Schools of thougts
Legal scholar L. Ali Khan claims that "the concept of sharia has been thoroughly confused in legal and common literature. For some Muslims, sharia consists of the Quran and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define sharia as law based upon the Quran, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of sharia lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Quran and the Sunnah. The Quran and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to dissipate confusion around the term sharia."
Revival of the religion
Simultaneously with liberalizing and modernizing forces, trends towards fundamentalism and movements for Islamic political power are also taking place. There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.
A return to traditional views of sharia: There is a long-running worldwide movement underway by Muslims towards a better understanding and practice of their religion. Encouraged by their scholars and imams, Muslims have moved away from local customs and culture, and towards more universally accepted views of Islam. This movement towards traditional religious values served to help Muslims cope with the effects of European colonization. It also inspired modernist movements and the formation of new governments.
The Islamist movement: Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and sharia within their own borders, their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power. Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey's secular government. These movements can be considered neo-Sharism.
The Fundamentalist movement: Fundamentalists, wishing to return to basic religious values and law, have in some instances imposed harsh sharia punishments for crimes, curtailed civil rights, and violated human rights. These movements are most active in areas of the world where there was contact with Western colonial powers.
Extremism: Extremists have used the Quran and their own particular version of sharia to justify acts of war and terror against Western individuals and governments, and also against other Muslims believed to have Western sympathies. Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.
Immutability of God's will
Although there are many different interpretations of sharia, and differing perspectives on each interpretation, there is consensus among Muslims that sharia is a reflection of God's will for humankind. Sharia must therefore be, in its purest sense, perfect and unchanging. The evolution or refinement of sharia is an effort to more perfectly reflect God's will.
Distinction between sharia and customary law
According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high ranking religious authorities have stated the opposite." Otto's analysis appears in a paper commissioned by the Netherlands Ministry of Foreign Affairs.
Characteristics
Origins
According to Muslims, sharia law is founded on the words of Allah as revealed in the Quran, and traditions gathered from the life of the Prophet Muhammad. Muhammad was born ca. 570 CE in Mecca, a trading city in the Arabian desert. In addition to being a center of trade on the caravan routes, Mecca was a place of pilgrimage for Arabs of many beliefs. The focus of religion in Mecca was the Ka'aba, a stone building believed to have been built by Adam at the beginning of time, and rebuilt by the Prophet Abraham and his son Ishmael.
Mecca was inhabited by the Quraysh, a mostly pagan tribe with some Jews and Christians among them. Muhammad was orphaned at an early age, and came under the protection of an uncle. He grew up to become a trader and married his employer, a prosperous merchant named Khadija. It was in middle age that Muhammad began to speak of revelations received from Allah through the angel Gabriel. Muhammad told others of his revelations, and attracted followers who transcribed them onto available materials. Over the twenty three years from his first revelation until his death, Islam became the dominant force in the Arabian peninsula and Somalia, and a serious challenge to the Byzantine and Sasanian empires. After Muhammad's death, the revelations were collected and organized into the Quran, and accounts of his life eventually formed the basis for the Sunnah.
In pre-Islamic Arabia, bonds of common ancestry formed the basis for tribal association. The advent of Islam brought the tribes together under a single religion. As Islam is not just a religion, but also a complete way of life, a new common basis of law and personal behavior (Sharia) began to take shape.
Sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44), during which time many questions were brought to the attention of Muhammad's closest comrades for consultation.During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law. Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.
Among the Muslims, tribal laws were adapted to conform to sharia "for they could not form part of the tribal law unless and until they were generally accepted as such." Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that "to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations." So, while "each and every law must be rooted in either the Qur'an or the Sunnah," without contradiction, tribal life brought about a sense of participation. Such participation was further reinforced by Muhammad who stated, "My community will never agree in error".
Fiqh
Islamic jurisprudence
The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[63] Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi'i (767–820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Quran and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.
A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.
Categories of human behavior
Fiqh classifies behavior into the following types or grades: fard (obligatory), mustahabb (recommended), mubah (neutral), makruh (discouraged), and haraam (forbidden). Every human action belongs in one of these five categories
Actions in the fard category are those required of all Muslims. They include the five daily prayers, fasting, articles of faith, obligatory charity, and the hajj pilgrimage to Mecca.
The mustahabb category includes proper behavior in matters such as marriage, funeral rites and family life. As such, it covers many of the same areas as civil law in the West. Sharia courts attempt to reconcile parties to disputes in this area using the recommended behavior as their guide. A person whose behavior is not mustahabb can be ruled against by the judge.
All behavior which is neither discouraged nor recommended, neither forbidden nor required is of the Mubah; it is permissible.
Makruh behavior, while it is not sinful of itself, is considered undesirable among Muslims. It may also make a Muslim liable to criminal penalties under certain circumstances.
Haraam behavior is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Quran. Certain Muslim dietary and clothing restrictions also fall into this category.
The recommended, permissible and discouraged categories are drawn largely from accounts of the life of the Islamic Prophet Muhammad. To say a behavior is sunnah is to say it is recommended as an example from the life and sayings of Muhammad. These categories form the basis for proper behavior in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.
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