Download Comparative Law slides March 30 2006 islamic law

Comparative Law 2006
Islamic Law
Class of March 30, 2006
Meaning of Islam
• The word Islam means submission or
surrender to Allah’s will.
• Over 1.2 billion Muslims worldwide
(around 20% of world’s population).
• 19 nations have declared Islam in
constitutions
• 35 nations have over 50% Muslims and
another 21 have large Muslim populations
Founding of Islam
• Who founded Islam and when?
Founding of Islam
• The prophet Muhammed founded the
Islamic religion in the 7th century.
• In 622 AD he founded the first Islamic
state, a theocracy in Medina, now Saudi
Arabia (located north of Mecca),
Five Pillars of Islam
• Faith or belief in the Oneness of God and the
finality of the prophethood of Muhammad;
• Daily prayers five times per day;
• Concern for and almsgiving to the needy zakah;
• Self-purification through fasting in month of
Ramadan (daylight hours);
• The pilgrimage to Mecca for those who are able
hajj.
What are the two main branches of
Islam?
2 Main Branches
• Sunni branch (90% of Muslim world) –
believe that first four caliphs
(Mohammed’s successors) rightfully took
his place as leaders of Muslims.
• Shiite branch – believe that only the heirs
of the fourth caliph, Ali, are the legitimate
successors of Mohammed. Believe in
divine appointment of a leader or Imam
Ottoman Empire
• The heirs of the first four caliphs ruled
continuously in the Arab world until the
Ottoman Empire broke up after the First
World War. This was a devastating blow
to many Sunni Muslims who perceived the
caliph as the guardian of Islamic law and
the Islamic state.
• Result – rise of Sunni fundamentalist
movements in various countries, eg. Egypt
Shari’a
• What is Shari’a?
Shari’a
• What is Shari’a? It means the “way” or
“path to follow” and is the body of Islamic
law. Applies only to Muslims
• Substance of shari’a is found in Fiqh (Fikh)
meaning “understanding” – it is the
inferences drawn by scholars as opposed
to the shari’a principles that lie behind it.
Shari’a
• Comprehensive nature of the shari’a law is
based on belief that law must provide all
that is necessary for physical and spiritual
well-being of a person. No separation of
Church and State
• Possible actions of a Muslim can be:
obligatory, meritorious, permissible,
reprehensible, forbidden
Sources of Islamic Law
• Koran – sacred book, literally “the
Reading” (a source for both Sunnis and
Shiites)
Primary sources of law for Sunnis
•
•
•
•
Koran
Hadith
Ijma
Qiyas
Primary sources of law for Shiites
• Koran
• Anecdotes of Prophet’s practices and
those of the 12 Imams
• Intellect (aql)
• Also have roots in local customs (Al-urf)
Elimination of Ijtihad
• What is ijtihad
• How/When was the door closed?
Elimination of Ijtihad
• What is ijtihad? = Endeavour or effort
• How/When was the door closed?
informally
What is the Role of the individual in
Shari’a
• Is there concern for the individual person?
• Does shari’a guarantee equality?
• Is there a tradition of human rights in
islamic law?
Variety of Laws in Muslim societies
• Some countries with large Muslim
populations, e.g. Indonesia, Bangladesh,
Pakistan, have largely secular
constitutions and laws with only a few
Islamic provisions in family laws
Other varieties
• Most countries in middle east and North Africa
have dual system of secular courts and religious
courts (for marriage and inheritance)
• Iran and Saudi Arabia have religious courts for
most or all aspects of jurisprudence
• Some states in Northern Nigeria have
reintroduced shari’a courts with relatively harsh
punishments
Judges in Islamic Law
• Common myth – that no judges.
• Historically Islamic judge (Qazi or Qadi)
was a legal secretary appointed by
provincial governments. Now selection of
judges varies in different countries
Shari’a, Crime and Punishment
• Deterrent punishments
• Some of the most serious crimes have harsh
fixed punishments stated in Koran (hadd crimes
against God’s law), e.g. murder, apostasy from
Islam, theft, adultery
• Tazir crimes lesser crimes against society do
not have fixed punishments
• Quesas crimes – where victim hasthe right to
seek retribution and retaliation
• Much variety in criminal laws in different
countries
Dietary Laws
• Muslims can only eat meat that has been
slaughtered in name of God in a particular
way and meets stringent dietary
requirements (halal)
• Cannot eat pork
Role of Women Under Shari’a
• Marriage – by consent, polygamy
permitted though abolished in some
jurisdictions e.g. Tunisia
• Islamic law forbids Muslims to marry nonMuslims unless they convert to Islam
• Divorce –by talaq though state
proceedings vary some provide for judicial
divprce
• Dress codes – vary in different countries
Other Islamic Family Law
• Adoption does not exist – why?
• Disposition by will limited to 1/3 of property
• Women do not share with equally with
men
Islamic Property Law
• Similar to western law in recognizing
private property and state property
• What is the waqf?
• What is the zakat?
Islamic Law of Obligations and
Commercial Law
• How does ethic of zakat influence Islamic
commercial law and law of obligations?
Islamic Law of Obligations and
Commercial Law
• Also has ethic of zakat
• Consensual law of contract
• Corporate personality, prohibition of riba
(interest or usury) some insurance
contracts not permitted due to
disproportionate return to insured without
assumption of risk and speculation
Freedom of Speech
• Shari’a does not allow freedom of speech
on some matters, such as criticism of the
prophet Muhammed
Apostasy
• In most interpretations of shari’a
conversion by Muslims to other religions is
forbidden and amounts to treason –
penalty is death
Change and Islamic Law
• Can change occur?
• If so, how?
Jihad
• What does the word mean?
• How aggressive can it be?
• To what extent do the dhimmi limit an
aggressive form of jihad?