and sees (all things). (Qur'an 42:11)
2. The female has the right to accept or reject marriage proposals. Her consent
is prerequisite to the validity of the marital contract according to the
Prophet's teaching. It follows that if by "arranged marriage" is meant
marrying the girl without her consent, then such a marriage is nullifiable is
she so wished.
"Ibn Abbas reported that a girl came to the Messenger of God,
Muhammad, and she reported that her father had forced her to marry
without her consent. The Messenger of God gave her the choice ...
(between accepting the marriage or invalidating it)." (Ahmad, Hadeeth
no. 2469). In another version, the girl said: "Actually I accept this
marriage but I wanted to let women know that parents have no right
to force a husband on them." [Ibn Majah] 3. The husband is
responsible for the maintenance, protection, and overall headship of
the family (qiwamah) within the framework of consultation and
kindness. The mutual dependency and complementary of the roles of
males and females does not mean "subservience" by either party to
the other. Prophet Muhammad helped in household chores in spite of
his busy schedule.
The mothers shall give suck to their offspring for two whole years if
the father desires to complete the term. But he shall bear the cost of
their food and clothing on equitable terms. No soul shall have a burden
laid on it greater than it can bear. No mother shall be treated unfairly
on account of her child nor father on account of his child. An heir shall
be chargeable in the same way if they both decide on weaning by
mutual consent and after due consultation there is no blame on them.
If you decide on a foster mother for your offspring there is no blame
on you provided you pay (the mother) what you offered on equitable
terms. But fear Allah and know that Allah sees well what you do.
(Qur'an 2:233)
The Qur'an urges husbands to be kind and considerate to heir wives
even if they do not like them.
O you who believe! You are forbidden to inherit women against their
will. Nor should you treat them with harshness that you may take
away part of the marital gift you have given them except where they
have been guilty of open lewdness; on the contrary live with them on
a footing of kindness and equity. If you take a dislike to them it may
be that you dislike a thing and Allah brings about though it a great
deal of good. (Qur'an 4:19)
Prophet Muhammad taught:
" I command you to be kind to women ..."
"The best of you is the best to his family (wife) ..."
Marital disputes are to be handled privately between the parties
whenever possible, in steps (without excesses or cruelty). If disputes
are not resolved then family mediation can be resorted to.
Divorce is seen as the last resort, which is permissible but not
encouraged. Under no circumstances does the Qur'an encourage, allow
or condone family violence or physical abuse and cruelty. The
maximum allowed in extreme cases is a gentle tap that does not even
leave a mark on the body while saving the marriage from collapsing.
3. Forms of marriage dissolution include mutual agreement, the husband's

initiative, the wife's initiative (if part of her marital contract, court decision on
the wife's initiative (for a cause), and the wife's initiative without a "cause"
provided that she returns the marital gift to her husband (khul' [divestiture]).
4. Priority for custody of young children (up to the age of about seven) is given
to the mother. A child later chooses between his mother and father (for
custody purposes). Custody questions are to be settled in a manner that
balances the interests of both parents and well being of the child
Question of Polygyny (Polygamy)
1. One of the common myths is to associate polygyny with Islam as if it were

introduced by Islam or is the norm according to its teachings. While no text
in the Qur'an or Sunnah states that either monogamy or polygyny is the
norm, demographic data indicates that monogamy is the norm and polygyny
is the exception. In almost all countries and on the global level the numbers
of men and women are almost even, with women's numbers slightly more
than men.
As such, it is a practical impossibility to regard polygyny as the norm
since it assumes a demographic structure of at least two thirds
females, and one third males (or 80 percent females and 20 percent
males if four wives per male is the norm!). No Islamic "norm" is based
on an impossible assumption.
2. Like many peoples and religions, however, Islam did not out law polygyny
but regulated it and restricted it. It is neither required nor encouraged, but
simply permitted and not outlawed. Edward Westermarck gives numerous
examples of the sanctioning of polygyny among Jews, Christians, and others.
3. The only passage in the Qur'an (4:3) which explicitly mentioned polygyny
and restricted its practice in terms of the number of wives permitted and the
requirement of justice between them was revealed after the Battle of Uhud in
which dozens of Muslims were martyred leaving behind widows and orphans.
This seems to indicate that the intent of its continued permissibility is to deal
with individual and collective contingencies that may arise from time to time
(i.e., imbalances between the number of males and females created by
wars). This provides a moral, practical, and humane solution to the problems
of widows and orphans who are likely to be more vulnerable in the absence
of a husband/father figure to look after their needs: financial, companions,
proper rearing, and other needs.
If you fear that you shall not be able to deal justly with the orphans
marry women of your choice two or three or four; but if you fear that
you shall not be able to deal justly (with them) then only one ...
(Qur'an 4:3)
4. All parties involved have options: to reject marriage proposals as in the case
of a proposed second wife or to seek divorce or khul' (divestiture) as in the
case of a present wife who cannot accept to live with a polygynous husband.
While the Qur'an allowed polygyny, it did not allow polyandry (multiple
husbands of the same woman). Anthropologically speaking, polyandry
is quite rare. Its practice raises thorny problems related to the lineal
identity of children, and incompatibility of polyandry with feminine
nature.
Third: As a Mother
1. Kindness to parents (especially mothers) is next to worship of Allah:

Your Lord has decreed that you worship none but Him and that you be
kind to parents. Whether one or both of them attain old age in you life
say not to them a word of contempt nor repel them but address them
in terms of honor. (Qur'an 17:23)
And We have enjoined on the human (to be good) to his/her parents:
in travail upon travail did his/her mother bear him/her and in years
twain was his/her waning: (hear the command) "Show gratitude to Me
and to your parents: to Me is (your final) destiny." (Qur'an 31:14)
2. Mothers are accorded a special place of honor in Hadeeth too:

A man came to the Prophet Muhammad asking: O Messenger of Allah,
who among the people is the most worthy of my good companionship?
The Prophet said, your mother. The man said then who is next: the
Prophet said, Your mother. The man further asked, Then who is next?
Only then did the Prophet say, Your father. (al Bukhari)
Fourth: As a Sister in Faith (Generally)
1. According to the Prophet Muhammad's saying:

"Women are but sisters (or the other half) of men (shaqa'iq).
2. Prophet Muhammad taught kindness, care, and respect of women in general:

"I commend you to be kind to women"
Fifth: Issue of Modesty and Social Interaction
1. There exists, among Muslims a big gap between the ideal of the real. Cultural
practices on both extremes do exist. Some Muslims emulate non Islamic
cultures and adopt the modes of dress, unrestricted mixing and behavior
resulting in corrupting influences of Muslims and endangering the family's
integrity and strength. On the other hand, in some Muslim cultural undue and
excessive restrictions is not seclusion are believed to be the ideal. Both
extremes seem to contradict the normative teachings of Islam and are not
consistent with the virtuous yet participative nature of the society at the time
of the Prophet Muhammad.
2. Parameters of proper modesty for males and females (dress and behavior)
are based on revelatory sources (the Qur'an and authentic Sunnah) and as
such are seen by believing men and women as divinely based guidelines with
legitimate aims, and divine wisdom behind them. They are not male imposed
or socially imposed restrictions.
3. The notion of near total seclusion of women is alien to the prophetic period.
Interpretation problems in justifying seclusion reflect, in part, cultural
influences and circumstances in different Muslim countries.
V. The Legal/Political Aspect

1. Both genders are entitled to equality before the law and courts of law. Justice
is genderless.
Most references to testimony (witness) in the Qur'an do not make any
reference to gender. Some references fully equate the testimony of
males and female.
And for those who launch a charge against their spouses and have (in
support) no evidence but their own their solitary evidence (can be
received) if they bear witness four times (with an oath) by Allah that
they are solemnly telling the truth; And the fifth (oath) (should be)
that they solemnly invoke the curse of Allah on themselves if they tell
a life. But it would avert the punishment from the wife is she bears
witness four times (with an oath) by Allah that (her husband) is telling
a lie; And the fifth (oath) should be that she solemnly invokes the
wrath of Allah on herself is (her accuser) is telling the truth. (Qur'an
24:69)
One reference in the Qur'an distinguishes between the witness of a
male and a female. It is useful to quote this reference and explain it in
its own context and in the context of other references to testimony in
the Qur'an.
O you who believe! When you deal with each other in transactions
involving future obligations in a fixed period of time reduce them to
writing. Let a scribe write down faithfully as between the parties: let
not the scribe refuse to write as Allah has taught him so let him write.
Let him who incurs the liability dictate but let him fear his Lord Allah
and not diminish aught of what he owes. If the party liable is mentally
deficient or weak or unable himself to dictate let his guardian dictate
faithfully. And get two witnesses out of your own men
and if there are not two men then a man and two women such as you
choose for witnesses so that if one of them errs the other can remind
her. The witnesses should not refuse when they are called on (for
evidence). Disdain not to reduce to writing (your contract) for a future
period whether it be small or big: it is just in the sight of Allah more
suitable as evidence and more convenient to prevent doubts among
yourselves; but if it be a transaction which you carry out on the spot
among yourselves there is no blame on you if you reduce it not to
writing. But take witnesses whenever you make a commercial
contract; and let neither scribe nor witness suffer harm. If you do
(such harm) it would be wickedness in you. So fear Allah; for it is Allah
that teaches you. And Allah is well acquainted with all things. (Qur'an
2:282)
A few comments on this text are essential in order to prevent common
misinterpretations:
a) It cannot be used as an argument that there is a general rule in the
Qur'an that the worth of a female's witness is only half the male's. This
presumed "rule" is voided by the earlier reference (24:69) which
explicitly equates the testimony of both genders in the issue at hand.
b) The context of this passage (ayah) relates to the testimony on
financial transactions which are often complex and laden with business
jargon. The passage does not make a blanket generalization which
would otherwise contradict 24:69 cited earlier.
c) The reason for variations in the number of male and female
witnesses required is given in the same passage. No reference was
made to the inferiority or superiority of one gender's witness or the
other's. The only reason given is to corroborate the female's witness
and prevent unintended errors in the perception of the business deal.
The Arabic term used in this passage (tadhilla) means literally "loses
the way," "gets confused or errs." But are females the only gender
that may err and need corroboration of their testimony. Definitely not,
and this is why the general rule of testimony in Islamic law is to have
two witnesses even if they are both males. This leaves us with only
one reasonable interpretation that in an ideal Islamic society as
envisioned by Islamic teachings the female members will give priority
to their feminine functions as wives, mothers, and pioneers of
charitable works. This emphasis, while making them more experienced
in the inner function of the family
and social life, may not give them enough exposure and experience to
business transactions and terminology, as such a typical Muslim
woman in a truly Islamic society will not normally be present when
business dealings are negotiated and if may present may not fully
understand the dealings. In such a case, corroboration by two women
witnesses helps them remind one another and as such give an
accurate account of what happened.
d) It is useful to remember that it is the duty of a fair judge, in a
particular case, to evaluate the credibility, knowledge and experience
of any witness and the specific circumstances of the case at hand.
2. The general rule in social and political life is participation and collaboration of
males and female in public affairs:
The believers, men and women, are protectors one of another; they
enjoin what is just and forbid what is evil: they observe regular
prayers, practice regular charity, and obey Allah and His apostle. On
them will Allah pour His mercy: for Allah is Exalted in power, Wise.
(Qur'an 9:71)
3. Now there is sufficient historical evidence of participation by Muslim women

in the choice of rulers, in public issues, in lawmaking, in administrative
positions, in scholarship and teaching, and even in the battlefield. Such
involvement in social and political affairs was done without losing sight of the
complementary priorities of both genders and without violating Islamic
guidelines of modesty and virtue.
4. There is no text in the Qur'an or the Sunnah that precludes women from any
position of leadership, except in leading prayer due to the format of prayer
as explained earlier and the headship of state (based on the common and
reasonable interpretation of Hadeeth).
The head of state in Islam is not a ceremonial head. He leads public
prayers in some occasions, constantly travels and negotiates with
officials of other states (who are mostly males). He may be involved in
confidential meetings with them. Such heavy involvement and its
necessary format may not be consistent with Islamic guidelines related
to the interaction between the genders and the priority of feminine
functions and their value to society. Furthermore, the conceptual and
philosophical background of the critics of this limited exclusion is that
of individualism, ego satisfaction, and the rejection of the validity of
divine guidance in favor of other man-made philosophies, values, or
"ism." The ultimate objective of a Muslim man or woman is to
selflessly serve Allah and the ummah in whatever appropriate
capacity.
Conclusion:
1. Textual injunctions on gender equity and the prophetic model are
sometimes disregarded by some if not most Muslims individually and
collectively. Revision of practices (not divine injunctions) is needed. It is not
the revelatory Qur'an and the Sunnah that need any editing or revision.
What needs to be reexamined are fallible human interpretations and
practices.
2. Diverse practice in Muslim countries often reflect cultural influences (local
or foreign), more so than the letter or spirit of the Shariiah.
3. Fortunately, there is an emerging trend for the betterment of our
understanding of gender equity, based on the Qur'an and Hadeeth, not on
alien and imported un-Islamic or non-Islamic values and not on the basis of
the existing oppressive and unjust status quo in many parts of the Muslim
world.
Endnotes
1. The term equity is used instead of the common expression 'equality"
which is sometimes mistakenly understood to mean absolute equality in
each and every detailed item of comparison rather than the overall equality.
Equity is used here to mean justice and overall equality of the totality of
rights and responsibilities of both genders. It does allow for the possibility of
variations in specific items within the overall balance and equality. It is
analogous to two persons possessing diverse currencies amounting, for each
person to the equivalence of US$1000. While each of the two persons may
possess more of one currency than the other, the total value still comes to
US$1000 in each case. It should be added that from an Islamic perspective,
the roles of men and women are complementary and cooperative rather
than competitive.
2. The Sunnah refers to the words, actions, and confirmations (consent) of
the Prophet Muhammad in matters pertaining to the meaning and practice of
Islam. Another common term which some authorities consider to be
equivalent to the Sunnah is the Hadeeth (plural: Ahadeeth) which literally
means "sayings."
3. In both Qur'anic references, 15:29 and 32:99, the Arabic terms used are
basharan and al Insaun both mean a human being or a person. English
translations do not usually convey this meaning and commonly use the
terms "man" or the pronoun" him" to refer to "person" without a particular
gender identification. Equally erroneous is the common translation of Bani
Adam into "sons of Adam" or "men" instead of a more accurate term
"children of Adam."
4. The emphasis is ours. The explanatory "both"{ was added whenever the
Our'anic Arabic text addresses Adam and Eve, like "lahoma, akala,
akhrajahoma." This was done in order to avoid misinterpreting the English
term "you" to mean an address to a singular person. For the Biblical version
of the story and its implications, see The Holy Bible, RSV, American Bible
Society, New York: 1952: Genesis, chapters 23, especially 3:6, 12, 1717;
Levi ticus 12:17; 15:19 30; and Timothy 2:11 14.
5. A common question raised in the West is whether a Muslim woman can be
ordained as a priest as more "liberal" churches do? It should be remembered
that there is no "church" or "priesthood" in Islam. The question of
"ordaining" does not arise. However, most of the common "priestly"
functions such as religious education, spiritual and social counseling are not
forbidden to Muslim women in a proper Islamic context. A woman, however,
may not lead prayers since Muslim prayers involve prostrations and body
contact. Since the prayer leader is supposed to stand in front of the
congregation and may move forward in the middle of crowded rows, it would
be both inappropriate and uncomfortable for a female to be in such a
position and prostrate, hands, knees and forehead on the ground with rows
of men behind here. A Muslim woman may be an Islamic scholar, In the
early days of Islam, there were several examples of female scholars who
taught both genders.
6. This contrast with the legal provisions in Europe which did not recognize
the right until nearly 13 centuries after Islam. "By a series of acts starting
with the Married Women's Property Act in 1879, amended in 1882 and 1997,
married women achieved the right to won property and to enter into
contracts on a par with spinsters, widows, and divorcees." See Encyclopedia
Britannica, 1968, vol. 23, p. 624.
7. This period is usually three months. If the wife is pregnant, it extends
until childbirth.
8. Ahmad Ibn Hanbal (compiler), Musnad Ibn Hanbal, Dar al Ma'arif, Cairo:
1950 and 1955, vols. 3 and 4. Hadith nos. 1957 and 2104.
9. Narrated in Al Bayhaqi and Ibn Majah, quoted in M. S. Aftfi, Al Martah wa
Huququhafi al Islam (in Arabic), Maktabat al Nahdhah, Cairo: 1988, p. 71.
10. Ibn Majah (compiler), Sunan Ibn Majah, Dar Ihya' al Kutub al Arabiyah,
Cairo: 1952, vol. 1, Hadith #1873.
11. Matn al Bukhari, op. cit., vol. 3, p. 257.
12. Riyad al Saliheen, op. cit, pp. 140.
13. In the event of a family dispute, the Qur'an exhorts the husband to treat
his wife kindly and not to overlook her positive aspects. If the problem
relates to the wife's behavior, her husband may exhort her and appeal for
reason. In most cases, this measure is likely to be sufficient. In cases where
the problem continues, the husband may express his displeasure in another
peaceful manner by sleeping in a separate bed from hers. There are cases,
however where a wife persists in deliberate mistreatment of her husband
and disregard for her marital obligations. Instead of divorce, the husband
may resort to another measure that may save the marriage, at least in some
cases. Such a measure is more accurately described as a gentle tap on the
body, but never on the face, making it more of a symbolic measure than a
punitive one. Following is the related Qur'anic text:
Men are the protectors and maintains of women because Allah has given the
one more (strength) than the other and because they support them from
their means. Therefore the righteous women are devoutly obedient and
guard in (the husband's) absence what Allah would have them guard. As to
those women on whose part you fear disloyalty and ill conduct, admonish
them (first), (next) refuse to share their beds (and last) beat them (lightly);
but if they return to obedience seek not against them means (of
annoyance): for Allah is Most High, great (above you all). (Qur'an 4:34)
Even here, that maximum measure is limited by the following:
a) It must be seen as a rare exception to the repeated exhortation of mutual
respect, kindness and good treatment discussed earlier. Based on the Qur'an
and Hadeeth, this measure may be used in the case of lewdness on the part
of the wife or extreme refraction and rejection of the husband's reasonable
requests on a consistent basis (nushuz). Even then other measures such as
exhortation should be tried first.
b) As defined by the Hadeeth, it is not permissible to strike anyone's face,
cause any bodily harm or even be harsh. What the Hadeeth qualified as
dharban ghayra mubarrih or light beating was interpreted by early jurists as
a (symbolical) use of the miswak (a small natural toothbrush).
They further qualified permissible "beating" as beating that leaves no mark
on the body. It is interesting that this latter fourteen centuries old qualifier is
the criterion used in contemporary American law to separate a light and
harmless tap or strike from "abuse" in the legal sense. This makes it clear
that even this extreme, last resort and "lesser of the two evils" measure that
may save the marriage does not meet the definitions of "physical abuse,"
"family violence," of "wife battering" in the twentieth century laws in liberal
democracies, where such extremes are commonplace that they are seen as
national concerns.
c) Permissibility of such symbolical expression of the seriousness of
continued refraction does not imply its desirability. In several Ahadeeth,
Prophet Muhammad discouraged this measure. Among his sayings: "Do not
beat the female servants of Allah," "Some (women visited my family
complaining about their husbands (beating them). These (husbands) are not
the best of you," "[Is it not a shame that], one of you beats his wife like [an
unscrupulous person] beats a slave and maybe he sleeps with her at the end
of the day." See Riyad Al Saliheen, op cit., pp. 130 140. In another Hadeeth,
the Prophet said:
"How does anyone of you beat his wife as he beats the stallion camel and
then he may embrace (sleep with) her?" Shaheeh Al Bukhari, op. cit., vol. 8,
Hadeeth no. 68, pp. 42 43.
d) True following of the Sunnah is to follow the example of the Prophet
Muhammad, who never resorted to that measure regardless of the
circumstances.
e) Islamic teachings are universal in nature. They respond to the needs and
circumstances of diverse times, cultures, and circumstances but unnecessary
in others. Some measures may work in some cases, cultures, or with certain
persons but may not be effective in others. By definition a "permissible" it is
neither required encouraged, or forbidden. In fact, it may be better to spell
out the extent of permissibility such as in the issue at hand, than leaving it
unrestricted and unqualified or ignoring it all together. In the absence of
strict qualifiers, persons may interpret the matter in their own way lending
to excesses and real abuse.
f) Any excess, cruelty, family violence, or abuse committed by any "Muslim"
can never be traced, honestly, to any revelatory text (Qur'an and Hadeeth).
Such excesses and violations are to be blamed on the person(s) himself as it
shows that he is paying lip service to Islamic teachings and injunctions and
is failing to follow the true sunnah of the Prophet.
14. For more details on marriage dissolution and custody of children, see A.
Abd al Ati, Family Structure in Islam, Indianapolis: American Trust
Publications, 1977, pp. 217 49.
15. For more details on the issue of polygyny, see Jamal A. Badawi,
Polygyny in Islamic Law, Plainfield, IN: American Trust Publications, also
Islamic Teachings (audio series), Islamic Information Foundation, 1982,
album IV.
16. See for example, Edward A. Westermarck, The History of Human
Marriage, 4th ed. (London: Macmlllan, 1925), vol 3, pp. 42 43; also
Encyclopedia BibRca, Rev. T. K. Cheyene and J. S. Black, eds.) (London:
Macmillan, 1925), vol. 3, p 2946.
17. A. M. B. 1. Al Bukhari (compiler) Matn al Bukhari, Cairo: Dar Ihya al
Kutub al Arabiyah, n.d., vol. 3 Kitab al Adab, p. 47. Translated by the
author. For a similar English translation of this Hadeeth, see Sahih al Bukhari
translated by M. M. Khan Maktabat al Riyadh al Hadeethah, Riyadh, Saudi
Arabia, i982, colt 8, the Book of ai Adab, Hadeeth no. 2, p. 2.
18. Narrated by Aisha, collected by Ibn Asakir in Silsilat Kunaz al Sunnah 1,
Al./ami Al Sagheer, Ist ed. 1410 AH. A computer program.
19. Riyadh al Saliheen, op. cit., p. 139.
The Voice of a Woman in Islam

by Yusuf al-Qaradawi
Many Muslims have adopted the Judeo-Christian ethic which views women as
the source of human tragedy because of her alleged biblical role as the
temptress who seduced Adam into disobedience to his Lord. By tempting
her husband to eat the forbidden fruit, she not only defied Allah, but caused
humankind's expulsion from Paradise, thus instigating all temporal human
suffering. Those misogynists who support this Biblical myth, dredge from the
archives of psuedo-Islamic literature such as false and weak hadiths.
This Old Testament myth is a widely circulated belief in the Islamic
community despite the fact that Allah in the Qur'an stresses that it was
Adam who was solely responsible for his mistake. In 20:115 it is stated: "We
had already, beforehand, taken the convenant of Adam, but he forgot; and
we found on his part no firm resolve." Verse 20:121-122 continues: "In
result, they both ate of the tree...thus did Adam disobey His Lord, and fell
into error. But his Lord chose for him (From His Grace): He turned to him,
and gave him guidance."
Therefore, there is nothing in Islamic doctrine or in the Qur'an which holds
women responsible for Adam's expulsion from paradise or the consequent
misery of humankind. However, misogyny abounds in the pronouncements
of many Islamic "scholars" and "imams."
The result of such misinterpretation of hadiths and spreading negativity is
that entire societies have mistreated their female members despite the fact
that Islam has honored and empowered the woman in all spheres of life.
The woman in Islamic law is equal to her male counterpart. She is as liable
for her actions as a male is liable. Her testimony is demanded and valid in
court. Her opinions are sought and acted upon. Contrary to the pseudo
hadith: "Consult women and do the opposite," the Prophet (SAW) consulted
his wife, Um Salama on one of the most important issues to the Muslim
community. Such references to the Prophet's positive attitudes toward
women disprove the one hadith falsely attributed to Ali bin Abi Talib: "The
woman is all evil, and the greatest evil about her is that man cannot do
without her."
The promotion of such negativity against women has led many "scholars"
and "imams" to make the unsubstantiated ruling about female speech. They
claim that women should lower their voice to whispers or even silence
except when she speaks to her husband, her guardian or other females. The
female act of communication has become to some a source of temptation
and allurement to the male.
The Qur'an, however, specifically mentions that those seeking information
from the Prophet's wives were to address them from behind a screen
(33:53). Since questions require an answer, the Mothers of the Believers
offered fatwas to those who asked and narrated hadiths to whomever wished
to transmit them.
Furthermore, women were accustomed to question the Prophet (SAW) while
men were present. Neither were they embarassed to have their voices
heard nor did the Prophet prevent their inquires. Even in the case of Omar
when he was challenged by a woman during his khutba on the minbar, he
did not deny her. Rather, he admitted that she was right and he was wrong
and said: "Everybody is more knowledgeable than Omar."
Another Qur'anic example of a woman speaking publicly is that the daughter
of the Shaykh mentioned in the Qur'an in 28:23. Furthermore, the Qur'an
narrates the coversation between Sulayman and the Queen of Sheba as well
as between her and her subjects. All of these examples support the fatwa
that women are allowed to voice their opinion publicly for whatever has been
prescribed to those before us is prescribed to us, unless it was unanimously
rejected by Islamic doctrine.
Thus, the only prohibition is the female talking softly and flirting in a manner
meant to excite and tempt the male. This is expressed in the Qur'an as
complacent speech which Allah mentions in 33:32: "O consorts of the
Prophet! Ye are not like any of the other women: If ye do fear Allah, be not
too complaisance of speech, lest one in whose heart is a disease should be
moved with desire: but speak ye a speech that is just."
What is prohibited then is alluring speech which entices those whose
diseased hearts may be moved with desire and that is not to say that all
conversation with women is prohibited for Allah completes the verse: "...but
speak ye a speech that is just." (33:32)
Finding excuses to silence women is just one of the injustices certain
scholars and imams attempt to inflict upon women. They point to such
hadiths as narrated by Bukhari about the Prophet which says: "I have not
left a greater harm to men than women." They assume that the harm
implies that women are an evil curse to be endured just as one must endure
poverty, famine, disease, death and fear. These "scholars" ignore the fact
that man is tried more by his blessings than by his tragedies.
And Allah says: "And We test you by evil and by good way of trial." (21:35).
To support this argument Allah says in the Qur'an that two of the most
appreciated blessings of life, wealth and children, are trials. Allah says:
"And know ye that your posessions and your progeny are but a trial." (Anfal
28) A woman, despite the blessings she bestows on her relations, can also
be a trial for she may distract a man from his duty toward Allah. Thus, Allah
creates awareness how blessings can be misguided so that they become
curses. Men can use their spouses as an excuse for not performing jihad or
for eschewing sacrafice for the compiling of wealth. Allah in the Qur'an
warns: "Truly among your wives and children are enemies for you." (64:14)
The warning is the same as for the blessings of abundant welath and
offspring (63:9). In addition, the sahih hadith says: "By Allah I don't fear for
you poverty, but I fear that the world would be abundant for you as it has
been for those before you so you compete for it as they have competed for
it, so it destroys you as it has destroyed them." (Agreed upon) This hadith
does not mean that the Prophet (SAW) encouraged poverty.
Poverty is a curse from which the Prophet sought refuge from Allah. He did
not mean for his Ummah to be bereft of wealth and abundance for he said:
"The best of the good wealth is for the pious person." (narrated by ahmed
and Al-Hakam) Women are also a gift for the pious person for the Qur'an
mentions the Muslim men and women (the Muslimat), the believing men
(Mumins) and women Muminat as aids and comforts for each other here and
in the hereafter. The Prophet did not condemn the blessings Allah provided
for his Ummah. Rather the Prophet wished to guide the Muslims and his
Ummah away from the slippery slope whose bottomless pit is a mire of
callousness and desire.
Women's Dignity, Rights and Empowerment

in Islam
We hear a lot of things about women's position and rights in the society. Some of
the words that are expressed about the realization of women's rights are
acceptable. Again there is room for difference of opinion on some points. It is
imperative to establish the rights of men and women fully, because the society is
moving forward everyday. So not only men or women but also the rights of every
individual must be established.
The society has made significant progress during the last 50 years. The
women like men have come forward though not equally. We have left far
behind the society we had during Begum Rokeya`s- time. She saw that the
girls had no opportunity for education. You ladies, perhaps could not have
received education if Begum Rokeya was not born at that time & not taken
bold initiative for female education. Of course, Almighty Allah would have
sent some other woman to this earth who could do the job. However, I do not
want to digress from the point because I must finish the discussion within the
allotted time.
In the whole world especially in our country the oppression that is being
unleashed on the people particularly on the women has a foundation. The
oppression is not descending from the sky. The ideological foundation for the
persecution on women by men and at times by women themselves is:
generally the people believe, particularly the men believe that women are
inferior to men having low quality & below standard. The belief also exists in
the women. This belief originates from some erroneous ideas among the
people. And on this belief is standing firmly the whole edifice of oppression,
deprivation and disrespect towards women.
If we want to eliminate persecution on women from our country, it cannot be
done excluding Islam. I want to make it very clear that in a country like ours
where ninety percent people are Muslims, we would not be able to move
without Islam. Those who have revolted against Islam could not last long and
are not able to sustain. A women revolted - I would not name her - her end
was not good. She ended in a miserable condition. With all humility I would
like to say that if we can move ahead remaining within the framework of
Islam then it will be good in all respects. I firmly believe that there is such a
framework in Islam, which can ensure the progress of women.
I am not in favour of distorting Islam nor I am inclined to giving temporary

interpretation of Islam. In true sense, Islam has empowered women and
Islam has upheld respect for women. Islam has ensured rights for women.
But before enlarging on this I would mention what could be the basis or
"ideological foundation" on which the fundamental equality of men & women
depends? God has not created all human beings with similar appearance.
Two persons are never equal in every dot or in all respects. One person is
different from another in terms of his weight, height, colour, education etc.
But basically every human being is equal - equal to Almighty Allah. I would
like to present four arguments to prove this:
1. Allah has made this thing very clear that real human being is 'Ruh`. We
call it soul or spirit. Real man is not body. The body will perish in the grave.
Those of us who believe in Islam know that fundamental element of man is
the 'Ruh`. Allah created all human beings and their 'Ruhs` (spirit) at the
same time, created them the same way and asked them a single question.
All men and women gave the same answer. I quote a verse (172) from Sura
Aàraf:
When thy Lord drew forth From the children of Adam From their loins- Their
descendants and made them. Testify concerning them (saying) "Am I not
your Lord (Who cherishes & sustains you)? They said: "yea! We do testify!
It means all men and women reached an agreement on one point that is,
"You are our Lord and we shall obey you. Here no separate agreements were
made with men or with women. So, the first word about our ideological
foundation is that the real human being is the Ruh (spirit) and all spirits are
equal. Any other inequality or dissimilarity if any is insignificant or very small
compared to the equality of human soul or spirit.
It means that the spiritual personalities of a human being are the same and
so as 'human beings` all are equal. This is the fundamental foundation of
equality among men and women.
2. We, men, boast of our physical structure as superior to that of the women
and think that perhaps God has created us better comparatively. But God
has made one thing very clear in the Holy Quran that there is, of course,
some difference between all human beings but everyone is "the first class"
and superb. Those of you who offer prayer regularly know a particular verse
from 'Sura Tin' (Sura or chapter no 95 of the Quran, verse 4) which says: "we
have indeed created the human beings in the best of moulds." It did not say
that the men only were created in the best of moulds. It means there is
difference in our appearances and in our structures. But everyone is
excellent and first class.
So, to establish the fundamental equality of men and women or to launch a

new movement for women or the humanity at large the men should not say
that the structures of women are bad. Allah would not like that. Those who
are believers must not say this. This is the second proof of basic equality
among men and women. I say "basic" because there would remain some
minor differences between men and women.
3. Allah clearly says: all people belong to one family- the family Adam and
Eve. In Sura Nisa Allah says:
"O mankind! Revere Your Guardian- Lord, Who created you? >From a single
person, Created, of like nature, His mate, and from them twain Scattered
(like seeds) Countless men and women:"
It proves that we belong to a single family. We are children of Adam. In the

Holy Quran Allah addressed the human beings as, "children of Adam" many
times. As the children and parents together make a family, similarly all
human beings together make a family in the eyes of Islam.
The family of human beings is above all other families. It means that our
fundamental honour and dignity is the same. There may be some differences
on minor issues but worldly dignity is not real dignity. As in legal terms, all
human beings are equal in the eyes of the law, so all are equal in the eyes of
Allah. The only foundation of respect to Allah is 'Taqwa` (obedience to Him).
Allah has never said that men are more respectful to Him or women are less
respectful to Him. He says, only who obeys Him is respectful to Him amongst
you.
If this were the foundation of respect to Allah, then does the difference
created by men matter at all? Allah says, He never differentiates between
person to person except on Taqwa or piety or obedient to Him. So we are
children of one family and our fundamental dignity is the same. In Sura
Huzurat, (Ayat 13) Allah says: "O mankind! We created You from a single
(pair) Of a male and a female, And made you into Nations and tribes, that Ye
may know each other (Not that yea may despise (Each other). Verily The
most honoured of you In the sight of Allah Is (the person who is) the most
Righteous of you.
And Allah has full knowledge And is well acquainted (with all things)."
Allah says in a verse of Surah Al Nisa (Chapter 4 of the Quran):
"Fear Allah through whom Yea demand your mutual (rights) And (revere) the
wombs (That bore you): for Allah Ever watches over you."
Allah says clearly, "revere the wombs". While commenting on this verse a
famous religious scholar of Egypt, Syed Qutb writes: These words were never
written in any other literature in the world prior to The Holy Quran. He said in
a detailed commentary of this verse that all human beings are essentially
equal. But among them, women are superior in a sense. Because by revering
the wombs Allah has in fact asked us to respect mothers and respect the
women as a whole. So this proves the equality of our basic social status. This
is the third proof of our new ideological foundation. (Sura Nisa - Tafsir: Syed
Qutb).
4. At the time of creation Allah told the human beings, all of you are
'Khalifa`( caliph- representatives). He said, "I will send into the world my
representatives." Allah did not say that He was sending women or men. He
did not even say that He was sending human beings. He told that He was
sending representatives.
He sent human beings but called them His representatives. He termed
human beings as His Khalifa meaning representatives. The entire human
race is His representatives irrespective of the sex. But it is true that if we
commit sin, commit crime, commit murder, carry out oppression, and lose
our faith in Him then we will lose our status as Khalifa. But basically we all
are the representatives of Allah. (Quran 2:30; 35:39)
All empowerment lies with this status as Khalifa. No one can perform one's
responsibility without power or authority. To perform one's responsibility as
Khalifa each man or woman must have some authority.
The foundation of woman's empowerment lies with this Khilafat. Not only
women; in Khelafat lies the foundation of empowerment of all women, men,
poor, and weak. So this is the 4th proof of fundamental equality between a
man and a women. Islam wants that every man, every woman, every person
should be empowered. But if the women are deprived now they should be
empowered first. If the men are deprived any time they should be
empowered. We must think first about anyone who is deprived; at present
we must put in efforts for the empowerment of women.
Today in your discussions you talked about what should be real work of a
woman. Some of you questioned whether they should only stay at home? If
any woman freely decides to stay at home, she has rights to do it. It is
applicable to a man also. But Almighty Allah has never said anywhere that
women will have to stay at home and will not be able to do anything outside.
On the contrary, Allah has given the same basic responsibility to women as
well as men. In the 71st verse of Sura Tawba (chapter 9 of the Quran) Allah
says, men & women have 6 (six) responsibilities:
"The believers, men And women, are protectors One of another: They uphold
What is just, and forbid? What is evil: they observe Regular prayers, practice
Regular charity and obey Allah and His Messenger."
So the 6 responsibilities are:
1. They uphold what is just

2. They forbid what is evil
3. They observe regular prayers.
4. Practice regular charity
5. Obey Allah
6. Obey His Messenger.
This verse says, Men and women are protectors ('Wali' or guardians) of one
another. Some people say that women cannot be guardians but Allah says
that the women can be guardians. Through these instructions Allah has
recognized the participation of women in all good activities. Allah has
declared that He will shower blessings on those who will perform these
responsibilities. After studying several Tafsirs (commentaries) of the Holy
Quran and as a person having full faith in the Holy Book and the Sunnah of
Rasul (the way the prophet lived his life), I express my firm belief that all
men & women are equal so far as these 6 responsibilities are concerned. All
activities including politics & social work fall within its purview.
I feel that we have made ourselves busy with petty things leaving aside the
essence of Islam. We are depending on many books written by men. It seems
to me that we are not paying that much importance to the original Book of
Allah in comparison to other books.
Lastly, I would like to say that if you learn Islam through others you would
not learn the true spirit of Islam. You will have to study a few commentaries
of the Quran yourself. Some try to insert their own opinions in the
translations. So if you study 5 or 6 translation in the Quran you will be able to
understand where people's opinions have found their place in the Quran and
what are the words of Allah. Study of several commentaries will help you
understand which interpretations are correct. We do not have well known
women commentators of the Holy Book. It is their failure. There would not
have been gender bias if they could play their part effectively. However,
there are some commentaries of the Holy Quran, which are free from gender
bias: for example "The Message of Quran by Mohammad Asad. I would like to
conclude here.
Shah Abul Hannan, a former secretary to the Government of Bangladesh,

made this presentation at the 23rd Animators Training held in Dhaka
especially for the women. Translation into English by Mr. Rafiqul Islam
Sarkar.
WOMEN IN ISLAM
by Aicha Elshabini-Riad
Women in Islam is a multidimensional and a complex topic. The teachings of
Islam are based essentially on the Qur'an (God's revelation) and Hadeeth
( elaboration by Prophet Mohammad, peace be upon him ). The Qur'an and
the Hadeeth, when properly and unbiasedly understood, provide the basic
source for any position or view which is attributed to Islam.
I am not an expert or a religious scholar. I am speaking from my personal
convictions and experience as a mother, a wife, and an educator.
It is rare in the west that someone should ask the Muslim woman about her
opinion, experiences and feelings as she fulfills her role in life. We as human
beings unfortunately tend to misjudge, that which does not meet our
standards or that which we do nor understand, yet do we ever stop to think
how superficial that may be? Do we ever think to look deeper and learn, and
then judge? To the common lay person an uncut diamond may look like a
stone, but to a jeweler it is a treasure beyond comparison. Such is Islam to
a Muslim and all who care to learn. To set the stage for the subject of Islam
and Women, we have to understand two basic Islamic concepts. These two
concepts are:
Islam is not a common religion in the popular understanding of most people,

rather Islam is a way of life to be practiced constantly and be reflected in all of
our actions. The basis of these actions is the strong belief in God's commands in
total obedience to his role. What our Creator commands is not for us, as his
creations, to question. If one thinks of these commands, one does not find them
insulting to his or her intelligence but rather they serve to enrich and improve
humanity's well being. In this context, a Muslim man or woman understands their
mutual role in society.
The status of woman in Islam is something unique, something novel, something

that has no similarity in any other system.
Islam acknowledges women as equal partners to men in fulfilling God's

purpose for our existence on this earth. Men and women are to complement
each other and not to compete with each other. According to Islam, all and
each one of us, men and women should only have one reason for doing
whatever we do, and that reason is satisfied by God. In Islam, men and
women are equal, yet they are not identical. It therefore follows that the
rights and responsibilities of a woman are equal to those of a man but they
are not necessarily identical. Equality and sameness are two quite different
things. People are not created identical but they are created equal.
Contrary to popular misconception, Islam has long recognized that man and
woman are equal, equal spiritually and mentally. It is to Islam's credit that it
does not commit hypocrisy and claim them to be identical.
The fact that Islam gives the woman equal rights, but recognizes her as an
individual, shows that it takes her into consideration, acknowledges her, and
recognizes her independent personality.
What Islam has established for woman is that which suits her nature, gives
her full security and protects her against disgraceful circumstances and
uncertain channels of life.
God says in His Holy Book Qur'an: "Every soul will be (held) in pledge for its
deeds" (Qur'an 74:38). The Qur'an also states that: "... So their Lord
accepted their prayers, (saying): I will not suffer to be lost the work of any
of you whether male or female. You proceed one from another..." (Qur'an
3:195).
The woman is recognized by Islam as a full and equal partner of man in the
procreation of humankind. He is the father; she is the mother and both are
essential for life. Islam acknowledges and emphasizes the importance of the
woman's role in her family and society as a mother. A mother whose
function can not be substituted by any others. The man's function as a
father can not be substituted by the woman. Both are there to complement
each other. Islam respects both functions and calls on both men and women
to fulfill their responsibilities in this regard. Neither men nor women should
degrade the other party's function or look down to his or her own.
Among the greatest gifts God has blessed womankind with is the
motherhood. God says in His Holy Book, the Qur'an: "Oh Mankind! Obey
your Lord, who created you from a single person and creates from like
nature his mate, and from both derived countless men and women. Obey
God, whom you turn to and obey the wombs that bore you, for God is ever-
watching you."
In a single verse God establishes the status and high rank of women as
demonstrated by the most beautiful and incomparable role of mother in
Islam, the place of the woman in general and mother in particular has no
equal.
Like everything, Islam seeks to accomplish in our lives, it harmonizes
between the physical, the mental and the spiritual. In other words, it treats
the individual as a total being and does not ignore part. That is why rather
than push man or woman to the denial of their nature, it instructs them to
take advantage, to nurture and develop what God has given to them.
God says in His Holy Book, the Qur'an: "Your Lord has decreed that you
worship none save Him, and that you be kind to your parents..." (Qur'an
17:23). Moreover, the Qur'an has a special recommendation for the good
treatment of mothers: "And we have enjoined upon man (to be good) to his
parents: His mother bears him in weakness upon weakness..." (Qur'an
31:14).
The Prophet Mohammad (peace be upon him) said: "Everyone of you is
shepherd and everyone of you shall be asked about those under his (or her)
guard. The king is a shepherd and shall be asked about his subjects, the
man is shepherd and shall be asked about his family, and the woman is a
shepherdess in the house of her husband and shall be asked about those
under care."
In fact, the role of mother is given a higher position in importance, in
responsibility and in respect, as illustrated in the following story bout the
Prophet Mohammad (peace be upon him). A man came to the Prophet
(peace be upon him) and asked him to advise him on whom should he takes
into consideration. The Prophet (peace be upon him) answered "your
mother", the man said "then", the Prophet (peace be upon him) said "your
father". and yet again the Prophet (peace be upon him) said: "Paradise lies
at the feet of mothers" which means that the woman's role as a mother is a
sacred one. Islam has emphasized this fact in great fashion by instructing us
to respect and care for our mothers for more than what we do for our
fathers.
In the light of the important function that mother serves, Islam has gone so
far as to advice parents to pay extra attention and devote time and efforts in
the up bringing and raising of their daughters. The Prophet Mohammad
(peace be upon him) said: "Whoever takes care of three daughters will enter
Paradise." So a man asked how about two daughters, the Prophet (peace be
upon him) said "he, too, will enter Paradise," so the man asked how about
one daughter and the Prophet (peace be upon him) answered "he, too, will
enter paradise."
The role of mother in Islam is no less in importance or social impact than the
role of man as protector and provider. Islam has given the wife all what it
takes to protect her rights and to create the adequate environment for a
healthy family life. In an Islamic family, the man is responsible for
supporting his family's needs. If the wife has income, it is her privilege to
decide what to do with it independently. Family related decisions are to be
discussed jointly.
The role of mother in Islam is so majestic and noble that women in general
and mother in particular have been called the "School of the Nation". From
our mothers new generations have sprung forth and from today's mothers,
new generations will spring forth again. A blessing and trust given to us to
nurture, protect, guide and educate. The first seeds of knowledge and the
first knowledge of God is planted and developed at home under the guidance
and loving care of the mother. It is a role God has gifted her with the
capabilities to accomplish, the sense of giving and ability to inspire a sense
of belonging.
The torn families of our days, and our social problems can be all avoided if
the motherhood is taken as a serious responsibility and a respectable duty.
Islam does not ask of the women to stay at home, have children, and be
limited to raising them. Islam emphasizes the importance of this task to a
healthy family and a healthy society. If a woman is capable of taking other
tasks of life without abandoning such an important and vital task, she is not
only allowed to do so, but she is requested to do just that. Every person,
man or a woman, is requested to do his utmost to be a positive productive
useful member of his or her own society. Talking about my personal
experience, God have blessed me with the ability to be a caring mother of
two young boys, a house wife with a content husband, and a productive
career as a university professor. I do all that because God gave me the
capability to do them all, not because I am in competition with any body,
and not to prove that women can do it. I do it all in the way of God, and for
his sake. There is no feeling of being threatened or a need to compete. Each
man and woman recognizes their capabilities and their limitations.
So much can be said about the rights of women in Islam. But to be fair, we
would not be talking about that if it were not for the other societies which
denied women of their fair share of rights and equality. Islam gives women
this fair share. It is all logical and obvious, and can be summarized on one
simple statement. In the words of Prophet Mohammad (peace be upon him)
"Women are men's mothers, sisters, and daughters".
The Rights of Children

From Dr Abd Al-Razzaq Hussein's Islam And Children
Adapted by Sumayyah Bint Joan
There are very few things in life which produce as much joy and excitement,
along with equally as much fear and anxiety, as the news of the arrival of
your first child. With this news, couples happily begin to contemplate their
new baby's sex, start picking out names, and the spare room that used to be
the den is quickly transformed with gallons of blue or pink paint and all
things cute and cuddly. During this time, couples reassess their lives and try
to answer what they feel are the most relevant questions: Will the mother
keep working after the baby is born? Will she breastfeed or use a bottle? Is
there enough savings to adequately provide for another person? The
questions that very few of us ask however, are often the most compelling.
What rights does this child have on us as parents? What responsibilities has
Allah placed on us by putting this child in our care? These are all questions
that we as Muslim parents, or parents-to-be, must not only ask ourselves,
but we must also be thoroughly familiar with the answers, if we are to rear a
generation of Muslims who are better than ourselves. One might ask where
and when does a child's rights begin? Well, according to the Prophet,
sallallaahu alaye wa sallam, it begins before the beginning. The Prophet
cautioned us and called upon us to be careful in our choice for spouses. He is
reported to have said, "Make a good choice for (your) spouse, for blood will
tell." (Ibn Majah) This highlights the effect of heredity on the infant. It is
therefore the right of the child to have parents who are loving and of noble
and righteous character. After conception, the rights that Allah has
prescribed for unborn children, in the Islamic Law, then take effect.
Rights of the Unborn

In the United States where human, civil and moral rights are debated hourly,
the rights of the unborn are often neglected and ignored. In the past 25
years since the Supreme Court decision in Roe vs. Wade, more than 35
million unborn children have been slaughtered in the industry's abortion
mills. In an authentic hadeeth, the Prophet, Sallallaahu alayhe wa sallam,
told us that human life begins after 120 days from conception. It is human
life that is being extinguished, not some meaningless blob of tissue. The
rights of the unborn in Islamic Law protects the unborn from the ignorant,
misguided and those ungrateful of their Lord's bounties.
Allah, subhanahu wa ta'ala, describes the persons who kill their children,
prior or after their birth, as lost, misguided and ignorant, "Indeed lost are
they who have killed their children, from folly without knowledge and have
forbidden that which Allah has provided for them, inventing a lie against
Allah. They have indeed gone astray and were not guided." (6:140) This is a
clear prohibition against aborting the unborn. The person who aborts a child
is punishable by paying diyah reparation, known as algharrah. Based on
person's understanding and assessment, some may accept varied reasons
for aborting the unborn. However, Allah the All-Mighty has decreed, with His
prior Knowledge, the right of the infant for sustenance and He guaranteed
such rights. As a result, He soothes the hearts of those who may fear
poverty, "Andkill not your children for fear of poverty. We provide for them
and for you. Surely, the killing of them is a great sin." (17:31) The father
should also do everything in his power to preserve the life of the unborn
child, Allah says, "And if they are pregnant, then spend on them till they
deliver." (65:6)
The father is responsible for providing for the women that bears and delivers
his child. This may provide more incentive for the mother to take the utmost
care. "The father of the child shall bear the cost of the mother's food and
clothing on a reasonable basis." (2:233).
However, it does not stop here, Islamic Law further commands the guardian
to take into consideration the condition of the pregnant woman, her affairs
and mental frame of mind. Doing well to the expectant woman is mandatory,
even if the mother had committed a crime or an offense against society. Her
guardian should delay her punishment so that the unborn will not be
affected by it. The evidence used here is the order given by the Prophet to
the guardian of the woman, who had committed adultery and was pregnant,
to be kind with her. (Ibn Majah) The story of Al-Ghamediyyah is popular and
well known. It was narrated that a woman from the tribe of Ghaamed came
to the Prophet, sallallaahu alayhe wa sallam, and said, "I have committed
adultery," He said, "Return," so she went back. The following day she came
back to him and said, "You may want me to return as you did with Maa'iz Bin
Malik, but by Allah, I am pregnant!" He told her, "Return until you deliver,"
so she left. When she had delivered, she brought the baby to the Prophet
and said, "Here I am with what I have delivered." He said, "Return and
breastfeed him until fitaam (weaning or the end of the nursing period and
beginning of eating regular food)." When the time of fitaam came, she went
to the Prophet sallallaahu alayhe wa sallam with the child, who was eating
something from his hand. The Prophet sallallaahu alayhe wa sallam then
gave the child to one of the Muslim men. He commanded a hole to be made
for her and then ordered that she be stoned. (Abu Dawoud) It is clear from
this hadeeth how careful and concerned Islam is about the life of the infant
and the need for giving the infant his complete rights, such that he may be
capable of depending on himself even if he came to this life through
illegitimate means. The manner of the child's birth is not his sin, "And no
soul shall bear the sin of another." (35:18) No matter how a child comes into
the world, all of his rights, including rights for sustenance remain valid under
Islamic Law.
Nurturing the Newborn

For women in the West, the means of providing sustenance for their
newborns has been heatedly debated for many years. The investigation into
breastfeeding over bottle-feeding however, has yielded some new
information lately. Recent studies have shown that breastfed babies are
healthier, develop more quickly and are smarter on the average, than babies
who are bottle-fed. Under Islamic Law, Allah Has made breastfeeding an
established right of the child, whether his mother or someone else provides
it. The noble verses that have guaranteed this right to the infant also
guaranteed the rights of all parties involved so that none will be harmed.
The breastfeeding process has different sides to be considered:
1. The rights of the child:
Islam has prescribed breast-feeding and commanded that children be
breastfed until they attain their full power and strength, for breastfeeding
has a great impact on the growth and development of the child. Allah, has
told us about the required time period for breastfeeding. He says, "The
mothers shall give such to their children for two whole years." (2:233) "And
the bearing of him and the weaning of him is thirty months." (46:15)
2. The rights of the mother:
If the mother is not divorced, she should breastfeed her child as a religious
obligation and not because she is the natural mother. If she is divorced then
nursing is dealt with as nafaqah (financial support). This is established within
the shari'ah. The nafaqah of the child is the responsibility of the father. The
father has to give the mother compensation for her nursing. If she refuses to
nurse then it becomes incumbent upon the father to find and hire a wet-
nurse for the child. However, scholars have made it mandatory upon the
mother to nurse her child if the child refuses to be nursed by other than his
mother or if the father doesn't have sufficient funds to hire a wet-nurse. The
Qur'an has satisfactorily detailed the rights of nursing for us, "The mothers
shall give suck to their children for two whole years, (that is) for those
(parents) who desire to complete the term of suckling, but the father of the
child shall bear the cost of the mother's food and clothing on a reasonable
basis. No person shall have a burden laid on him greater than he can bear.
No mother shall be treated unfairly on account of her child, or father on
account of his child. And on the (father's) heir is incumbent the like of that
(which was incumbent on the father). If they both decide on weaning by
mutual consent and after due consultation, there is no sin on them. And if
you decide on a wet-nurse for your children, there is no sin on you, provided
you pay what you agreed on a reasonable basis. And fear Allah and know
that Allah is All-Seer or what you do." (2:223) "And if they are pregnant,
then spend on them till they deliver. Then if they give suck to the children
for you, give them their due payment and let each of you accept the advice
of the other in a just way. But if you make difficulties for one another, then
some other woman may give suck for him." (65:6)
3. The rights of others:
The wet-nurse has rights as well, for there are relationships established as a
result of the child being nursed by her. Aisha said that the Prophet,
sallallaahu alayhe wa sallam, said, "The effect of nursing is like giving birth
in regards to relationships such as marriage, etc." (Al-Mughni).
General rights
Another fundamental right of children under Islamic Law, is the giving of
good names, Man-made laws have not given much consideration to this
matter, almost as if it is considered insignificant. Islam, on the other hand,
has intervened in naming the child and encourages parents to choose good
names for their children. Islam recognizes that the name has an effect on
the person since it is associated with him throughout his life and after his
death. Additionally, his children and descendants will carry the name. It has
become common to see and hear about numerous cases where people apply
to the courts to change their proper names (i.e., first names) or surnames
(i.e., last names) because of an inherent dissatisfaction with these names or
an embarrassment to be associated with a particular name. The Prophet,
sallallaahu alayhe wa sallam, has told us to select good names. He is
reported to have said, "You'll be called on the Day of Resurrection by your
names and your father's names, so choose good names for yourselves."
(Abu-Dawud) He also told us about some of the best names, "The dearest
names to Allah are Abdullah and Abdur-Rahman." (Muslim) Abu-Musa said,
"I was blessed with a son so I brought him to the Prophet and he named him
Ibrahim." (Bukhari).
The Prophet, sallallaahu alayhe wa sallam, also used to change some names
for better ones. He changed, for example, Harb (war) to Silm (peace), an
area called Afirah (dirty) to Khadhihra (green) amongst many others. (Abu
Dawud) Nicknaming a child is also known and accepted within Islam. By
doing this, they are not thought of as small and weak since they have
nicknames just like adults. Anas narrated that, "The Prophet was the best
amongst people in conduct and manners. I had a brother called Abu-Umair
and he was weaned at that time. When the Prophet would see him, he used
to say, 'Abu-Umair what has done the nughair (an Arabian bird)?" (Muslim)
This hadeeth indicates not only the permissibility of nicknaming children, but
also of playing and joking with them. Apart from having a home that is full
of love and acceptance, children need and have the right to be from all kinds
of harm, no matter where it comes from. Many of us may feel that we
provide adequate protection for our children by living in nice neighbourhoods
and sending them to 'good' schools, yet we continually expose them to the
dangers, violence and filth that the TV offer. In a February 1996 Media
Research Center study which analyzed shows from a four-week period in the
fall of 1995, they found 72 obscenities in 117 hours of 8-to-9p.m
programming. Moreover, portrayals of sex outside of marriage, - premarital,
extramarital and homosexual - outnumbered those of sex within it by 8 to 1.
By willingly exposing our children to this, we fail to protect their minds,
hearts and souls from the seduction and glamour of evil. Islam commands
us to protect the lives of children, whether Muslims or not.
Islam prohibits the killing of women and children. Ibn Umar narrated that a
woman was found killed in one of the battles during the time of the Prophet,
sallallaahu alayhe wa sallam, so the Prophet prohibited the killing of women
and children. (Bukhari) The prohibition of killing the children is also shown in
the story of the Prophet's companion Khabib Bin Adiy when he got captured
by Bannu Al-Harith, on the battle of the Day of Ar-Raji'a and they decided to
kill him in place of Al-Harith, whom he killed, in the battle of Badr. He was
imprisoned at Al-Harith's house. And when he asked the woman of the house
for a razor to make Istihdad (shaving the pubic area). The woman said, "I
was not paying attention when suddenly one of my children approached him
and sat on his thigh." When I saw that, I was terrified, and he saw that in
me. So he said, "Do you fear that I would kill him? I would not do such a
thing." (Bukhari) This noble stance and other references reveal how Muslims
and Islam are very concerned with the preservation of the life of children as
well as being merciful and kind to them.
Additionally, Islam has organised the process of protecting foundlings from
loss and going astray. Islam has made it mandatory upon the person who
finds the foundling to shelter and protect it. If a child is found in a place
where he may die if he stays there, then the person who finds him and
leaves him unprotected will be held accountable and tried for murder. The
finder is entitled to the right to keep the foundling more than others as long
as he doesn't abuse him. If money is found with the child, then it can be
spent on the child with permission from a judge. The finder has the right to
the child's money unless someone else claims the possession of the money.
If there is no one capable of sponsoring the foundling, then the government
is responsible for doing so.
In these days of test-tube babies and children of fathers known by numbers,
instead of names, ultimately these children are left asking the questions;
where do I come from and who is my family. Under Islamic Law, it is the
specified right of every child to know the answers to these questions.
Women's Dignity, Rights and Empowerment

in Islam
We hear a lot of things about women's position and rights in the society. Some of
the words that are expressed about the realization of women's rights are
acceptable. Again there is room for difference of opinion on some points. It is
imperative to establish the rights of men and women fully, because the society is
moving forward everyday. So not only men or women but also the rights of every
individual must be established.
The society has made significant progress during the last 50 years. The
women like men have come forward though not equally. We have left far
behind the society we had during Begum Rokeya`s- time. She saw that the
girls had no opportunity for education. You ladies, perhaps could not have
received education if Begum Rokeya was not born at that time & not taken
bold initiative for female education. Of course, Almighty Allah would have
sent some other woman to this earth who could do the job. However, I do not
want to digress from the point because I must finish the discussion within the
allotted time.
In the whole world especially in our country the oppression that is being
unleashed on the people particularly on the women has a foundation. The
oppression is not descending from the sky. The ideological foundation for the
persecution on women by men and at times by women themselves is:
generally the people believe, particularly the men believe that women are
inferior to men having low quality & below standard. The belief also exists in
the women. This belief originates from some erroneous ideas among the
people. And on this belief is standing firmly the whole edifice of oppression,
deprivation and disrespect towards women.
If we want to eliminate persecution on women from our country, it cannot be
done excluding Islam. I want to make it very clear that in a country like ours
where ninety percent people are Muslims, we would not be able to move
without Islam. Those who have revolted against Islam could not last long and
are not able to sustain. A women revolted - I would not name her - her end
was not good. She ended in a miserable condition. With all humility I would
like to say that if we can move ahead remaining within the framework of
Islam then it will be good in all respects. I firmly believe that there is such a
framework in Islam, which can ensure the progress of women.
I am not in favour of distorting Islam nor I am inclined to giving temporary

interpretation of Islam. In true sense, Islam has empowered women and
Islam has upheld respect for women. Islam has ensured rights for women.
But before enlarging on this I would mention what could be the basis or
"ideological foundation" on which the fundamental equality of men & women
depends? God has not created all human beings with similar appearance.
Two persons are never equal in every dot or in all respects. One person is
different from another in terms of his weight, height, colour, education etc.
But basically every human being is equal - equal to Almighty Allah. I would
like to present four arguments to prove this:
1. Allah has made this thing very clear that real human being is 'Ruh`. We
call it soul or spirit. Real man is not body. The body will perish in the grave.
Those of us who believe in Islam know that fundamental element of man is
the 'Ruh`. Allah created all human beings and their 'Ruhs` (spirit) at the
same time, created them the same way and asked them a single question.
All men and women gave the same answer. I quote a verse (172) from Sura
Aàraf:
When thy Lord drew forth From the children of Adam From their loins- Their
descendants and made them. Testify concerning them (saying) "Am I not
your Lord (Who cherishes & sustains you)? They said: "yea! We do testify!
It means all men and women reached an agreement on one point that is,
"You are our Lord and we shall obey you. Here no separate agreements were
made with men or with women. So, the first word about our ideological
foundation is that the real human being is the Ruh (spirit) and all spirits are
equal. Any other inequality or dissimilarity if any is insignificant or very small
compared to the equality of human soul or spirit.
It means that the spiritual personalities of a human being are the same and
so as 'human beings` all are equal. This is the fundamental foundation of
equality among men and women.
2. We, men, boast of our physical structure as superior to that of the women
and think that perhaps God has created us better comparatively. But God
has made one thing very clear in the Holy Quran that there is, of course,
some difference between all human beings but everyone is "the first class"
and superb. Those of you who offer prayer regularly know a particular verse
from 'Sura Tin' (Sura or chapter no 95 of the Quran, verse 4) which says: "we
have indeed created the human beings in the best of moulds." It did not say
that the men only were created in the best of moulds. It means there is
difference in our appearances and in our structures. But everyone is
excellent and first class.
So, to establish the fundamental equality of men and women or to launch a

new movement for women or the humanity at large the men should not say
that the structures of women are bad. Allah would not like that. Those who
are believers must not say this. This is the second proof of basic equality
among men and women. I say "basic" because there would remain some
minor differences between men and women.
3. Allah clearly says: all people belong to one family- the family Adam and
Eve. In Sura Nisa Allah says:
"O mankind! Revere Your Guardian- Lord, Who created you? >From a single
person, Created, of like nature, His mate, and from them twain Scattered
(like seeds) Countless men and women:"
It proves that we belong to a single family. We are children of Adam. In the

Holy Quran Allah addressed the human beings as, "children of Adam" many
times. As the children and parents together make a family, similarly all
human beings together make a family in the eyes of Islam.
The family of human beings is above all other families. It means that our
fundamental honour and dignity is the same. There may be some differences
on minor issues but worldly dignity is not real dignity. As in legal terms, all
human beings are equal in the eyes of the law, so all are equal in the eyes of
Allah. The only foundation of respect to Allah is 'Taqwa` (obedience to Him).
Allah has never said that men are more respectful to Him or women are less
respectful to Him. He says, only who obeys Him is respectful to Him amongst
you.
If this were the foundation of respect to Allah, then does the difference
created by men matter at all? Allah says, He never differentiates between
person to person except on Taqwa or piety or obedient to Him. So we are
children of one family and our fundamental dignity is the same. In Sura
Huzurat, (Ayat 13) Allah says: "O mankind! We created You from a single
(pair) Of a male and a female, And made you into Nations and tribes, that Ye
may know each other (Not that yea may despise (Each other). Verily The
most honoured of you In the sight of Allah Is (the person who is) the most
Righteous of you.
And Allah has full knowledge And is well acquainted (with all things)."
Allah says in a verse of Surah Al Nisa (Chapter 4 of the Quran):
"Fear Allah through whom Yea demand your mutual (rights) And (revere) the
wombs (That bore you): for Allah Ever watches over you."
Allah says clearly, "revere the wombs". While commenting on this verse a
famous religious scholar of Egypt, Syed Qutb writes: These words were never
written in any other literature in the world prior to The Holy Quran. He said in
a detailed commentary of this verse that all human beings are essentially
equal. But among them, women are superior in a sense. Because by revering
the wombs Allah has in fact asked us to respect mothers and respect the
women as a whole. So this proves the equality of our basic social status. This
is the third proof of our new ideological foundation. (Sura Nisa - Tafsir: Syed
Qutb).
4. At the time of creation Allah told the human beings, all of you are
'Khalifa`( caliph- representatives). He said, "I will send into the world my
representatives." Allah did not say that He was sending women or men. He
did not even say that He was sending human beings. He told that He was
sending representatives.
He sent human beings but called them His representatives. He termed
human beings as His Khalifa meaning representatives. The entire human
race is His representatives irrespective of the sex. But it is true that if we
commit sin, commit crime, commit murder, carry out oppression, and lose
our faith in Him then we will lose our status as Khalifa. But basically we all
are the representatives of Allah. (Quran 2:30; 35:39)
All empowerment lies with this status as Khalifa. No one can perform one's
responsibility without power or authority. To perform one's responsibility as
Khalifa each man or woman must have some authority.
The foundation of woman's empowerment lies with this Khilafat. Not only
women; in Khelafat lies the foundation of empowerment of all women, men,
poor, and weak. So this is the 4th proof of fundamental equality between a
man and a women. Islam wants that every man, every woman, every person
should be empowered. But if the women are deprived now they should be
empowered first. If the men are deprived any time they should be
empowered. We must think first about anyone who is deprived; at present
we must put in efforts for the empowerment of women.
Today in your discussions you talked about what should be real work of a
woman. Some of you questioned whether they should only stay at home? If
any woman freely decides to stay at home, she has rights to do it. It is
applicable to a man also. But Almighty Allah has never said anywhere that
women will have to stay at home and will not be able to do anything outside.
On the contrary, Allah has given the same basic responsibility to women as
well as men. In the 71st verse of Sura Tawba (chapter 9 of the Quran) Allah
says, men & women have 6 (six) responsibilities:
"The believers, men And women, are protectors One of another: They uphold
What is just, and forbid? What is evil: they observe Regular prayers, practice
Regular charity and obey Allah and His Messenger."
So the 6 responsibilities are:
1. They uphold what is just

2. They forbid what is evil
3. They observe regular prayers.
4. Practice regular charity
5. Obey Allah
6. Obey His Messenger.
This verse says, Men and women are protectors ('Wali' or guardians) of one
another. Some people say that women cannot be guardians but Allah says
that the women can be guardians. Through these instructions Allah has
recognized the participation of women in all good activities. Allah has
declared that He will shower blessings on those who will perform these
responsibilities. After studying several Tafsirs (commentaries) of the Holy
Quran and as a person having full faith in the Holy Book and the Sunnah of
Rasul (the way the prophet lived his life), I express my firm belief that all
men & women are equal so far as these 6 responsibilities are concerned. All
activities including politics & social work fall within its purview.
I feel that we have made ourselves busy with petty things leaving aside the
essence of Islam. We are depending on many books written by men. It seems
to me that we are not paying that much importance to the original Book of
Allah in comparison to other books.
Lastly, I would like to say that if you learn Islam through others you would
not learn the true spirit of Islam. You will have to study a few commentaries
of the Quran yourself. Some try to insert their own opinions in the
translations. So if you study 5 or 6 translation in the Quran you will be able to
understand where people's opinions have found their place in the Quran and
what are the words of Allah. Study of several commentaries will help you
understand which interpretations are correct. We do not have well known
women commentators of the Holy Book. It is their failure. There would not
have been gender bias if they could play their part effectively. However,
there are some commentaries of the Holy Quran, which are free from gender
bias: for example "The Message of Quran by Mohammad Asad. I would like to
conclude here.
Shah Abul Hannan, a former secretary to the Government of Bangladesh,

made this presentation at the 23rd Animators Training held in Dhaka
especially for the women. Translation into English by Mr. Rafiqul Islam
Sarkar.
« sharia
Sharia also known as Shariah (Sharee’ah;Shari’ah) Islamic Law »
sharia punishments
By Khurram Murad
August 9, 2005
Punishments have always been considered an integral part of the concept of justice. Indeed, a
common man would find it hard to think of justice as something very different or separate from
rewarding or punishing people according to how well or badly they observe the body of the
mutual rights and obligations in their society. But if the concept of punishment is universal, the
controversies surrounding it are nonetheless intense. We shall now look at some basic Islamic
principles concerning punishments.
Basic Principles
Each human being is responsible for his or her actions. This simple truth provides the whole
basis for the justification of punishment; for to fulfill the purpose of this creation, mankind has
been granted the freedom to choose and act and the moral sense to distinguish between right and
wrong. Responsibility goes with knowledge and freedom. Punishment cannot, therefore, be
meted out to one person for another personâ€™s actions, for acts intended but not performed, or
for acts done under duress or while not of sound mind. Everyone must be equal before the law
and their guilt must be established by the due process of justice.
Proportional Justice
It is important to note that there is no concept in Islam of the punishment being exactly and justly
proportional to the crime. Absolute and truly proportional justice would require the exact and
complete evaluation of such complex factors as intentions and motives, the surrounding
circumstances, and the causes and repercussionsâ€”factors which human judges must consider
but cannot evaluate fully and which only God, in the new moral order to be set up in the life after
death, can measure. Islamic punishments are not, therefore, to be judged on the scales of
proportional and full retribution. They are, however, laid down by the One who is infinitely
merciful and wise, and are, therefore, more suitable for the particular crimes than anything that
can be prescribed by any human legislature or judge.
Part of a Whole
Most importantly, punishments are only a part of a vastly larger, integrated whole. They can
neither be properly understood nor successfully or justifiably implemented in isolation. First, law
is not the main, or even major, vehicle in the total framework for the reinforcement of morality;
it is the individualâ€™s belief, the individualâ€™s God-consciousness and taqwaâ€”that
inherent and innate quality which makes one want to refrain from what displeases God and do
what pleases Him. Second, justice is a positive ideal which permeates and dominates the entire
life of the communityâ€”it is not merely an institutionalized means of inflicting punishment.
Third, and consequently, a whole environment is established where to do right is encouraged,
facilitated, and found easy, while to do wrong is discouraged, inhibited, and found difficult. All
men and women are enjoined, as their foremost duty, to aid, exhort, and commend each other to
do good and to avoid evil.
Functional Nature
Penalties in Islam are more of a functional nature, to regulate and deter. God has laid down a
body of mutual rights and obligations that are the true embodiment of justice. He has also laid
down certain boundaries and limits to be observed and maintained for this very purpose. If
people and nations desire to move in peace and safety on the highways of life, they must stick to
the traffic lanes demarcated for them and observe all the signposts erected along their routes. If
they do not, they not only put themselves in danger, but endanger others. They, therefore,
naturally make themselves liable to penaltiesâ€”not in vengeful retribution, but to regulate the
orderly exchanges in a personâ€™s life in accordance with justice.
It is a significant contribution of Islam that these penalties are called hudud (boundaries) and not
punishments: they are liabilities incurred as a result of crossing the boundaries set by God. An
important consequence of these hudud having been laid down by God and not by man, is that it
is beyond human authority to reduce or supersede them out of a sense of mercy greater than that
of God; nor can a tyrant or autocrat add to them out of a greater sense of strict justice. For no one
can be more merciful or wiser or more just than God Himself.
Another important function that these punishments serve is educative, thus preventive and
deterrent. The Qurâ€™an alludes to this aspect when it describes them as exemplary punishment
from God (Al-Maâ€™idah 5:38). Punishments are thus designed to keep the sense of justice
alive in the community by a public repudiation of the acts violating the limits set by God. They
are expected to build up in the society a deep feeling of abhorrence for transgression against
fellow human beings, and therefore against God, a transgression which, according to the
Qurâ€™an, is the root cause of all disorders and corruption in human life.
Retributionâ€”Qisaas
Apart from punishments for transgressions like extramarital sex, theft, libel, and drinking, the
Qurâ€™an also provides for the principle of qisaas or retribution. When a person causes physical
injury or harm to a fellow human being, Islam gives the injured party the right of equal
requitalâ€”the well known principle of â€œan eye for an eye, a tooth for a tooth.â€? This
procedure is persistently labeled by critics as primitive and uncivilized. In the Islamic view of
history, it is worth pointing out, what is primitive has never been necessarily uncivilized. The
first man was given all necessary knowledge and guidance, and though he may have been
technologically backward compared to the twentieth century, he definitely was not humanly
backward. Uncivilized is what a person thinks and does in deviating from the divine order.
In the eyes of the Qurâ€™an, (in retribution (qisaas) lies life for you.) (Al-Baqarah 2:179) The
reasons are obvious. First, the right of retribution belongs to individuals, not society or the state;
this simple shift in responsibility results in a profound and far reaching change in the whole
system of implementing justice. The state does not have to intervene every time two human
beings are involved in a dispute. Thus, instead of starting an irreversible process of trial and
punishment, it leaves the ground open for settlement between individuals, without interference
by impersonal bureaucratic machinery, though under no circumstances can the individual take
the law into his or her own hands.
The injured person, in turn, may forgo the right to retribution by forgiving, or may agree to
accept a monetary or token recompense instead. The Qurâ€™an, in fact, highly recommends the
act of forgiving. Thus, under qisaas, punishment is avoidable without burdening the executive or
judiciary with the dilemma of whether to exercise mercy. As against a court, which must act
according to law once a case is brought before it, an individual is free to act as he or she wishes.
Justice has to be blind, but an individual may take circumstances into account, and suspend
judgment in the hope of being forgiven by God in the Hereafter. Very few realize that the
principle of qisaas even allows capital punishment to be avoided.
Mercy and Leniency
Having prescribed punishments and imposed strict and meticulous, though not impossible,
conditions of evidence, Islam has built in a whole range of principles and precepts which reflect
not a frenzied desire to flog and stone but a compassionate urge to avoid and eschew. Islam does
not allow either the state or individuals to spy upon people unless well founded suspicion exists
that a crime is being committed or a fellow human beingâ€™s rights or interests are in jeopardy.
Nor is it obligatory to report every crime. Where possible, settlements outside court are
preferred. The punishment is swiftly over; the guilty person and his or her family do not have to
live with the kind of lengthy public stigma that they would have had to endure in the case of a
prison sentence at the end of a trial. The imposition of divinely prescribed hudud enhances, not
diminishes, the individualâ€™s dignity and stature in society and before God.
Alleged Cruelty
As to the alleged cruelty of physical penalties, one wonders if to deprive a person of his or her
freedom (the most precious and valuable possession), the right to act and continue to make moral
choices, the right to live with a family (to work for and support them) is not more cruel. Indeed, a
prison term can inflict untold misery on innocent people whose lives are intertwined with the life
of the prisoner. Prison becomes a school for hardening criminal behavior and a breeding ground
for recidivism. Why should it be considered more cruel for a person found drug trafficking to be
given ten lashes than to be sent to languish in prison for, say, ten years.
Reform Syndrome
Why does Islam want to punish and not reform? The question is fallacious, for in Islam, every
institution of society is value-oriented and owes a responsibility towards the moral development
of every person from the cradle to the grave. Reform is, therefore, a pre-crime responsibility and
not a post-crime syndrome and nightmare. Islam makes every effort to ensure that inducement to
commit crime is minimal. Once the crime is committed, the best place for reform is in the family
and in the society where a criminal is to live after punishment, not in a prison where every
inmate is a criminal; unless, of course, a society considers itself to be more corrupt and less
competent to effect reform than a jail! Against this, the â€œmodern, enlightenedâ€? approach is
to provide every inducement to crime by building a society based on conspicuous consumption;
to make society, education, and every other institution â€œvalue freeâ€? and then to try to
reform a criminal by segregating the person and keeping him or her in a prison.
Procedural Justice
Sentences in Islam are certainly harsh, but still more strict and severe are the procedures laid
down to be observed before a person may be convicted. These procedures are modeled on the
paradigm of the Day of Judgment, when even God, though He is All-knowing, and Just, will not
punish a person unless He establishes that personâ€™s guilt. â€œTo let nine criminals go free is
preferable to convicting one innocent man,â€? said the Prophet.
This entry was posted on Monday, September 19th, 2005 at 8:57 pm and is filed under Shariah Islamic Law. You
can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your
own site.
4 Responses to “sharia punishments”
1. FunctionalAnarchist Says:
September 2nd, 2006 at 7:11 am
“it is the individualâ€™s belief, the individualâ€™s God-consciousness and
taqwaâ€”that inherent and innate quality which makes one want to refrain from what
displeases God and do what pleases Him.”
The immediate question to pop into my head is how does this effect differing
interpretations of God’s will?
How would it be applied to an Athiest?
To an Agnostic?
Would not their very thought patterns make them criminal?
How would or shouldSharian Law be applied in a case involving “infidels” ( another
concept in need of definition and reasoned interpretation)?
• Introduction
Sharia, or Islamic law, influences the legal code in most Muslim countries. A movement to allow sharia to
govern personal status law, a set of regulations that pertain to marriage, divorce, inheritance, and custody,
is even expanding into the West. "There are so many varying interpretations of what sharia actually means
that in some places it can be incorporated into political systems relatively easily," says Steven A. Cook,
CFR senior fellow for Middle Eastern studies. Sharia's influence on both personal status law and criminal
law is highly controversial, though. Some interpretations are used to justify cruel punishments such as
amputation and stoning as well as unequal treatment of women in inheritance, dress, and independence.
The debate is growing as to whether sharia can coexist with secularism, democracy, or even modernity.
What is Sharia?
Also meaning "path" in Arabic, sharia guides all aspects of Muslim life including daily routines, familial
and religious obligations, and financial dealings. It is derived primarily from the Quran and the Sunna--
the sayings, practices, and teachings of the Prophet Mohammed. Precedents and analogy applied by
Muslim scholars are used to address new issues. The consensus of the Muslim community also plays a
role in defining this theological manual.
Sharia developed several hundred years after the Prophet Mohammed's death in 632 CE as the Islamic
empire expanded to the edge of North Africa in the West and to China in the East. Since the Prophet
Mohammed was considered the most pious of all believers, his life and ways became a model for all other
Muslims and were collected by scholars into what is known as the hadith. As each locality tried to
reconcile local customs and Islam, hadith literature grew and developed into distinct schools of Islamic
thought: the Sunni schools, Hanbali, Maliki, Shafi'i, Hanafi; and the Shiite school, Ja'fari. Named after the
scholars that inspired them, they differ in the weight each applies to the sources from which sharia is
derived, the Quran, hadith, Islamic scholars, and consensus of the community. The Hanbali school,
known for following the most Orthodox form of Islam, is embraced in Saudi Arabia and by the Taliban.
The Hanafi school, known for being the most liberal and the most focused on reason and analogy, is
dominant among Sunnis in Central Asia, Egypt, Pakistan, India, China, Turkey, the Balkans, and the
Caucasus. The Maliki school is dominant in North Africa and the Shafi'i school in Indonesia, Malaysia,
Brunei Darussalam, and Yemen. Shia Muslims follow the Ja'fari school, most notably in Shia-dominant
Iran. The distinctions have more impact on the legal systems in each country, however, than on individual
Muslims, as many do not adhere to one school in their personal lives.
Controversy: Punishment and Equality under Sharia

Marriage and divorce are the most significant aspects of sharia, but criminal law is the most controversial.
In sharia, there are categories of offenses: those that are prescribed a specific punishment in the Quran,
known as hadd punishments, those that fall under a judge's discretion, and those resolved through a tit-
for-tat measure (ie., blood money paid to the family of a murder victim). There are five hadd crimes:
unlawful sexual intercourse (sex outside of marriage and adultery), false accusation of unlawful sexual
intercourse, wine drinking (sometimes extended to include all alcohol drinking), theft, and highway
robbery. Punishments for hadd offenses--flogging, stoning, amputation, exile, or execution--get a
significant amount of media attention when they occur. These sentences are not often prescribed,
however. "In reality, most Muslim countries do not use traditional classical Islamic punishments," says Ali
Mazrui of the Institute of Global Cultural Studies in a Voice of America interview. These punishments
remain on the books in some countries but lesser penalties are often considered sufficient.
Despite official reluctance to use hadd punishments, vigilante justice still takes place. Honor killings,
murders committed in retaliation for bringing dishonor on one's family, are a worldwide problem. While
precise statistics are scarce, the UN estimates thousands of women are killed annually in the name of
family honor (National Geographic). Other practices that are woven into the sharia debate, such as
female genital mutilation, adolescent marriages, polygamy, and gender-biased inheritance rules, elicit as
much controversy. There is significant debate over what the Quran sanctions and what practices were
pulled from local customs and predate Islam. Those that seek to eliminate or at least modify these
controversial practices cite the religious tenet of tajdid. The concept is one of renewal, where Islamic
society must be reformed constantly to keep it in its purest form. "With the passage of time and changing
circumstances since traditional classical jurisprudence was founded, people's problems have changed and
conversely, there must be new thought to address these changes and events," says Dr. Abdul Fatah Idris,
head of the comparative jurisprudence department at Al-Azhar University in Cairo. Though many
scholars share this line of thought, there are those who consider the purest form of Islam to be the one
practiced in the seventh century.
Sharia vs. Secularism

In a 2007 University of Maryland poll (PDF), more than 60 percent of the populations in Egypt, Morocco,
Pakistan, and Indonesia responded that democracy was a good way to govern their respective countries,
while at the same time, an average of 71 percent agreed with requiring "strict application of [sharia] law in
every Islamic country." Whether democracy and Islam can coexist is a topic of heated debate. Some
Islamists argue democracy is a purely Western concept imposed on Muslim countries. Others feel Islam
necessitates a democratic system and that democracy has a basis in the Quran since "mutual consultation"
among the people is commended (42:38 Quran). John L. Esposito and John O. Voll explain the debate in
a 2001 article in the journal Humanities.
Noah Feldman, CFR adjunct senior fellow, writes in a 2008 New York Times Magazine article that the
full incorporation of Islamic law is viewed as creating "a path to just and legitimate government in much
of the Muslim world." It places duplicitous rulers alongside their constituents under the rule of God. "For
many Muslims today, living in corrupt autocracies, the call for [sharia] is not a call for sexism,
obscurantism or savage punishment but for an Islamic version of what the West considers its most prized
principle of political justice: the rule of law," Feldman argues.
On the other hand, some Muslim scholars say that secular government is the best way to observe sharia.
"Enforcing a [sharia] through coercive power of the state negates its religious nature, because Muslims
would be observing the law of the state and not freely performing their religious obligation as Muslims,"
says Abdullahi Ahmed An-Na'im, a professor of law at Emory University and author of a book on the
future of sharia. Opinions on the best balance of Islamic law and secular law vary, but sharia has been
incorporated into political systems in three general ways:
• Dual Legal System. Many majority Muslim countries have a dual system in which the government is
secular but Muslims can choose to bring familial and financial disputes to sharia courts. The exact
jurisdiction of these courts varies from country to country, but usually includes marriage, divorce,
inheritance, and guardianship. Examples can be seen in Nigeria and Kenya, which have sharia courts
that rule on family law for Muslims. A variation exists in Tanzania, where civil courts apply sharia or
secular law according to the religious backgrounds of the defendants. Several countries, including
Lebanon and Indonesia, have mixed jurisdiction courts based on residual colonial legal systems and
supplemented with sharia. Western countries are also exploring the idea of allowing Muslims to apply
Islamic law in familial and financial disputes. In late 2008, Britain officially allowed sharia tribunals
(NYT) governing marriage, divorce, and inheritance to make legally binding decisions if both parties
agreed. The new system is in line with separate mediation allowed for Anglican and Jewish
communities in England. Criminal law remains under the gavel of the existing legal system. "There is
no reason why principles of sharia law, or any other religious code, should not be the basis for
mediation," Britain's top judge, Lord Nicholas Phillips, said in a July 2008 speech (PDF). Supporters of
this initiative, such as the archbishop of Canterbury, Rowan Williams, argue that it would help
maintain social cohesion (BBC) in European societies increasingly divided by religion. However, some
research suggests the process to be discriminatory toward women (BBC). Other analysts suggest the
system has led to grey areas. Britain's Muslims come from all over the world, Ishtiaq Ahmed, a
spokesperson for the Council for Mosques in England, told the BBC, noting that this makes it hard to
discern at times "where the rulings of the sharia finish and long-held cultural practices start." Sharia
has recently become a topic of political concern in the United States. The state of Oklahoma will
consider a ballot measure in November 2010 on whether to ban the use of sharia law in court cases,
which supporters are calling "a preemptive strike against Islamic law" (ABCNews). Several opponents
of new mosques being built around the United States, including one near Ground Zero, have cited fear
of the spread of sharia as a reason for opposition. And about a third of Americans in an August 2010
Newsweek poll suspect U.S. President Barack Obama sympathizes with Islamist goals (PDF) to impose
sharia.
• Government under God. In those Muslim countries where Islam is the official religion listed in the
constitution, sharia is declared to be a source, or the source, of the laws. Examples include Saudi
Arabia, Kuwait, Bahrain, Yemen, and the United Arab Emirates, where the governments derive their
legitimacy from Islam. In Pakistan, Egypt, Iran, and Iraq, among others, it is also forbidden to enact
legislation that is antithetical to Islam. Saudi Arabia employs one of the strictest interpretations of
sharia. Women are not allowed to drive, are under the guardianship of male relatives at all times, and
must be completely covered in public. Elsewhere, governments are much more lenient, as in the United
Arab Emirates, where alcohol is tolerated. Non-Muslims are not expected to obey sharia and in most
countries, they are the jurisdiction of special committees and adjunct courts under the control of the
government.
• Completely Secular. Muslim countries where the government is declared to be secular in the
constitution include Azerbaijan, Tajikistan, Chad, Somalia, and Senegal. Islamist parties run for office
occasionally in these countries and sharia often influences local customs. Popular Islamist groups are
often viewed as a threat by existing governments. As in Azerbaijan in the 1990s, secularism is
sometimes upheld by severe government crackdowns on Islamist groups and political parties. Similar
clashes have occurred in Turkey. Under the suspicion that the majority party, the Islamist Justice and
Development Party, was trying to establish sharia, Turkey's chief prosecutor petitioned the
constitutional court (Economist) in March 2008 to bar the party from politics altogether. One of the
politicians indicted, Prime Minister Recep Tayyip Erdogan, told Newsweek, "Turkey has achieved what
people said could never be achieved--a balance between Islam, democracy, secularism and modernity."
Secular Muslim countries are a minority, however, and the popularity of Islamist political parties are
narrowing the gap between religion and state.
Modern Economies and Sharia

Growing at an estimated 15 percent annually, Islamic banking and finance is a worldwide industry that
modifies modern business practices to conform to the rules of sharia. Central to this field is riba, the
charging or payment of interest, banned under Islamic law. Clever twists on standard financial products
like credit cards, savings accounts, mortgages, loans, and even trust funds bypass the interest business
model. A 2008 report by the General Council for Islamic Banks and Financial Institutions estimates the
Islamic banking industry to stand at $442 billion. Even big name banks such as Citigroup, HSBC, and
Deutsche Bank are developing Islamic banking sectors to cater to the demand. The industry is small in
comparison to the global market, but may grow as some non-Muslims are turning to sharia-compliant
services. Some of the ethically minded are also switching over to sharia-compliant investments.
Businesses are required to avoid transactions related to forbidden things, such as weapons, alcohol,
tobacco, gambling, pornography and pork, and investors are guaranteed that their money won't end up
financing those industries. Governments are also looking to get a piece of the pie: Malaysia is the largest
issuer of sharia-compliant bonds and Indonesia launched its own in January 2009.
Essential Features of the Islamic Political System

by
Abul Ala Maududi
The political system of Islam is based on three principles: Tawhid (unity of Allah),
Risalat (Prophethood) and Khilafat (vicegerency). It is difficult to appreciate the different
aspects of Islamic polity without fully understanding these three principles. I will
therefore begin with a brief exposition of what they are.
Tawhid means that only Allah is the Creator, Sustainer and Master of the universe and
of all that exists in it, organic or inorganic. The sovereignty of this kingdom is vested
only in Him. He alone has the right to command or forbid. Worship and obedience are
due to Him alone, no one and nothing else shares it in any way. Life, in all its forms, our
physical organs and faculties, the apparent control which we have over nearly
everything in our lives and the things themselves, none of them has been created or
acquired by us in our own right. They have been bestowed on us entirely by Allah.
Hence, it is not for us to decide the aim and purpose of our existence or to set the limits
of our authority; nor is anyone else entitled to make these decisions for us. This right
rests only with Allah, who has created us, endowed us with mental and physical
faculties, and provided material things for our use. Tawhid means that only Allah is the
Creator, Sustainer and Master of the universe and of all that exists in it, organic or
inorganic. The sovereignty of this kingdom is vested only in Him. He alone has the right
to command or forbid. Worship and obedience are due to Him alone, no one and
nothing else shares it in any way. Life, in all its forms, our physical organs and faculties,
the apparent control which we have over nearly everything in our lives and the things
themselves, none of them has been created or acquired by us in our own right. They
have been bestowed on us entirely by Allah. Hence, it is not for us to decide the aim
and purpose of our existence or to set the limits of our authority; nor is anyone else
entitled to make these decisions for us. This right rests only with Allah, who has created
us, endowed us with mental and physical faculties, and provided material things for our
use. Tawhid means that only Allah is the Creator, Sustainer and Master of the universe
and of all that exists in it, organic or inorganic. The sovereignty of this kingdom is vested
only in Him. He alone has the right to command or forbid. Worship and obedience are
due to Him alone, no one and nothing else shares it in any way. Life, in all its forms, our
physical organs and faculties, the apparent control which we have over nearly
everything in our lives and the things themselves, none of them has been created or
acquired by us in our own right. They have been bestowed on us entirely by Allah.
Hence, it is not for us to decide the aim and purpose of our existence or to set the limits
of our authority; nor is anyone else entitled to make these decisions for us. This right
rests only with Allah, who has created us, endowed us with mental and physical
faculties, and provided material things for our use.
This principle of the unity of Allah totally negates the concept of the legal and political
independence of human beings, individually or collectively. No individual, family, class
or race can set themselves above Allah. Allah alone is the Ruler and His
commandments are the Law.
The medium through which we receive the law of Allah is known as Risalat. We have
received two things from this source: the Book in which Allah has set out His law, and
the authoritative interpretation and exemplification of the Book by the Prophet, blessings
and peace be on him through word and deed, in his capacity as the representative of
Allah. The Prophet, blessings and peace be on him, has also, in accordance with the
intention of the Divine Book, given us a model for the Islamic way of life by himself
implementing the law and providing necessary details where required. The combination
of these two elements is called the Shari‘ah.
Now consider Khilafat. According to the Arabic lexicon, it means ‘representation’. Man,
according to Islam, is the representative of Allah on earth, His vicegerent. That is to say,
by virtue of the powers delegated to him by Allah, he is required to exercise his Allah-
given authority in this world within the limits prescribed by Allah.
Take, for example, the case of an estate which someone has been appointed to
administer on your behalf. You will see that four conditions are invariably met. First, the
real ownership of the estate remains vested in you and not in the administrator; second,
he administers your property only in accordance with your instructions; third, he
exercises his authority within the limits prescribed by you; and fourth, in the
administration of the trust he executes your will and not his own. These four conditions
are so inherent in the concept of ‘representation’ that if any representative fails to
observe them he will rightly be blamed for breaking the covenant which was implied in
the concept of ‘representation’. This is exactly what Islam means when it affirms that
man is the vicegerent of Allah on earth. Hence, these four conditions are also involved
in the concept of Khilafat.
A state that is established in accordance with this political theory will in fact be a human
caliphate under the sovereignty of Allah and will do Allah’s will by working within the
limits prescribed by Him and in accordance with His instructions and injunctions.
This is a new and revised translation of a talk given by the author on Radio Pakistan, Lahore, on 20th
January, 1948.
Democracy in Islam
The above explanation of the term Khilafat also makes it abundantly clear that no
individual or dynasty or class can be Khilafah, but that the authority of caliphate is
bestowed on any community which accepts the principles of Tawhid and Risalat. In
such a society, each individual shares the Allah-given caliphate. This is the point where
democracy begins in Islam.
Every person in an Islamic society enjoys the rights and powers of the caliphate of Allah
and in this respect all individuals are equal. No one can deprive anyone of his rights and
powers. The agency for running the affairs of the state will be established in accordance
with the will of these individuals, and the authority of the state will only be an extension
of the powers of the individual delegated to it. Their opinion will be decisive in the
formation of the Government, which will be run with their advice and in accordance with
their wishes. Whoever gains their confidence will carry out the duties of the caliphate on
their behalf; and when he loses this confidence he will have to relinquish his office. In
this respect the political system in Islam is as perfect a democracy as ever can be.
What distinguishes Islamic democracy from Western democracy is that while the latter
is based on the concept of popular sovereignty the former rests on the principle of
popular Khilafat. In Western democracy the people are sovereign, in Islam sovereignty
is vested in Allah and the people are His caliphs or representatives. In the former the
people make their own laws; in the latter they have to follow and obey the laws
(Shari‘ah) given by Allah through His Prophet. In one the Government undertakes to
fulfil the will of the people; in the other Government and the people alike have to do the
will of Allah. Western democracy is a kind of absolute authority which exercises its
powers in a free and uncontrolled manner, whereas Islamic democracy is subservient to
the Divine Law and exercises its authority in accordance with the injunctions of Allah
and within the limits prescribed by Him.
Purpose of the Islamic State
The Holy Qur’an clearly states that the aim and purpose of this state, built on the
foundation of Tawhid, Risalat and Khilafat, is the establishment, maintenance and
development of those virtues which the Creator of the universe wishes human life to be
enriched by, and the prevention and eradication of those evils which are abhorrent to
Allah. The state in Islam is not intended for political administration only nor for the
fulfilment through it of the collective will of any particular set of people. Rather, Islam
places a high ideal before the state for the achievement of which it must use all the
means at its disposal. The aim is to encourage the qualities of purity, beauty, goodness,
virtue, success and prosperity which Allah wants to flourish in the life of His people and
to suppress all kinds of exploitation and injustice. As well as placing before us this high
ideal, Islam clearly states the desired virtues and the undesirable evils. The Islamic
state can thus plan its welfare programmes in every age and in any environment.
The constant demand made by Islam is that the principles of morality must be observed
at all costs and in all walks of life. Hence, it lays down an unalterable requirement for
the state to base its politics on justice, truth and honesty. It is not prepared, under any
circumstances, to tolerate fraud, falsehood and injustice for the sake of political,
administrative or national expediency. Whether it be relations between the rulers and
the ruled within the state, or relations of the state with other states, precedence must
always be given to truth, honesty and justice. It imposes obligations on the state similar
to those it imposes on the individual: to fulfil all contracts and obligations; to have
consistent standards in all dealings; to remember obligations as well as rights and not to
forget the rights of others when expecting them to fulfil their obligations; to use power
and authority for the establishment for justice and not for the perpetration of injustice; to
look on duty as a sacred obligation; and to regard power as a trust from Allah to be
used in the belief that one has to render an account of one’s actions to Him in the
Hereafter.
Fundamental Rights
Although an Islamic state may be set up anywhere on earth, Islam does not seek to
restrict human rights or privileges to the geographical limits of its own state. Islam has
laid down universal fundamental rights for humanity as a whole, which are to be
observed and respected in all circumstances irrespective of whether a person lives on
the territory of the Islamic state or outside it and whether he is at peace with the state or
at war. For example, human blood is sacred and may not be spilled without justification;
it is not permissible to oppress women, children, old people, the sick or the wounded;
woman’s honour and chastity must be respected in all circumstances; and the hungry
must be fed, the naked clothed, and the wounded or diseased treated medically.
These, and a few other provisions, have been laid down by Islam as fundamental rights
for every man by virtue of his status as a human being, to be enjoyed under the
constitution of an Islamic state.
The rights of citizenship in Islam, however, are not confined to persons born within the
limits of its state but are granted to every Muslim irrespective of his place of birth. A
Muslim ipso facto becomes the citizen of an Islamic state as soon as he sets foot on its
territory with the intention of living there; he thus enjoys equal rights of citizenship with
those who are its citizens by birth. Citizenship must therefore be common to all the
citizens of all the Islamic states that exist in the world; a Muslim will not need a passport
for entry or exit from any of them. And every Muslim must be regarded as eligible for
positions of the highest responsibility in an Islamic state without distinction of race,
colour or class.
Islam has also laid down certain rights for non-Muslims who may be living within the
boundaries of an Islamic state, and these rights must necessarily form part of the
Islamic constitution. According to Islamic terminology such non-Muslims are called
dhimmis (the covenanted), implying that the Islamic state has entered into a covenant
with them and guaranteed their rights.
The life, property and honour of a dhimmi is to be respected and protected in exactly the
same way as that of a Muslim citizen. There is no difference between Muslim and non-
Muslim citizens in respect of civil or criminal law; and the Islamic state shall not interfere
with the personal law of non-Muslims. They will have full freedom of conscience and
belief and will be entitled to perform their religious rites and ceremonies. As well as
being able to practise their religion, they are entitled to criticise Islam. However the
rights given in this respect are not unlimited: the civil law of the country has to be fully
respected and all criticism has to be made within its framework.
These rights are irrevocable and non-Muslims can only be deprived of them if they
renounce the convenant which grants them citizenship. However much a non-Muslim
state may oppress its Muslim citizens, it is not permissible for an Islamic state to
retaliate against its non-Muslim subjects. This injunction holds good even if all the
Muslims outside the boundaries of an Islamic state are massacred.
Executive and Legislature
The responsibility for the administration of the Government in an Islamic state is
entrusted to an Amir (leader) who may be likened to the President or the Prime Minister
in a Western democratic state. All adult men and women who accept the fundamentals
of the constitution are entitled to vote in the election for the leader.
The basic qualifications for the election of an Amir are that he should command the
confidence of the largest number of people in respect of his knowledge and grasp of the
spirit of Islam; he should possess the Islamic attribute of fear of Allah; he should be
endowed with the quality of statesmanship. In short, he should be both able and
virtuous.
A Shura (consultative council), elected by the people, will assist and guide the Amir. It is
obligatory for the Amir to administer the country with the advice of his Shura. The Amir
can retain office only so long as he enjoys the confidence of the people, and must
resign when he loses this confidence. Every citizen has the right to criticise the Amir
and his Government, and all responsible means for the expression of public opinion
should be available.
Legislation in an Islamic state should be within the limits prescribed by the Shari‘ah. The
injunctions of Allah and His Prophet are to be accepted and obeyed and no legislative
body can alter or modify them or make any new laws which are contrary to their spirit.
The duty of ascertaining the real intent of those commandments which are open to more
than one interpretation should devolve on people possessing a specialised knowledge
of the law of Shari‘ah. Hence, such matters may have to be referred to a sub-committee
of the Shã r~ comprising men learned in Islamic law. Great scope would still be
available for legislation on questions not covered by any specific injunctions of the
Shari‘ah, and the advisory council or legislature is free to legislate in regard to these
matters.
In Islam the judiciary is not placed under the control of the executive. It derives its
authority directly from the Shari‘ah and is answerable to Allah. The judges will obviously
be appointed by the Government but, once appointed, will have to administer justice
impartially according to the law of Allah. All the organs and functionaries of the
Government should come within their jurisdiction: even the highest executive authority
of the Government will be liable to be called upon to appear in a court of law as a
plaintiff or defendant. Rulers and ruled are subject to the same law and there can be no
discrimination on the basis of position, power or privilege. Islam stands for equality and
scrupulously adheres to this principle in the social, economic and political realms alike.
This page is taken from http://www.jamaat.org

Usul Al Fiqa

Caricato da

Informazioni sul documento

Descrizione originale:

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Usul Al Fiqa

Caricato da

Copyright:

Formati disponibili

Islamic legal theory

From IVR encyclopedie

Sub-title 3: Qisas and Diyat Law

Sub-title 4: Ta`zir and Siyasah Penalties

Islamic Classical Legal Texts

Capital Punishment in Islam

See More About:

• Sign up for my Newsletter

New: CW Regulatory Watch

Find It With Peeplo

Sharia - Simple English Wikipedia, the free

Sharia - Wikipedia, the free encyclopedia

Strict Sharia Laws in

Sharia Laws will be great for America :: Reader

Between the Dream of America and the Islamic-

Pakistan Votes To Amend Strict Sharia Laws On

Oklahoma to Pass Laws Prohibiting Islamic Sharia

Oklahoma to Pass Laws Prohibiting Islamic Sharia

New: CW Regulatory Watch

Find It With Peeplo

Sharia - Simple English Wikipedia, the free

Sharia - Wikipedia, the free encyclopedia

American Thinker: Top ten reasons why sharia

Strict Sharia Laws in

Sharia Laws will be great for America :: Reader

Between the Dream of America and the Islamic-

Pakistan Votes To Amend Strict Sharia Laws On

Oklahoma to Pass Laws Prohibiting Islamic Sharia

Oklahoma to Pass Laws Prohibiting Islamic Sharia

New: CW Regulatory Watch

Sharia - Simple English Wikipedia, the free

Sharia - Wikipedia, the free encyclopedia

American Thinker: Top ten reasons why sharia

Strict Sharia Laws in

Sharia Laws will be great for America :: Reader

Between the Dream of America and the Islamic-

Pakistan Votes To Amend Strict Sharia Laws On

Oklahoma to Pass Laws Prohibiting Islamic Sharia

Oklahoma to Pass Laws Prohibiting Islamic Sharia

School(s) of Fiqh Hanafi majority, sizeable Shafi�i, Ja�fari and Isma�ili

Relevant Bihar & West Bengal Registration of Muhammedan Marriages

International ICCPR & ICESCR � accession 1979 with interpretative

(making war upon Allah and his messengers);

(false accusation of adultery or fornication);

GENERAL OVERVIEW OF ISLAMIC LAW

. The Five Pillars of the Islamic Religion

The Theory of Crime and Criminal

As we strive as Muslims to remain on the straight path, we need to discern

Ideology and faith Sayings

Behavior and manners Actions

Practical manners Concurrence with

The Arabic word fiqh means knowledge, understanding and comprehension.

Basis of Rulings Imams of schools of thought

Unanimity of Muslim scholars

Original rules Others: Al-Thawri, Ibn Abu-Lail, Al

Rulings of the Shari`ah

The recomended (mandub) is also referred to as sunnah, preferable

Nonperformance of both the disliked (makruh) and the unlawful/prohibited

Rulings of Sacred Law

Other Other terms: P: not rewarded P: not punished

Problem confronting the Muslim World

Distinction Between Shari'ah and Fiqh