How Sharia Works?
Sharia or Islamic laws for both civil and penal spheres began to emerge as the new Muslim community grew after the “Hijra” (immigration of early Muslims from Mecca to Medina in 622 A. D.). Sharia became gradually more necessary for the Prophet to address complex questions of order and Islamic practice. Sharia, today, is institutionalised with the help of the following sources:
Some of the later texts of the Koran deal with limited issues, such as how to pray, what foods and activities to avoid, and how to consider basic relations within family circle and Muslim community. After the Prophet’s death, his successors, Islamic Caliphs, continued expanding into new territories and encountered new cultures and religious communities, the Muslim conquerers had to confront countless problems previously unknown. Since solutions to such problems were not written in the Koran or Hadith, Muhammad’s sayings, Muslim invaders had to improvise, exercising their personal judgement and acting as they believed the Prophet would have done. They strove to perpetuate Muhammad’s example; his “Sunna”.
II. Ijam or Consesus
Nevertheless, authorities and leaders in Medina, and later in other conquered territories, looked for ways to standardize the procedure of extending the application of the Koran and Hadith to changing circumstances. They gradually agreed that one could solve problems not treated directly in the Koran and Hadith by appealing to “actual practice” of the local community or to the “consensus” (Ijma).
III. Qias or Analogy
As time went on, since some questions were too new for any Ijma, scholars agreed that one could apply a form of reasoning by analogy (Qias) that followed strict rules so as to keep the process as free of personal whim as possible that is, comparing the new circumstances to similar ones during the times of the prophet).
Madhhabs or Four Roots
Leading local legal scholars in different cities devised slightly different formulas for using the four roots of the law (Koran, Hadith, Consensus, and Analogical Reasoning), some allowing greater latitude in appealing to the third and forth roots. Four legal methodologies dominant among Sunni Muslims came to be called the “schools” (Madhhabs), in Persian “Mazhab” , while several other distinctively Shiite schools were developed as well , inclusive of jurisprudence of Islamic regimes, especially the one in Iran since 1979. (http://en.wikipedia.org/wiki/Madhhab)
Who Orders Sharia?
Muslim specialists were promote into greater prominence because of their erudition, earning the title “Mujtehed”, a male Muslim who can exercise independent investigation of the Madhhabs. In Sunni tradition, the “door of independent investigation” was closed in Islam by the year 900 A. D, making further bold scholarship of the first level unnecessary. According to that classical view, the founders of the four major Sunni schools of legal theory were the last Mujtahids.
Sharia in Shiite sect
In the Shiite sect, the highest ranking Ayatollahs, meaning signs of Allah and title conferred on leading Shiite scholars, continue to exercise the authority of a Grand Ayatollah or a source of imitation in Shiite Islam: similat to a grand, Mufti, or a scholar in Sunni Islam. It is up to them to offer rulings on controversial or contemporary issues. If a new ethics and legal question arises – a question of artificial life support or some other thorny bio-medical matter, for example – these scholars would search the relevant sources to determine whether the Koran or Hadith might shed light on the precise issue at hand. If the scholar found only vague parallels that offer insufficient evidence to make a firm ruling on the new problem, he would then study further to see whether in the actual practice of Muslim communities there was an approach that might solve the problem. If the problem is too new to have any kind of useful history in the framework of Islam, the scholar might appeal to reasoning by Ijam (Reasoning), looking at links between old sources of Islam, practice and the new problem.
All sources may say nothing about artificial life support, but they have much to say about the nature of Islamic norms and about scholar’s authority to intervene. On the basis of this research, the scholar might then issue a legal advisory called a fatwa. In that statement he would indicate to which of five ethico-legal categories the proposed course of action (say, disconnecting life support in particular case) belonged: forbidden, discouraged, neutral, recommended, or required. See fatwa of death issued by Khomeini against the famous British writer Salman Rushdie for blasphemy and a series of death fatwas against other “enemies of Islam”.( http://en.wikipedia.org/wiki/List_of_fatwas)
In Sunni Islam, acting upon the advisory, the parties to the case might then choose to bring the matter before a religious judge (or a “Qadi”), himself authorised as a “ Grand Mufti” to adjudicate the matter. The outcome of all this study and interpretation is called Sharia, the divinely revealed law of life pre-scribed for all Muslims anywhere and anytime.
Penal code of Sharia
Within the sphere of penal law, death is warranted for apostasy, which was necessary to make the defeated territories and non-Muslims to convert to Islam. Highway robbery, sexual relation outside marriage of married offenders, met also traditionally death penalty. There is amputation of the hand for theft, 100 lashes for sexual relations, 80 lashes for the drinking of an intoxicant or for an unproved accusation of unchastity. Civil offences against the person – homicide for example, or assault – are punishable by retaliation, with the offender subjected to the same treatment as the victim. In such civil cases, only the victim or his family has right to prosecute since the crime is not considered being against the state. Often, the victim will choose monetary compensation (Diyah, “blood money”) in place of retaliation — see the jurisprudence of the Islamic regime in Iran). Iran, Sudan, Afghanistan under Taliban impose today the traditional penalties as originally enjoined.
Sharia under Islamic regimes
Islam describes Sharia as total way of life, a comprehensive approache that such an all-encompassing way of life must ultimately be realised under an Islamic state. Therefore, not only in Islamic communities, but more officially under Islamic regimes, draconian Sharia is practiced. Political Islam refers to early Muslim community, Umma, life under Prophet Muhammad’s leadership in Medina. This is the model for Shari’a. This, off course, can inevitably lead to the same totalitarian reign of Muhammad’s Islamic model. For example the extremely backward and brutal Taliban, Islamic regime in Iran, al Bashir’s Islamic regime in Sudan…all follow Sharia thus institutionalising a set of criteria, mostly penal code, derived or inspired from those of 14-century-old clan society of Arabia.