ISLAMIC LEGAL SYSTEM
Islamic law, unlike the previously discussed systems, is not an independent branch of knowledge (Ende and Steinbach, 2010). Law is integral to Islamic religion, which defines the character of the social order of the faithful who create laws in the name of Allah, or God (Ghanim, 2010; Hallaq, 2009). Islam means “submission” or “surrender” and implies that individuals should submit to the will of God. Islamic religion states what Muslims must believe and includes the Shari’a (“the way to follow”), which specifies the rules for believers based on divine command and revelation. Unlike other systems of law based on judicial decisions, precedents, and legislation, Islamic law is derived from four principal sources (Shaham, 2010).
The principal source of Islamic law is the Koran, the word of God as given to the Prophet. The second source is the Sunna, which are the sayings, acts, and allowances of the Prophet as recorded by reliable sources in the Tradition (Hadith). The third is judicial consensus; like precedent in common law, it is based on historical consensus of qualified legal scholars, and it limits the discretion of the individual judge. Analogical reasoning is the fourth primary source of Islamic law. It is used in circumstances not provided for in the Koran or in other sources. For example, some judges inflict the penalty of stoning for the crime of sodomy, contending that sodomy is similar to the crimes of adultery, out-of-wedlock sex, and drinking alcohol and thus should be punished by the same penalty the Koran indicates for adultery (Economist, 2010:48).
In the same vein, a female would get half the compensation a male would receive for being the victim of the same crime, because a male is entitled to an inheritance twice that of a female. In addition to these principal sources, various supplementary sources, such as custom, judge’s preference, and the requirements of public interest, are generally followed (Nielsen and Christoffersen, 2010).
Shari’a legal precepts can be categorized into five acts: commanded, recommended, reprobated, forbidden, and left legally indifferent. Islamic law mandates rules of behavior in the areas of social conduct, family relations, inheritance, and religious rituals, and defines punishments for heinous crimes including adultery, false accusation of adultery, intoxication, theft, and robbery. For example, in the case of adultery, the proof of the offense requires four witnesses or confession. If a married person is found guilty, he or she is stoned to death. Stones are first thrown by witnesses, then by the judge, followed by the rest of the community. The punishment for an unmarried person is 100 lashes (Lippman et al., 1988).
For theft, the penalty of hand amputation is often used. From time to time, the classic retribution of the notion “eye for an eye” is invoked in a literary sense. For example, a judge in Bahawalpur, a city in the eastern Pakistani province of Punjab, once ruled that a man convicted of attacking and blinding his fiancee with acid be blinded with acid himself. (Seattle Times, 2003:A8).
Even grooming can be a man’s undoing. In Afghanistan, an adult male is obliged not only to grow a beard but also to leave the hairy underbrush unmolested by scissors. Patrols from the General Department for the Preservation of Virtue and Prevention of Vice, revived as the Vice and Virtues Ministry, were rather tough in the past on trimmed beards in Kabul and used to snatch violators from the bazaars and took them to a former maximum security prison for 10 days of religious instruction (Bearak, 1998). In Iran, “decency crackdowns” have occurred amid new rules governing men’s appearance and periodic police raids on barber shops and stores that sell neckties—seen as vestiges of the decadent West. As is well known, women also have to dress traditionally. For example, in May 2007, in a 1-week period, some 16,000 Iranian women and about 500 men were cautioned about their appearance, and police were hunting streets and parks for immodestly dressed women and wildly coiffed men (Higgins, 2007).
It is important to remember that the sanctions attached to the violation of Islamic law are religious rather than civil. Commercial dealings, for example, between Muslims and Westerners are covered by governmental rules comparable to administrative law in the United States. The fundamental principle of Islam is that of an essentially theocratic society, and Islamic law can be understood only in the context of some minimum knowledge of Islamic religion and civilization. Thus, care should be exercised in discussing or analyzing components of Islamic law out of context and in isolation.