Islam

Islamic Law

Sharī’ah

The word sharī’ah broadly refers to God’s divine law as described in the Qur’ān and the doings and sayings of the Prophet Muḥammad (Sunnah). Muslims generally understand sharī’ah to be permanent and immutable. The primary source of Islamic law is the Qur’ān, while the remainder is derived from secondary sources of law, namely principles of jurisprudence (fiqh).

Principles of Jurisprudence (Fiqh)

The concept of fiqh refers to the scholarly efforts by Islamic jurists to elaborate on the details of sharī’ah. It is considered to be a human enterprise of debate, reinterpretation and subject to change. This makes it distinct from the infallible and unchanging primary sources of law (the Qur’ān and the traditions of Muḥammad). There are a variety of legal methods and principles that a jurist may use to determine a law. A jurist may also use more than one method to reach a similar conclusion. The schools of law (madhhab) use different methods and prioritise some methods over others, thus adding to the diversity of legal procedures.

• Consensus (Ijmā‘): Some contend that consensus among scholars and jurists is sufficient, while others consider consensus to include the whole community (ummah). Most schools of law consider a decision as binding once a consensus is reached.
• Analogical Reasoning (Qiyās): According to this method, the ruling of the Qur’ān or Sunnah may be extended to a new problem provided that the new problem shares the same cause. For example, the prohibition against the use of narcotics on the basis of the prohibition against alcohol as it intoxicates the mind.
• Public Benefit (Maṣlaḥah): The principle of ‘public benefit’ consists of prohibiting or permitting something on the basis of whether or not it serves in the best interest of the public. Depending on the school of law, equitable considerations may override the results of a strict analogy (qiyās).
• Custom (‘Uruf): Customs refers to unwritten customary law, in contrast to written state or Islamic law.
• Reasoning (Ijtihād): Personal or independent reasoning is generally used when the Qur’ān and Sunnah are silent on a matter and when a consensus has not been met. This legal method usually requires a qualified Islamic scholar (known as mujtahid) to have thorough knowledge of theology, sacred texts, other legal methods, thorough knowledge of Arabic and a high level of legal reasoning. Schools of law disagree whether ijtihād is fallible and still valid as a legal method.
• Legal Presumption (Istiṣḥāb): Legal presumption of continuity is when a situation existing previously is presumed to be continuing at present until proven contrary. An example is the presumption that a sixth daily prayer is not mandatory (since sacred texts only stipulate five). Another example is the presumption of one’s innocence until the contrary is proven.
• Equity (Istiḥsān): Equity refers to the principle that permits exceptions in favour of public benefit (maṣlaḥah). This principle guides decision making in instances where there are several potential outcomes.

Legal Opinion (Fatwá)

A fatwá is an authoritative legal opinion given in response to a question or case posed by a court of law or individual. A fatwá is separate from a ruling in a court of law. The fatwá can only be issued by a skilled jurist (Sunnī: muftī; Shī‘á: mujtahid) and the authority of a legal opinion is generally based on the status and education of the muftī. Legal opinions are often based on precedent and are usually issued in cases not covered in the pre-existing legal literature. If a court of law or individual is not persuaded by the fatwá, they are free to go to another muftī and obtain another fatwá. These legal opinions are not necessarily part of a school of law. Fatwás are compiled in legal reference manuals for other jurists.

Schools of Law (Madhhab)

Generally speaking, every Muslim should follow a school of law as a guide in legal matters. Each school has an accepted body of texts and employs different legal methods to determine a legal ruling. Most Muslims follow the school of law that is dominant in the country where they live.

Sunnī

There are four major schools of law in Sunnī Islam. Any four of the schools constitute a valid body of law, even in cases of disagreement. The four major schools are:

• Hanafiy: The Hanafiy school of law is noted for its use of equity (istiḥsān) to moderately harsh rulings. Hanafiy is the most widespread school, followed by approximately a third of the world’s Muslims mostly located in Central Asia, South Asia, Afghanistan, Pakistan, Turkey and countries of the former Ottoman Empire.
• Mālikiy: The Mālikiy school of law is noted for its strong emphasis on ḥadīths. Mālikiy is predominant in North Africa, specifically parts of Egypt, Sudan, Bahrain, Kuwait and the United Arab Emirates.
• Shāfi‘iy: The Shāfi‘iy school of law is noted for its denial of equity (istiḥsān) as a source of law. Shāfi‘iy is followed mainly in parts of Egypt, Syria, Lebanon, Iraq, India and Indonesia.
• Hanbaliy: The Hanbaliy school of law is the official school in Saudi Arabia and Qatar. It is noted as the most conservative of the Sunnī law schools, except in commercial matters (where it is thought to be most liberal).

Shī‘á

Most Shi’ites (particularly those from the Ithnā-‘ashariy [Twelvers] branch) follow the Ja‘fariy school of law. This school recognises four sources of Islamic law; the Qur’ān, the Sunnah, consensus (ijmā‘) and personal reasoning (ijtihād). There are various areas where the Ja‘fariy school differs from the schools of Sunnī, for example, the acceptance of temporary marriage (mu’tah) on the basis of Surah 4:24, which, according to Sunnī Muslims, is an abrogated verse.

General Ethical Principles

The basis of Islamic ethics is the capacity for humans to freely commit good or bad actions. A commonly cited verse of the Qur’ān is in Surah 3:104, “Let there arise out of you a band of people inviting to all that is good, enjoining what is right and forbidding what is wrong.” As such, an individual should intentionally choose to do what is considered right and good.

Intention (Niyyah)

Intention (niyyah) is thought to be important for deeds and acts, especially in the case of ritual action. The concept of intention plays an important role in determining the morality of an action. For example, proper intent is considered necessary for an act to be meritorious and valid.

Sin (Ithim)

Sin refers to the breach or violation of religious law or ethical norm through omission or commission. In Islam, one is held accountable for sins intentionally (niyyah) committed. Sinful actions may be classified into major or minor sins. The most serious sin is sharik; the association of someone or something with God, thus deviating from monotheism.

Modesty (Ḥayā’)

Modesty (ḥayā’) is considered an important guiding principle in Islam. The Sunnah reports the Prophet Muḥammad as saying that a person with great pride in their heart will not enter paradise (Saḥīḥ Muslim, Book 1, Ḥadīth 172). As such, Muslims may avoid attitudes, postures or behaviours considered to be boastful or extravagant. Muslim men and women are also encouraged to dress modestly by avoiding overly expensive or luxurious clothing or clothing that reveals the human figure.

Categories of Action

According to Islamic law, all actions can be classified into one of five categories. These categories also indicate whether or not an action is considered ethical.

• Obligatory (Wājib): Obligatory actions are further divided into two categories: actions required of every Muslim (such as prayer) and actions that some may fulfil on behalf of the community (such as attending a funeral).
• Recommended (Mustaḥabb): Recommended actions are actions considered to be meritorious but are not required. Examples include voluntary charity (ṣadaqah) and marriage for men.
• Permissible (Mubāḥ): Permissible actions are actions that have no moral or legal consequences. Most Islamic legal scholars assert that everything is permissible unless specifically stated otherwise. The term ḥalāl is often used when discussing dietary laws.
• Discouraged (Makrūh): Discouraged actions are actions that are not legally forbidden but should be avoided. An example is divorce during the wife’s menstrual cycle.
• Forbidden (Ḥarām): Forbidden actions are considered the opposite of obligatory actions. Actions classified as forbidden range from dietary laws (e.g. the prohibition against eating pork) to marital laws (e.g. the prohibition for men against marrying a close female relative [Surah 4:23]).

Sexuality, Marriage and Divorce

Sexual Relations

Sexual relations are understood in the context of a legally accepted marriage between a man and woman. Accordingly, acts outside of this formula are usually considered impermissible. Refraining from sexual acts outside of marriage (i.e. chastity) is an important part of Islamic sexual ethics. Additionally, Islam generally does not endorse celibacy.

Other sexual acts traditionally considered unacceptable include fornication, pornography, prostitution, masturbation and homosexual activity. In contemporary times, different schools of law and cultural contexts inform the level of tolerance or acceptance of particular sexual activities. Most modern birth control methods (other than abortion) are generally accepted.

Sexual relations are believed to cause ritual impurity, thus requiring a major ritual purification (ghusul). Sexual intercourse may be prohibited during specific times or events, for example during menstruation, a period of time after childbirth, fasting during the month of Ramaḍān and while on pilgrimage to Mecca (ḥajj).

Homosexuality

Islam and its sacred texts encourage a hetero-normative idea of relationships and marriage. Homosexual acts are deemed an illicit sexual act on the basis that it occurs outside of marriage, between members of the same gender, and entails the possibility of anal sex. The Qur’ān does not explicitly comment on homosexual relationships. However, it directly comments on homosexual sexual activity. For example, Surah 26:165-175 tells the story of the Tribe of Lūṭ in which God condemns male anal intercourse.

Sharī’aḥ terminology defines homosexuality as a form of fornication rather than a sexual orientation. Across the diverse spectrum of Islamic practice and thought, most scholars and jurists (ulamā) oppose homosexuality, seeing it as incompatible with Islamic theology and occasionally worthy of punishment. Nonetheless, expressions of homosexuality exist, even if not socially accepted in the Muslim world.

Marriage

In Islam, marriage is understood as a social contract with divine sanction. Specific marriage practices and laws differ depending on time and place as well as the school of law applied. In most cases, a marriage contract (nikāḥ), two witnesses and dowry (mahr) are required for a marriage to be considered legally valid. Typically, the groom is required to give his wife the dowry, which is her property alone to dispose of as she wishes. Much variation exists on how a spouse is selected and how the marriage is celebrated. Some general features include:

• In Islamic law, men are allowed to marry up to four wives so long as he has the financial capacity to provide and be equitable between them. Most Muslim men in contemporary times have only one wife and some countries with significant Muslim populations (such as Tunisia and Turkey) have outlawed polygyny.
• Women may only marry one man at a time. 
• In modern Islamic law, Muslim men are permitted to marry non-Muslim women that are regarded as ‘people of the book’ (i.e., Jewish and Christian women), while Muslim women are prohibited against marrying non-Muslim men.
• Traditionally, the husband is responsible for the financial support of his wife, while the wife is responsible for the management of the home and children.
• Decisions relating to marriage usually factor in considerations like ancestry, property, the benefits to both families and the religiosity of the partner. Emotions like love may or may not play a primary role in choosing a spouse.
• In the Ithnā-‘ashariy (Twelvers) branch of Shī‘á Islam, temporary marriages (mut‘ah) are legal. The contract specifies the length of the marriage and the dowry. The wife has no inheritance rights but children from such marriages are considered legitimate and are entitled to inheritance.

Unmarriageable Kin (Maḥram)

A maḥram person is any relative of the opposite gender that one is not permitted to marry under Islamic law. These people may be related by blood, marriage or by having been breastfed by the same woman. However, not every person an individual is related to is maḥram. For example, brothers or sisters-in-law are not maḥram. The Qur’ān (33:59) prescribes that a Muslim woman should wear some form of ḥijāb in front of any male who is not maḥram (i.e. men she could potentially marry).

Divorce (Ṭalāq)

In Islam, divorce (ṭalāq) is permissible yet regrettable. The Qur’ān recommends reconciliation with the help of mediators (Surah 4:35). There are different kinds of divorce in Islamic law. Traditionally, a husband initiates a divorce by stating a unilateral pronouncement known as the ṭalāq. This statement severs the legal contract. Afterwards, the couple is to refrain from sexual intercourse for a period of three menstrual cycles (‘iddah). If the woman is found to be pregnant during this period, then the ‘iddah extends until she gives birth. At the end of this period of time, the marriage is formally terminated. The couple may resume their relationship within the ‘iddah period if it is their first or second divorce, and if they can reach a resolution. If a woman initiates a divorce, it is called a khulu‘. In some countries, it is harder for a woman to obtain a divorce than men.

Inheritance (Mīrāth)

The Qur’ān contains extensive and specific rules regarding inheritance. Sunnī and Shī‘á diverge on interpretations and applications of these rules. Generally, Muslim women and men are required to receive a specifically regulated inheritance.

Adoption

Islamic law prohibits formal adoption in accordance with Surah 33:4-5, however, fostering is permitted. Adopted children are not entitled to the same rights of inheritances as other children. Children who are orphans are usually cared for by extended family. Informal adoption exists and allows Muslims to give monetary gifts to such children throughout their lifetime. Islam also strongly encourages foster caring. It is believed that the reward for someone who cares for a child is being seated closely to the Prophet Muḥammad in paradise.

Gendered Interactions

Gender segregation is practiced or customary in some Islamic countries or cultures. Some legal scholars have issued fatwás that forbid ikhtilāṭ (the free mixing of men who are not maḥram and women). One example is the concept of purdah, which is used in parts of South Asia to refer to the social practice of female seclusion. This may also be in the form of modest dress for women. Such practices are usually to maintain the principle of modesty (ḥayā’).