Legal and court proceedings
Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law. Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and there is no jury system (as is found in civil law in countries such as Russia and France). There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents under the principle of stare decisis, and unlike civil law, sharia does not utilize formally codified statutes (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle). Instead of precedents and codes, sharia relies on jurists' manuals and collections of non-binding legal opinions, or hadith, (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.
There are three categories of crimes in sharia law, qisas, hudud, and tazir. Qisas involves personal injury and has several categories: intentional murder (first-degree), quasi-intentional murder (second-degree), unintentional murder (manslaughter), intentional battery, and unintentional battery. A qisas offense is treated as a civil case rather than an actual criminal case. If the accused party is found guilty, the victim (or in death, victim's family) determines the punishment, choosing either retribution (qesas-e-nafs), which means execution in the case of intentional murder, imprisonment, and in some cases of intentional battery, the amputation of the limb that was lost; or compensation (diyya) for the loss of life/limb/injury. The sharia judge (or, in modern sharia systems like those of Iran or Iraq, the state) can convict for and legally punish only qesas crimes on his own authority. However, the state itself may prosecute for crimes committed alongside the qisas offense. If the victim's family pardons the criminal, in addition to the sharia punishment he would normally receive a tazir prison sentence (such as ten to twenty years in prison) for crimes such as "intentional loss of life", "tazir assault and battery" "disturbance of the peace", and so forth.
The second category of crimes is hudud (or hadd). Hudud crimes are crimes whose penalties were laid down by the Quran, and are considered to be "claims against God". The hudud crimes are:
adultery (zina), which includes adultery, fornication, incest/pedophilia, rape, and pimping
apostasy/blasphemy
defamation (meaning false accusation of any of these things)
sodomy/lesbianism (or sodomy rape)
theft
use of intoxicants (alcohol/drug use)
"waging war against God and society" (hirabah, uniquely known as moharebeh/mofsed-e-filarz in Iran: armed robbery, terrorism, armed violence)
Hudud penalties for these cases are not punishments tailored to the offense, but are intended to be deterrents, setting an example for the general public and prosecuting the most flagrant violations. The process is extremely exacting: at least two witnesses are required to corroborate the evidence, with four witnesses required in the case of sex crimes, so that in most such cases the most severe penalties are difficult, if not impossible, to impose. Circumstantial evidence is not allowed to be part of the testimony. When the severest penalties are imposed, the case is usually so obvious, obscene or flagrant that conviction is virtually inevitable.
Very often, Westerners mistake hudud punishment for the punishment regularly given under sharia law, but that is inaccurate; hudud punishments are only meant as a deterrent for rare cases. Most punishments are given under tazir rules.
As a result most countries do not prosecute hudud offenses (the exceptions being Saudi Arabia and Afghanistan under the Taliban, which regularly managed to prosecute offenses in the hudud manner) Almost all other countries, such as Iran, would usually punish the same offense as a tazir crime.
The third category of crimes is tazir. It covers all other offenses not mentioned already. It is a "claim of the state" and it receives a discretionary sentence. The punishment may not be more severe than the punishment of a hudud crime. It can range, depending on the crime or circumstances, from death to imprisonment to even community service. Circumstantial evidence is allowed, and most countries prosecute their crimes as tazir crimes, due to the flexibility of the evidence-gathering and sentencing. The punishment is meant to fit the crime. For example, a rapist may not be able to be prosecuted for zina, but would still be convicted of tazir rape, or in theft, they would be found guilty of tazir theft and given prison time rather than amputation. A murderer would still spend time in prison if he had received the forgiveness of the family. The heavy hudud penalties of amputation and stoning are not applied (although some countries do use corporal punishment). Most modern countries such as Iran have a fixed penal code that regulate what sentences should be given depending on the crime and circumstances of the case.
The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony. A confession, an oath, or the oral testimony of a witness are the main evidence admissible in a hudud case, written evidence is only admissible when deemed reliable by the judge, i.e., notaries. Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character; testimony to establish the crime of adultery, or zina must be from four direct witnesses. Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases. Testimony from women is given only half the weight of men, and testimony from non-Muslims may be excluded altogether (if against a Muslim). Non-Muslim minorities, however, could and did use sharia courts, even amongst themselves.
Sharia's rules on written evidence necessarily diminish the utility of written contracts to structure economic relations, and Timur Kuran has noted the predominance of a "largely oral contracting culture" in pre-modern Islamic society.
In lieu of written evidence, oaths are accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff. Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often "maintain their testimony 'right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case." Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury; instead oaths are a solemn procedure performed as a final part of the evidence process.
In some countries, sharia courts, with their tradition of pro se representation, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, juries and voir dire proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings. This can provide significant increases in speed and efficiency, and can be an advantage in jurisdictions where the general court system is slow or corrupt, and where few litigants can afford lawyers. In Nigeria, where imposition of sharia was highly controversial, even Nigeria's justice minister was compelled to admit that in sharia courts, "if a man owes you money, you can get paid in the evening. Whereas in the regular courts, you can sit in court for ten years and get no justice." Other systems, such as those of Iran, Iraq, and Pakistan, use a civil sharia code similar to western countries, and do have defense attorneys, prosecutors, and appeals courts. They also have a supreme court, and a definite civil law style penal code, but are still heavily based on the informality and simplicity of a "pure" sharia court, and trials often still take a matter of hours or sometimes days.
Penalties
Hudud
Rajm, Islam and domestic violence, and Zina (Arabic)
The punishment depends on whether the criminal was convicted of qesas, hudud or tazir.
In a tazir crime, the penalty would be usually a prison sentence, corporal punishment in some countries, or a execution in a more serious case (such as a case that was not prosecuted as hudud, like rape/drug trafficking). Since hudud crimes are extremely hard to punish, this is the usual route that would be taken. Stoning and amputation would certainly not be carried out in a tazir sentence, and the punishment would not be fixed, but discretionary. Most countries have a civil code that regulates the penalties that should be received in a tazir crime, such as a death sentence in the case of drug trafficking, aggravated rape, or prison time in the case of other offenses.
In the rarest of rare case (more common in Saudi Arabia or Afghanistan ) when a person is convicted of a hudud crime, the punishment is much harsher.
In accordance with the Quran and several hadith, theft is punished by imprisonment or amputation of hands. Several requirements are in place for the amputation of hands, they are:
There must have been criminal intent to take private (not common) property.
The theft must not have been the product of hunger, necessity, or duress.
The goods stolen must: be over a minimum value, not haraam, and not owned by the thief's family.
Goods must have been taken from custody (i.e., not in a public place).
There must be reliable witnesses.
All of these must be met under the scrutiny of judicial authority.[Quran 5:38]
In accordance with hadith, stoning to death is the penalty for married men and women who commit adultery. In addition, there are several conditions related to the person who commits it that must be met. One of the difficult ones is that the punishment cannot be enforced unless there is a confession of the person, or four male eyewitnesses who each saw the act being committed. All of these must be met under the scrutiny of judicial authority For unmarried men and women, the punishment prescribed in the Quran and hadith is 100 lashes.
The "four witness" standard comes from the Quran itself, a revelation Muhammad announced in response to accusations of adultery leveled at his wife, Aisha: "Why did they not produce four witnesses? Since they produce not witnesses, they verily are liars in the sight of Allah."[Quran 24:13]
Punishments are authorized by other passages in the Quran and hadiths for certain crimes (e.g., extramarital sex, adultery), and are employed by some as rationale for extra-legal punitive action while others disagree:
“The woman and the man guilty of adultery or fornication—flog each of them with hundred stripes: Let no compassion move you in their case, in a matter prescribed by God, if ye believe in God and the last day.”[Quran 24:2] “Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).”[Quran 17:32]
Leaving Islam/Apostasy
Apostasy in Islam and Salman Rushdie
In most interpretations of sharia, conversion by Muslims to other religions or becoming non-religious, is strictly forbidden and is termed apostasy. Non-Muslims, however, are allowed to convert into Islam. Muslim theology equates apostasy to treason, and in most interpretations of sharia, the penalty for apostasy is death. During the time of Muhammad, treason and apostasy were considered one and the same; nowadays, many scholars differentiate between treason and apostasy, believing that the punishment for apostasy is not death, while the punishment for treason is death.
The accusation of apostasy may be used against non-conventional interpretations of the Quran. The severe persecution weasel words of the famous expert in Arabic literature, Nasr Abu Zayd, is an example of this. Similar accusations and persecutions weasel words were famously leveled against the author Salman Rushdie.
Dietary
Halal and Dhabiha
Islamic law does not present a comprehensive list of pure foods and drinks. However, it prohibits:
Swine, blood, the meat of dead animals and animals slaughtered in the name of someone other than God.
Slaughtering an animal in any other way except the prescribed manner of tazkiyah (cleansing) by taking God's name, which involves cutting the throat of the animal and draining the blood. Slaughtering with a blunt blade or physically ripping out the esophagus is strictly forbidden. Modern methods of slaughter like the captive bolt stunning and electrocuting are also prohibited. Causing the animal excessive pain during slaughter is a sin.
Intoxicants
The prohibition of dead meat is not applicable to fish and locusts. Also hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet, Jallalah (animals whose meat carries a stink in it because they feed on filth), tamed donkeys, and any piece cut from a living animal.
Liquor and gambling
Liquor and gambling are expressly prohibited in the Quran, and sharia law.
Muhammad is reported to have said: "He who plays with dice is like the one who handles the flesh and blood of swine."
Abd-Allah ibn Amr reported that Muhammad prohibited all games of chance and card playing that caused financial gain or loss.
Customs and behaviour
Islamic hygienical jurisprudence
Practitioners of Islam are generally taught to follow some specific customs in their daily lives. Most of these customs can be traced back to Abrahamic traditions in Pre-Islamic Arabian society. Due to Muhammad's sanction or tacit approval of such practices, these customs are considered to be Sunnah (practices of Muhammad as part of the religion) by the Ummah (Muslim nation). It includes customs like:
Saying "Bismillah" (in the name of God) before eating and drinking.
Using the right hand for drinking and eating.
Saying "As-Salaam Alaikum" (peace be upon you) when meeting someone and answering with "Wa 'alaikumus salam" (and peace be upon you).
Saying "Alhamdulillah" (all gratitude is for only God) when sneezing and responding with "Yarhamukallah" (God have mercy on you).
Saying the "Adhan" (prayer call) in the right ear of a newborn and the Iqama in its left.
In the sphere of hygiene, it includes:
Clipping the moustache
Cutting nails
Circumcising the male offspring
Cleaning the nostrils, the mouth, and the teeth and
Cleaning the body after urination and defecation
Abstention from sexual relations during the menstrual cycle and the puerperal discharge,[Quran 2:222] and ceremonial bath after the menstrual cycle, and Janabah (seminal/ovular discharge or sexual intercourse).[Quran 4:43][Quran 5:6]
Burial rituals include funeral prayer of bathed and enshrouded body in coffin cloth and burying it in a grave.
Rituals
Eid ul-Fitr and Eid al-Adha
There are two festivals that are considered Sunnah.
Eid ul-Fitr
Eid al-Adha
Rituals associated with these festivals:
Sadaqah (charity) before Eid ul-Fitr prayer.
The Prayer and the Sermon on Eid day.
Takbirs (glorifying God) after every prayer in the days of Tashriq. (Normally these days are considered to be the ones in which pilgrims stay at Mina once they return from Muzdalifah i.e., the 10th, 11th, 12th and 13th of Dhu al-Hijjah.)
Sacrifice of unflawed, four legged grazing animal of appropriate age after the prayer of Eid al-Adha in the days of Tashriq.
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