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91-419: Traditional sharia courts, unlike modern Western courts, do not use jury or prosecutors on the behalf of society. Crimes against God are prosecuted by the state as hudud crimes, and all other criminal matters, including murder and bodily injury, are treated as disputes between individuals with an Islamic judge deciding the outcome based on sharia fiqh such as Hanafi, Maliki, Shafi'i, Hanbali and Jafari followed in

182-719: A changing world has become an increasingly debated topic in Islam. Beyond sectarian differences , fundamentalists advocate the complete and uncompromising implementation of "exact/pure sharia" without modifications, while modernists argue that it can/should be brought into line with human rights and other contemporary issues such as democracy, minority rights , freedom of thought , women's rights and banking by new jurisprudences. In Muslim majority countries, traditional laws have been widely used with or changed by European models. Judicial procedures and legal education have been brought in line with European practice likewise. While

273-415: A classroom or consulted by judges. A mabsut , which usually provided a commentary on a mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions. The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance. At

364-457: A jurist's mentality in finding a solution to a legal question in contrast with taqlid ( conformity to precedent ijtihad). According to theory, ijtihad requires expertise in the Arabic language, theology, religious texts, and principles of jurisprudence ( usul al-fiqh ), and is not employed where authentic and trusted texts ( Qur'an and hadith ) are considered unambiguous with regard to

455-552: A life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retaliation;' but whoso remits it, it is an expiation for him, but he whoso will not judge by what God has revealed, these be the unjust. Tazir includes any crime that does not fit into Hudud or Qisas and which therefore has no punishment specified in the Quran. Tazir in Islamic criminal jurisprudence are those crimes where

546-402: A local master and discuss religious topics. At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles. As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as

637-411: A middle way between the two attitudes such as Abu al-Hasan al-Ash'ari in theology (syncretists). In the classical age of Islam, there were violent conflicts between rationalists (aqliyyun; al-muʿtazila , kalamiyya ) and traditionalist (naqliyyun, literalists, Ahl al-Hadith ) groups and sects regarding the Quran and hadith or the place of reason in understanding the Quran and hadith, as can be seen in

728-598: A model ( sunnah ) and transmitted this information to the succeeding generations in the form of hadith . These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifa , Malik ibn Anas , al-Shafi'i , and Ahmad ibn Hanbal , who are viewed as the founders of the Hanafi , Maliki , Shafiʿi , and Hanbali legal schools ( madhāhib ) of Sunni jurisprudence. Modern historians have presented alternative theories of

819-416: A place and He is everywhere." Judgment that concerns individuals is personal and, for example, in an Islamic Qisas or compensation decisions, jurist must take into account "personal labels" such as the gender , freedom , religious and social status such as mu'min , kafir , musta'min , dhimmi , apostate , etc. Similar distinctions also apply to witnessing practices, which have a fundamental value in

910-399: A rule , there was a hierarchy and power ranking among the sources of Sharia; for example, a subcategory or an auxiliary source will not be able to eliminate a provision clearly stated in the main source or prohibit a practice that was not prohibited though it was known and practiced during the prophetic period. If we look at an example such as the abolition of the validity of Mut'a marriage ,

1001-543: A sequence of such smaller topics, each called a "book" ( kitab ). The special significance of ritual was marked by always placing its discussion at the start of the work. Some historians distinguish a field of Islamic criminal law , which combines several traditional categories. Several crimes with scripturally prescribed punishments are known as hudud . Jurists developed various restrictions which in many cases made them virtually impossible to apply. Other crimes involving intentional bodily harm are judged according to

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1092-605: A source of law in place of qiyas and extension of the notion of sunnah to include traditions of the imams . Islamic scholar Rashid Rida (1865–1935 CE) lists the four basic sources of Islamic law, agreed upon by all Sunni Muslims : "the [well-known] sources of legislation in Islam are four: the Qur'an , the Sunnah , the consensus of the ummah and ijtihad undertaken by competent jurists" While traditional understanding strongly denies that Quran may have changed ( Al Hejr :9),

1183-504: A specified period, write it down. Let a scribe write it down between you with justice. Let the scribe not refuse to write as Allah has taught him, but let him write it down. And whoever incurs a debt, let him record it and let him fear his Lord and pay his debt." If the debtor is unsound, or weak, or helpless, or is unable to dictate, let his guardian dictate in fairness; and if there are not two men, one man and two women, whom you may accept with your consent. So that if he gets confused/forgets,

1274-405: A version of lex talionis that prescribes a punishment analogous to the crime ( qisas ), but the victims or their heirs may accept a monetary compensation ( diya ) or pardon the perpetrator instead; only diya is imposed for non-intentional harm. Other criminal cases belong to the category of taʿzīr , where the goal of punishment is correction or rehabilitation of the culprit and its form

1365-587: A whole Islamic community consensus, or ijma al-aimmah ( Arabic : إجماع الائـمـة ) – a consensus by religious authorities ), and analogical reasoning . Four legal schools of Sunni Islam — Hanafi , Maliki , Shafiʽi and Hanbali — developed methodologies for deriving rulings from scriptural sources using a process known as ijtihad (lit. mental effort). Traditional jurisprudence distinguishes two principal branches of law, rituals and social dealings ; subsections family law , relationships (commercial, political / administrative ) and criminal law , in

1456-560: A wide range of topics. Its rulings are concerned with ethical standards as much as legal norms, assigning actions to one of five categories : mandatory , recommended , neutral , abhorred , and prohibited . Over time with the necessities brought by sociological changes, on the basis of mentioned interpretative studies legal schools have emerged, reflecting the preferences of particular societies and governments, as well as Islamic scholars or imams on theoretical and practical applications of laws and regulations. Although sharia

1547-509: Is "specific to" a person, group, institution, event, situation, belief and practice in different areas of life, and usually includes the approval/disapproval of a judgment, is called fatwa . Tazir penalties , which are outside the Qisas and Hudud laws, have not been codified, and their discretion and implementation are under the initiative and authority of the judge or political authority. Mustafa Öztürk points out some another developments in

1638-410: Is a sin or a crime to perform a forbidden action or not to perform a mandatory action. Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court. Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgment from God. Jurists disagree on whether the term ḥalāl covers

1729-401: Is insufficient to distinguish right from wrong , and rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad. In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus ( ijmaʿ ) and analogical reasoning ( qiyas ). It therefore studies

1820-459: Is largely left to the judge's discretion. In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to Sharia. The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary). Mukhtasars were short specialized treatises or general overviews that could be used in

1911-419: Is often stated today that Sharia provides many rights to slaves and aims to eradicate slavery over time. However, the widespread use of slavery in the Islamic world continued until the last century, and jurists had no serious objections to the castration of slaves and the unrestricted sexual use of female slaves, with a few exceptions in traditional islamic jurisprudence. A special religious decision, which

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2002-433: Is ordained for you regarding the people who were killed. Free versus free, slave versus slave, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well." Modern historians generally adopt intermediate positions regarding origins, suggesting that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by

2093-426: Is presented as a form of governance in addition to its other aspects (especially by the contemporary Islamist understanding ), some researchers see the early history of Islam , which has been modelled and exalted by most Muslims, not as a period when sharia was dominant, but a kind of " secular Arabic expansion ". Approaches to sharia in the 21st century vary widely, and the role and mutability of sharia in

2184-523: Is the first of Four Doors and the lowest level on the path to God in Sufism and in branches of Islam that are influenced by Sufism, such as Ismailism and Alawites . It is necessary to reach from Sharia to Tariqa , from there to Ma'rifa and finally to haqiqa . In each of these gates, there are 10 levels that the dervish must pass through. Jan Michiel Otto summarizes the evolutionary stages of understanding by distinguishing four meanings conveyed by

2275-408: Is tied to the testimony of 4, and 2 males for other hudud cases. The rules of evidence in Islamic criminal law exclude all men who lack credibility in society (non-adl) who commit major sins ( fasiq ), or slaves. In other cases, the testimony of women is accepted as 1 man + 2 women, provided that there is at least one man present as a witness. "O people of faith! When you lend money to each other for

2366-507: Is touched upon in the Quran 4:24 , and not prohibited (Sunnis translate the words used in the relevant verse with terms used to describe the ordinary marriage event) according to Sunnis is banned by Muhammad towards the end of his lifetime, and according to Shiites , by Omar , "according to his own opinion" and reliying on power. The Shiite sect did not accept the jurisprudence of Omar, whose political and religious authority they rejected from

2457-461: Is traditionally divided into ʿibādāt (rituals or acts of worship) and muʿāmalāt (social relations). Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries. Each of these terms figuratively stood for a variety of subjects. For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics. Juristic works were arranged as

2548-566: Is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality. For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean "our religion" in reference to any monotheistic faith. Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims. For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to Sharia. Sharia

2639-464: The Sunnah . The offenses incurring hudud punishments are zina (unlawful sexual intercourse), unfounded accusations of zina , consuming intoxicants, highway robbery, and some forms of theft. Jurists have differed as to whether apostasy and rebellion against a lawful Islamic ruler are hudud crimes. Hudud punishments range from public lashing to publicly stoning to death, amputation of hands and crucifixion. Hudud crimes cannot be pardoned by

2730-520: The Hanafi , Maliki , Shafi'i and Hanbali madhhabs. They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab. These four schools recognize each other's validity and they have interacted in legal debate over the centuries. Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of

2821-458: The Hebrew term Halakhah ["The Way to Go"]), or "path to the water hole" and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment. In the Quran, šarīʿah and its cognate širʿah occur once each, with the meaning "way" or "path". The word šarīʿah was widely used by Arabic-speaking Jews during

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2912-480: The Islamic creed , leading changes in ahkam such as determining the conditions of takfir according to theologians ; First Muslims believed that God lived in the sky as Ahmad Ibn Hanbal says: "Whoever says that Allah is everywhere is a heretic , an infidel, should be invited to repent, but if he does not, be killed." This understanding changes later and gives way to the understanding that "God cannot be assigned

3003-578: The Mihna example. Although the rationalists initially seemed to gain the upper hand in this conflict, with the rise of literalism, the Mutazila sank into history and literalism continued to live by gaining supporters. In this context, the formulation of the Sunni view can be summarized as follows; Human reason is a gift from God which should be exercised to its fullest capacity. However, use of reason alone

3094-543: The Ottoman Empire , and is from the Turkish şer'(i) . According to the traditionalist ( Atharī ) Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development" and the emergence of Islamic jurisprudence ( fiqh ) also goes back to the lifetime of Muhammad. In this view, his companions and followers took what he did and approved of as

3185-491: The Qur'an and hadith . In Islamic terminology sharīʿah refers to immutable, intangible divine law ; contrary to fiqh , which refers to its interpretations by Islamic scholars . Sharia, or fiqh as traditionally known, has always been used alongside customary law from the very beginning in Islamic history ; has been elaborated and developed over the centuries by legal opinions issued by qualified jurists -reflecting

3276-441: The Islamic jurisdiction. In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia. In the modern era, sharia-based criminal laws were widely replaced by statutes inspired by European models, although in recent decades several countries reintroduced elements of Islamic penal law into their legal codes under

3367-685: The Middle Ages, being the most common translation for the word Torah in the 10th-century Arabic translation of the Torah by Saʿadya Gaon . A similar use of the term can be found in Christian writers. The Arabic expression Sharīʿat Allāh ( شريعة الله ' God's Law ' ) is a common translation for תורת אלוהים ( ' God's Law ' in Hebrew) and νόμος τοῦ θεοῦ ( ' God's Law ' in Greek in

3458-417: The Muslim public that the so-called "gate of ijtihad " was closed at the start of the classical era. Starting from the 18th century, Islamic reformers began calling for abandonment of taqlid and emphasis on ijtihad , which they saw as a return to Islamic origins. The advocacy of ijtihad has been particularly associated with Islamic Modernism and Salafiyya movements. Among contemporary Muslims in

3549-517: The New Testament [Rom. 7: 22]). In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh , which refers to a scholar's interpretation thereof. In older English-language law-related works in the late 19th/early 20th centuries, the word used for Sharia was sheri . It, along with the French variant chéri , was used during the time of

3640-408: The Quran existing today is a religious source, infer from the same verses that it is clearly ordered to pray 2 or 3 times, not 5 times. In addition, in religious literature, wajib is widely used for all kinds of religious requirements, without expressing any fiqh definition. As seen above and in many other examples, classifications and labels have a relative character shaped by the understanding of

3731-540: The West there have emerged new visions of ijtihad which emphasize substantive moral values over traditional juridical undertandings. Shia jurists did not use the term ijtihad until the 12th century. With the exception of Zaydis , the early Imami Shia were unanimous in censuring Ijtihad in the field of law ( Ahkam ) until the Shiite embrace of various doctrines of Mu'tazila and classical Sunnite Fiqh . After

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3822-499: The Western media in 2009 when Ameneh Bahrami , an Iranian woman blinded in an acid attack, demanded that her attacker be blinded as well. The concept of punishment under Qisas is not based on "society" versus the "individual" (the wrong doer), but rather that of "individuals and families" (victim(s)) versus "individuals and families" (wrong doer(s)). Thus the victim has the ability to pardon the perpetrator and withhold punishment even in

3913-511: The application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools. This interpretive apparatus is brought together under the rubric of ijtihad , which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question. The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason ( ʿaql ) as

4004-469: The authenticity of hadiths could only be questioned through the chain of narration, though some western researchers suggests that primary sources may have also been evolved. Only several verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance , though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means. Islamic literature calls

4095-445: The beginning. Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong. Sharia rulings fall into one of five categories known as "the five decisions" ( al-aḥkām al-khamsa ): mandatory ( farḍ or wājib ), recommended ( mandūb or mustaḥabb ), neutral ( mubāḥ ), reprehensible ( makrūh ), and forbidden ( ḥarām ). It

4186-677: The branches of fiqh ), which is devoted to elaboration of rulings on the basis of these principles. Classical Islamic jurisprudence refers how to elaborate and interpret religious sources that are considered reliable within the framework of "procedural principles" within its context such as linguistic and " rhetorical tools " to derive judgments for new situations by taking into account certain purposes and mesalih. Textual phrases usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. It also comprises methods for establishing authenticity of hadith and for determining when

4277-535: The case of murder. Bahrami pardoned her attacker and stopped his punishment (drops of acid in his eyes) just before it was to be administered in 2011. Diyya is compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom . The Quran specifies the principle of Qisas (i.e. retaliation), but prescribes that one should seek compensation ( Diyya ) and not demand retribution. We have prescribed for thee therein (the Torah) 'a life for

4368-444: The constitutions of most Muslim-majority states contain references to sharia, its rules are largely retained only in family law and penalties in some. The Islamic revival of the late 20th century brought calls by Islamic movements for full implementation of sharia, including hudud corporal punishments , such as stoning through various propaganda methods ranging from civilian activities to terrorism . The word sharīʿah

4459-572: The divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property. Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law. Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning. Others regarded them as an "independent" source of law, whose general principles could override specific inferences based on

4550-546: The efforts of hadith scholars to weed out fabrications. After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad's companions. In his view, the real architect of Islamic jurisprudence was al-Shafi'i , who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work al-risala , but who

4641-412: The establishment of judicial provisions, such as the identification of the criminals. According to the traditional understanding, four male fair witnesses were required for the accusation of adultery in court, and two male witnesses were required for any other verdict. In addition, the accusers would be punished with slander for accusations that do not meet the specified conditions as a note. For example,

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4732-460: The face of the development of the understanding of law and the increasing reactions to corporal punishment - claim that the verse determines the punishment of "concrete sequential criminal acts" - such as massacre, robbery and rape - in addition to rebellion against the legitimate government, and that the punishment to be given depends on the existence of these preconditions. The body of hadith provides more detailed and practical legal guidance, but it

4823-582: The fard rule. 1. Nass , (only verses of the Qur'an can be accepted as evidence here, not hadiths ) 2.The expression of the text referring to the subject must be clear and precise enough not to allow other interpretations. The term wajib is used for situations that do not meet the second of these conditions. However, this understanding may not be sufficient to explain every situation. For example, Hanafis accept 5 daily prayers as fard. However, some religious groups such as Quranists and Shiites , who do not doubt that

4914-448: The first five Islamic centuries , ijtihad continued to practise amongst Sunni Muslims. The controversy surrounding ijtihad started with the beginning of the twelfth century. By the 14th century, Islamic Fiqh prompted leading Sunni jurists to state that the main legal questions had been addressed and then ijtihad was gradually restricted. In the modern era, this gave rise to a perception amongst Orientalist scholars and sections of

5005-439: The first three or the first four categories. The legal and moral verdict depends on whether the action is committed out of necessity ( ḍarūra ) and on the underlying intention ( niyya ), as expressed in the legal maxim "acts are [evaluated according] to intention." Hanafi fiqh does not consider both terms as synonymous and makes a distinction between " fard " and " wajib "; In Hanafi fiqh, two conditions are required to impose

5096-424: The formation of fiqh while they have accepted the general outlines of the traditionalist account at first. In the late 19th century, an influential revisionist hypothesis was advanced by Ignác Goldziher and elaborated by Joseph Schacht in the mid-20th century. Schacht and other scholars argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs,

5187-415: The growing influence of Islamist movements. The issue of whose testimony will be accepted and whose testimony will not be accepted, which is one of the most important determinants in the establishment of judgement, is one of the most important topics in sharia law: Women and non-Muslims are not allowed to testify in hudud punishments Proving the crime of adultery is separated from ordinary testimonies and

5278-399: The initial Muslim efforts to formulate legal norms regarded the Quran and Muhammad's hadiths as just one source of law, with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources. According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite

5369-402: The late 20th century brought along calls by Islamist movements for full implementation of sharia. Reinstatement of hudud punishments has had particular symbolic importance for these groups because of their Quranic origin, and their advocates have often disregarded the stringent traditional restrictions on their application. In practice, in the countries where hudud have been incorporated into

5460-556: The laws that can be associated with the Quran in Sharia " hudud " (meaning the limits set by Allah). How the verse Al-Ma'idah 33, which describes the crime of hirabah , should be understood is a matter of debate even today. The verse talks about the punishment of criminals by killing, hanging, having their hands and feet cut off on opposite sides , and being exiled from the earth, in response to an -abstract- crime such as " fighting against Allah and His Messenger ". Today, commentators - in

5551-464: The legal code under Islamist pressure, they have often been used sparingly or not at all, and their application has varied depending on local political climate. Their use has been a subject of criticism and debate . Qisas is the Islamic principle of " an eye for an eye ". This category includes the crimes of murder and battery . Punishment is either exact retribution or compensation ( Diyya ). The issue of qisas gained considerable attention in

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5642-665: The legal force of a scriptural passage is abrogated by a passage revealed at a later date. The sources of judgment in classical fiqh are roughly divided into two: Manqūlāt (Quran and hadith) and Aqliyyāt (ijma, qiyas, ijtihad and others). Some of them (Aqliyyāt) are considered to be the product of scholastic theology and Aristotelian logic . It was an important area of debate among traditional fiqh scholars how much space should be given to rational methods in creating provisions such as extracting provisions from religious texts, as well as expanding, restricting, abolishing or postponing these provisions according to new situations, considering

5733-572: The letter of scripture . Taking maqasid and maslaha as an "independent" source of sharia - rather than an auxiliary one - will pave the way for the re-critique and reorganization of ahkam in the context of maqasid and maslaha, thus (including hudud ), which is often criticized in terms of today's values and seen as problematic, in terms of the purposes of sharia and social benefits will be replaced by new ones. Abdallah bin Bayyah goes further with an approach that prioritizes purpose and benefit among

5824-527: The lines of theological differences and resulted in formation of the Twelver , Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools. The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman. The transformations of Islamic legal institutions in the modern era have had profound implications for

5915-459: The madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on

6006-422: The other one can remind him..." (Surat al-Baqara, 282) In ta'zir penalties , there are no obligations for judges or administrators to prove the crime, find witnesses or evidences. Traditional Islamic jurisprudence divides crimes into offenses against God and those against man. The former are seen to violate God's hudud , or 'boundaries'. These punishments were specified by the Quran , and in some instances by

6097-540: The people and groups who make them. For example, believing in the existence and miracles of Awliya is presented as a "condition" for orthodox Islam by many prominent Sunni creed writers such as Al-Tahawi and Nasafi and is accepted in traditional Sunnis and Shi'ism. However, this understanding, along with expressions of respect and visits to the graves of saints, are seen as unacceptable heresy by puritanical and revivalist Islamic movements such as Salafism , Wahhabism and Islamic Modernism . About six verses address

6188-455: The punishment is at the discretion of the state, the ruler or a Qadi, for actions considered sinful or destructive of public order, but which are not punishable as hadd or qisas under Sharia. Sharia Sharia, Sharī'ah , Shari'a , Shariah or Syariah ( Arabic : شريعة , lit.   'path (to water)') is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam , particularly

6279-490: The purpose and benefit, together with new sociologies, in the face of changing conditions. In this context, in the Classical period, the ulema were divided into groups (among other divisions such as political divisions) regarding the place of " 'Aql " vis-à-vis naql: those who rely on narration ( Atharists , Ahl al-Hadith ), those who rely on reason ( Ahl al-Kalām , Mu'tazila and Ahl al-Ra'y ) and those who tried to find

6370-561: The question, or where there is an existing scholarly consensus ( ijma ). An Islamic scholar who perform ijtihad is called " mujtahid ". In the general understanding, beyond the limitation of ijtihad to those situations that do not have a clear ruling in the Quran and hadiths, scholars who have the ability to give general judgments are also ranked with definitions such as "mujtahid mutlaq", "mujtahid in sect", "mujtahid in issue". Rulings based on ijtihad are not decisions that require obligatory implementation for other Muslims. Throughout

6461-438: The religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified others, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the community. Juristic thought gradually developed in study circles, where independent scholars met to learn from

6552-481: The same question). Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by

6643-632: The same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions. Other juristic genres include the qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar. Classical jurisprudence has been described as "one of the major intellectual achievements of Islam" and its importance in Islam has been compared to that of theology in Christianity . The main Sunni schools of law ( madhhabs ) are

6734-422: The school's founder. In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith. Fiqh is traditionally divided into the fields of uṣūl al-fiqh (lit. the roots of fiqh ), which studies the theoretical principles of jurisprudence, and furūʿ al-fiqh (lit.

6825-488: The slightest doubts or ambiguities ( shubuhat ). The harsher hudud punishments were meant to deter and to convey the gravity of offenses against God, rather than to be carried out. During the 19th century, sharia-based criminal laws were replaced by statutes inspired by European models nearly everywhere in the Islamic world, except some particularly conservative regions such as the Arabian peninsula. The Islamic revival of

6916-749: The sources of sharia and declares it to be the heart of "usul-al fiqh". While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence. These scholars expanded the inventory of maqasid to include such aims of Sharia as reform and women's rights ( Rashid Rida ); justice and freedom ( Mohammed al-Ghazali ); and human rights and dignity ( Yusuf al-Qaradawi ). Ijtihad lit.   ' physical ' or ' mental effort ' refers to independent reasoning by an expert in Islamic law , or exertion of

7007-513: The tendencies of different schools - and integrated and with various economic, penal and administrative laws issued by Muslim rulers; and implemented for centuries by judges in the courts until recent times, when secularism was widely adopted in Islamic societies. Traditional theory of Islamic jurisprudence recognizes four sources for Ahkam al-sharia : the Qur'an , sunnah (or authentic ahadith ), ijma (lit. consensus) (may be understood as ijma al-ummah ( Arabic : إجماع الأمة ) –

7098-431: The term maqāṣid aš-šarīʿa are the expressions maqāṣid aš-šāriʿ ("intentions of the legislature"), maqāṣid at-tašrīʿ ("intentions of the legislature "), ruḥ aš -šarīʿa ("Spirit of Sharia"), ḥikmat at-tašrīʿ ("Wisdom of Legislation") and falsafat at-tašrīʿ ("Philosophy of Legislation"). They were first clearly articulated by al-Ghazali (d. 1111), who argued that Maqāṣid and maslaha was God's general purpose in revealing

7189-462: The term sharia in discourses. A related term al-qānūn al-islāmī ( القانون الإسلامي , Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state. The primary meanings of the Arabic word šarīʿah , derived from the root š-r-ʕ . The lexicographical studies records two major areas of

7280-540: The testimony of two women can be equal to the testimony of a man, and a non-Muslim or a sinner cannot serve as an eyewitness against a Muslim. Men's share of the inheritance will be twice that of women. Islamic preachers constantly emphasize the importance of adalah , and in trials, the judge is not expected to observe equality among those on trial, but is expected to act fairly or balanced. Traditional fiqh states that legal and religious responsibility begins with rushd . The domain of furūʿ al-fiqh (lit. branches of fiqh)

7371-473: The vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge. The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages. Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings. In Imam Malik 's usage, hadith did not consist only of

7462-451: The victim or by the state, and the punishments must be carried out in public. However, the evidentiary standards for these punishments were often impossibly high, and they were infrequently implemented in practice. For example, meeting hudud requirements for zina and theft was virtually impossible without a confession, which could be invalidated by a retraction. Based on a hadith, jurists stipulated that hudud punishments should be averted by

7553-647: The victory of the Usulis who based law on principles ( usul ) over the Akhbaris ("traditionalists") who emphasized on reports or traditions ( khabar ) by the 19th century, Ijtihad would become a mainstream Shia practice. The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity). Considering that, as

7644-432: The way a woman should dress when in public; Muslim scholars have differed as how to understand these verses, with some stating that a Hijab is a command (fard) to be fulfilled and others say simply not. The statement in the Qur'an that determines the status of slaves and concubines in the understanding of Sharia is as follows; ma malakat aymanuhum or milk al-yamin meaning " those whom your right hands possess ". It

7735-544: The word can appear without religious connotation. In texts evoking a pastoral or nomadic environment, šarīʿah and its derivatives refers to watering animals at a permanent water-hole or to the seashore. One another area of use relates to notions of stretched or lengthy. The word is cognate with the Hebrew saraʿ שָׂרַע and is likely to be the origin of the meaning "way" or "path". Some scholars describe it as an archaic Arabic word denoting "pathway to be followed" (analogous to

7826-769: The words claimed to belong to Muhammad as is the case with Shiite Muslims . While hadith does not appear to be an important source of decision for early fiqh scholars such as Abu Hanifa , for later scholars, hadith is perceived as the words of Muhammad merely and is considered as a strong and separate source of decision alongside the Quran. Today, Quranists do not consider hadiths as a valid source of religious rulings. Maqāṣid (aims or purposes) of Sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times. Abū Hāmid al-Ghazālī , Izz al-Din ibn 'Abd al-Salam and Abu Ishaq al-Shatibi used maslaha and madasıd as equivalent terms. Synonyms for

7917-882: The world. For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia. The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs. The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought. The development of Shia legal schools occurred along

8008-399: Was a practice used as a resolution tool in inter-tribal conflicts in pre-Islamic Arab society . The basis of this resolution was that a member from the tribe to which the murderer belonged was handed over to the victim's family for execution, equivalent to the social status of the murdered person. The "condition of social equivalence" meant the execution of a member of the murderer's tribe who

8099-437: Was equivalent to the murdered person. For example, only a slave could be killed for a slave, and a woman for a woman. In other cases, compensatory payment ( Diya ) could be paid to the family of the murdered. On top of this pre-Islamic understanding added a debate about whether a Muslim can be executed for a non-Muslim during the Islamic period. The main verse for implementation in Islam is Al Baqara 178: "Believers! Retaliation

8190-568: Was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths. Some articles that may be considered precursors of sharia law and rituals can be found in the pre-Islamic Arabic Religions ; Hajj , salāt and zakāt could be seen in pre-Islamic Safaitic-Arabic inscriptions, and continuity can be observed in many details, especially in todays hajj and umrah rituals. The veiling order , which distinguishes between slaves and free women in Islam , also coincides with similar distinctions seen in pre-Islamic civilizations. Qisas

8281-503: Was recognized early on that not all of them were authentic. Early Islamic scholars developed personal criteria for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains. These studies narrowed down the vast corpus of prophetic traditions to several thousand "sound (seeming to collectors)" hadiths, which were collected in several canonical compilations. The hadiths which enjoyed concurrent transmission were deemed mutawatir ; however,

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