There are many different opinions, however, as to whether the veil or headscarf is a real Quranic obligation. Some scholars such as Yusuf al-Qaradawi claim it is, while others, such as Mohammed Arkoun, Soheib Bencheikh, Abdoldjavad Falaturi, Gamal al-Banna claim it is not. However, the first group appears dominant: "Jamal al Banna has been for a number of years one of the few mainstream Muslim scholars to argue that the Muslim headscarf, or hijab, is not an Islamic obligation."
Historical developments and contemporary issues
Map of the Muslim world with the main schools of Islamic law (madhhab)
During the 19th century, the history of Islamic law took a sharp turn due to new challenges the Muslim world faced: the West had risen to a global power and colonized a large part of the world, including Muslim territories. In the Western world, societies changed from the agricultural to the industrial stage, new social and political ideas emerged, and social models slowly shifted from hierarchical towards egalitarian. The Ottoman Empire and the rest of the Muslim world were in decline, and calls for reform became louder. In Muslim countries, codified state law started replacing the role of scholarly legal opinion. Western countries sometimes inspired, sometimes pressured, and sometimes forced Muslim states to change their laws. Secularist movements pushed for laws deviating from the opinions of the Islamic legal scholars. Islamic legal scholarship remained the sole authority for guidance in matters of rituals, worship, and spirituality, while they lost authority to the state in other areas. The Muslim community became divided into groups reacting differently to the change. This division persists until the present day (Brown 1996, Hallaq 2001, Ramadan 2005, Aslan 2006, Safi 2003, Nenezich 2006).
Secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines.
Traditionalists believe that the law of the state should be based on the traditional legal schools. However, traditional legal views are considered unacceptable by some modern Muslims, especially in areas like women's rights or slavery.
Reformers believe that new Islamic legal theories can produce modernized Islamic law[ and lead to acceptable opinions in areas such as women's rights. However, traditionalists believe that any departure from the legal teachings of the Quran as explained by the Prophet Muhammad and put into practice by him is an alien concept that cannot properly be attributed to "Islam".
Contemporary practice
There is tremendous variety in the interpretation and implementation of Islamic law in Muslim societies today. Liberal movements within Islam have questioned the relevance and applicability of sharia from a variety of perspectives; Islamic feminism brings multiple points of view to the discussion. Some of the largest Muslim countries, including Indonesia, Bangladesh and Pakistan, have largely secular constitutions and laws, with only a few Islamic law provisions in family law. Turkey has a constitution that is officially strongly secular. India and the Philippines are the only countries in the world that have separate Muslim civil laws, wholly based on sharia. In India, Muslim civil laws are framed by the Muslim Personal Law board while, in the Philippines, it is framed by the Code of Muslim Personal Laws. However, the criminal laws in both the countries are uniform.
In September 2008, newspapers in the United Kingdom stated the government had "quietly sanctioned" the recognition of sharia courts. This refers to situations where both sides in a legal dispute freely choose a sharia court as a binding arbitrator rather than taking a matter before the official courts. The decision did not break new ground: the decisions of similar Jewish beth din court arbitrations have been recognized in England for over 100 years. Neither party can be forced into arbitration by a sharia or a Jewish court.
Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and the Mutaween (religious police) assert social compliance, while Somaliland, and Maldives adopted sharia in legal aspects but with westrn style of judiciary system (Common law or civil law). Laws derived from sharia are also applied in Afghanistan, Libya and Sudan. Sharia law is officially recognised by the justice system in Israel in matters of personal status of Muslims if they choose a sharia court, e.g., marriage, divorce, guardianship.) Judges' salaries are paid by the state. Lebanon also incorporates sharia law for Muslims in family matters.Some states in northern Nigeria have reintroduced sharia courts. In practice the new sharia courts in Nigeria have most often meant the reintroduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery.
Many, including the European Court of Human Rights, consider the punishments prescribed by sharia in some countries to be barbaric and cruel. Islamic scholars argue that, if implemented properly, the punishments serve as a deterrent to crime. In international media, practices by countries applying Islamic law have fallen under considerable criticism at times. This is particularly the case when the sentence carried out is seen to greatly tilt away from established standards of international human rights. This is true for the application of the death penalty for the crimes of adultery, blasphemy, apostasy and homosexuality, amputations for the crime of theft, and flogging for fornication or public intoxication.
A bill proposed by lawmakers in the Indonesian province of Aceh would implement sharia law for all non-Muslims, the armed forces and law enforcement officers, a local police official has announced. The news comes two months after the Deutsche Presse-Agentur warned of "Taliban-style Islamic police terrorizing Indonesia's Aceh".
Contemporary issues
Democracy
Further information: Islamic ethics, Islam and democracy, Shura, and Ijma
Sharia law involves elements of a democratic system, namely electoral procedure, though syntax as to what a "democracy" constitutes leaves this in question. Legal scholar L. Ali Khan argues that "constitutional orders founded on the principles of sharia are fully compatible with democracy, provided that religious minorities are protected and the incumbent Islamic leadership remains committed to the right to recall".
However, European and American courts have generally ruled against the implementation of Sharia law, both in jurisprudence and within a community context, based of Sharia's religious background. Whereas groups within a number of nations are actively seeking to implement Sharia law, in 1998 the Constitutional Court of Turkey banned and dissolved Turkey's Refah Party on the grounds that "Democracy is the antithesis of Sharia", which latter of which Refah sought to introduce.
On appeal by Refah the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy".Refah's sharia-based notion of a "plurality of legal systems, grounded on religion" was ruled to contravene the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was determined that it would "do away with the State's role as the guarantor of individual rights and freedoms" and "infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy".
Human rights
Cairo Declaration on Human Rights in Islam
Several major, predominantly Muslim countries criticized the Universal Declaration of Human Rights (UDHR) for its perceived failure to take into account the cultural and religious context of non-Western countries. Iran claimed that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. Therefore in 1990 the Organisation of the Islamic Conference, a group representing all Muslim majority nations, adopted the Cairo Declaration on Human Rights in Islam.
Ann Elizabeth Mayer points to notable absences from the Cairo Declaration: provisions for democratic principles, protection for religious freedom, freedom of association and freedom of the press, as well as equality in rights and equal protection under the law. Article 24 of the Cairo declaration states that "all the rights and freedoms stipulated in this Declaration are subject to the Islamic shari'a".
Professor H. Patrick Glenn asserts that the European concept of human rights developed in reaction to an entrenched hierarchy of class and privilege contrary to, and rejected by, Islam. As implemented in sharia law, protection for the individual is defined in terms of mutual obligation rather than human rights. The concept of human rights, as applied in the European framework, is therefore unnecessary and potentially destructive to Islamic societies.
Many secularist, human rights, and leading organisations have criticized Islamic states' stance on human rights. In 2009, the journal Free Inquiry summarized this criticism in an editorial: "We are deeply concerned with the changes to the Universal Declaration of Human Rights by a coalition of Islamic states within the United Nations that wishes to prohibit any criticism of religion and would thus protect Islam's limited view of human rights. In view of the conditions inside the Islamic Republic of Iran, Egypt, Pakistan, Saudi Arabia, the Sudan, Syria, Bangdalesh, Iraq, and Afghanistan, we should expect that at the top of their human rights agenda would be to rectify the legal inequality of women, the suppression of political dissent, the curtailment of free expression, the persecution of ethnic minorities and religious dissenters — in short, protecting their citizens from egregious human rights violations. Instead, they are worrying about protecting Islam."
Freedom of speech
Islamic ethics#Freedom of expression, Jyllands-Posten Muhammad cartoons controversy, Blasphemy laws of the Islamic Republic of Iran, and Blasphemy law in Pakistan
Qadi 'Iyad argues that sharia does not allow freedom of speech in such matters as criticism of Muhammad. Such criticism is blasphemy and punishable by death.
Slander, gossip, and backbiting, or "ghiba" is regarded as a major sin.
Homosexuality
Homosexuality and Islam
Homosexual activity is illegal under sharia, though the prescribed penalties differ from one school of jurisprudence to another. For example, these Muslim-majority countries may impose the death penalty for sodomy and homosexual activities: Iran,Nigeria, Saudi Arabia, Somalia. In contrast, in some Muslim-majority countries such as Indonesia (outside of Aceh province), Jordan, Egypt and Iraq, same-sex sexual acts are illegal but there is no specific penalty. In Turkey, homosexual acts in private between consenting individuals are legal.
Women
Women in Islam
In terms of religious obligations, such as certain elements of prayer, payment of the zakat poor-tax, observance of the Ramadan fast, and the Hajj pilgrimage, women are treated no differently from men. There are, however, some exceptions made in the case of prayers and fasting, as women are relieved from the duty of the five daily prayers or fasting during their menstruation.
There are no priests or clergy needed in order to perform rites and sacraments in Islam. The leader of prayer is known as an imam. Men can lead both men and women in prayer, but women do not traditionally lead men in prayer. In practice, it is much more common for men to be scholars than women, however in the early days of Islam, female scholars were much more common. Islam does not prohibit women from working, as it says, "Treat your women well and be kind to them for they are your partners and committed helpers." Married women may seek employment although it is often thought in patriarchal societies that the woman's role as a wife and mother should have first priority.
Islam unequivocally allows both single and married women to own property in their own right. Islam grants women the right to inherit property from other family members, and these rights are detailed in the Quran. A woman's inheritance is different from a man's, both in quantity and attached obligations.[Quran 4:12] For instance, a daughter's inheritance is usually half that of her brothers.[Quran 4:11] Sharia law requires family members females or males to support each other as needed; compare female inheritance in Salic law. Men are fully obliged to financially maintain their household, whereas women are not; it is often said that even if the woman is a millionaire and he is poor, he is still obliged to spend on her. She is not obliged to share her wealth with her husband unless she does so out of kindness.
Islamic jurists have traditionally held that Muslim women may enter into marriage with only Muslim men, although some contemporary jurists question the basis of this restriction. On the other hand, the Quran allows a Muslim man to marry a chaste woman from the People of the Book, a term that includes Jews, Sabians, and Christians.[Quran 5:5] However, fiqh law[which?] has held that it is makruh (reprehensible) for a Muslim man to marry a non-Muslim woman in a non-Muslim country.
In 2003, a Malaysian court ruled that, under sharia law, a man may divorce his wife via text messaging as long as the message was clear and unequivocal.
The divorced wife always keeps her dowry from when she was married, and is given child support until the age of weaning. The mother is usually granted custody of the child. If the couple has divorced fewer than three times (meaning it is not a final divorce) the wife also receives spousal support for three menstrual cycles after the divorce, until it can be determined whether she is pregnant.
Ma malakat aymanukum
Women's rights
Status of women under Islamic law prior to the 19th century
Islamic law grants women some legal rights they did not have under Western legal systems until the 19th and 20th centuries. Noah Feldman, a Harvard University law professor, has noted:
As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them – hardly progress toward equality of the sexes.
Status of women under Islamic law since the 19th century
At this point in history the aforementioned exploration of freedom is no longer true — that is to say that whilst it is arguable that women had more extensive legal rights under Islamic law than they did under Western legal systems in the past, it is no longer true today.
Slavery and emancipation
Islam and slavery
The major juristic schools of Islam have traditionally accepted the institution of slavery. However, Islam has prescribed five ways to free slaves, has severely chastised those who enslave free people, and regulated the slave trade. The source of slaves was restricted to war in preference to killing whole tribes en masse, as was the tradition at the time. Slaves also had more rights under Islam as an owner could not mistreat them. Many slaves were freed after a certain period of time, if they accepted to convert to Islam, or if they were ransomed.
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