But if reconciliation is impossible, the council will usually push the husband to grant the divorce. Sometimes, the council may declare an annulment of the marriage faskh unilaterally, for example if there is evidence of abuse, if the husband refuses to engage, or if a civil divorce is already under way. The councils are clearly providing a needed service for these women. But there was also evidence of bad practice. In some councils, there are problems which disadvantage or even put at risk the women they are trying to help.
Some insisted on mediation between the couple as a preliminary step in the process, which could be entirely inappropriate if the relationship was abusive. Sometimes the mediation could involve intrusive questioning about the relationship, or could be drawn out for several months.
Some councils lacked proper safeguarding procedures, and few had women as actual panel members with some notable exceptions. It recommended that legislation should be amended to require civil marriage to take place before or at the same time as an Islamic religious marriage, and to enable judges to refuse to grant a civil divorce to Muslim couples until the husband has granted his wife a religious divorce. These changes would help Muslim women in the future.
Recently it was reported that the government is exploring potential legal changes to ensure that Muslims get civil marriages, as suggested by the commission. It has argued that facilitating even the self—regulation of the councils could be seen as endorsing them as an alternative to the civil courts. Regulation is clearly needed, but that is unlikely to happen without some state encouragement even at arms—length. Ultimately, this issue raises difficult questions about the extent to which religious groups should be free to operate their own legal institutions, and the extent to which such institutions should be regulated by the state.
Banning the councils would not deal with the underlying problem creating the demand for their services and may drive them underground, making discriminatory practices more likely and increasing the risk to vulnerable women. The state is only allowed to interfere with them in limited circumstances, for example in order to protect the rights of others, and it must do so in a proportionate way.
For some readers, that may seem like a legalistic loophole that could excuse the government from taking more firm action.
There are some areas where Islamic law conflicts with modern Western values, in particular the stipulations for hudud punishments. It is about living in the way they believe God wants people to live, including worshipping him correctly and securing justice for the vulnerable.
The debate about Islamic law, and about Islam more generally, in our society is only going to continue. If we want to make real progress our conversations need to change. In this period of unprecedented division and anxiety about who we are as a nation, we need to confront our own assumptions and worries about the Other. Now more than ever, we must learn how to talk to each other about difficult topics in ways which reject hatred and fearfulness, and are underpinned by respect and love.
Shaykh Mohammad Akram Nadwi has compiled a 40—volume dictionary of women scholars of hadith in Arabic, the first volume of which has been translated into English as Al—Muhaddithat: The Women Scholars in Islam Knut S.
Oxford: Oxford University Press, pp. Rather, it means a meritorious striving or effort. Yaqueen Institute for Islamic Research, p. London: I. Edinburgh: Edinburgh University Press.
London: Rider. Vikor Between God and Sultan , p. Leiden: Brill. The classic Sharia was not a code of laws, but a body of religious and legal scholarship that continued to develop for the next 1, years.
The following sections illustrate some basic features of Islamic law as it was traditionally applied. Cases involving violations of some religious duties, lawsuits over property and business disputes, and family law all came before the kadis. Most of these cases would be considered civil law matters in Western courts today. Family law always made up an important part of the Sharia. Below are some features of family law in the classic Sharia that would guide the kadi in making his decisions.
The classic Sharia identified the most serious crimes as those mentioned in the Koran. These were considered sins against Allah and carried mandatory punishments. Some of these crimes and punishments were:. Crimes against the person included murder and bodily injury. This meant, for example, that the male next of kin of a murder victim could execute the murderer after his trial usually by cutting off his head with a sword.
If someone lost the sight of an eye in an attack, he could retaliate by putting a red-hot needle into the eye of his attacker who had been found guilty by the law. But a rule of exactitude required that a retaliator must give the same amount of damage he received. If, even by accident, he injured the person too much, he had broken the law and was subject to punishment. The rule of exactitude discouraged retaliation. In a third category of less serious offenses such as gambling and bribery, the judge used his discretion in deciding on a penalty.
Punishments would often require the criminal to pay a reparation to the victim, receive a certain number of lashes, or be locked up. The case then went on much like a private lawsuit. No government prosecutor participated although certain officials brought some cases to court.
The classic Sharia provided for due process of law. This included notice of the claim made by the injured person, the right to remain silent, and a presumption of innocence in a fair and public trial before an impartial judge. There were no juries. Both parties in the case had the right to have a lawyer present, but the individual bringing the claim and the defendant usually presented their own cases.
Where an answer cannot be derived directly from these, religious scholars may give rulings as guidance on a particular topic or question. In Arabic, Sharia literally means "the clear, well-trodden path to water". Sharia acts as a code for living that all Muslims should adhere to, including prayers, fasting and donations to the poor. It aims to help Muslims understand how they should lead every aspect of their lives according to God's wishes. Sharia can inform every aspect of daily life for a Muslim.
For example, a Muslim wondering what to do if their colleagues invite them to the pub after work may turn to a Sharia scholar for advice to ensure they act within the legal framework of their religion. Other areas of daily life where Muslims may turn to Sharia for guidance include family law, finance and business. Like any legal system, Sharia is complex and its practice is entirely reliant on the quality and training of experts.
Islamic jurists issue guidance and rulings. Guidance that is considered a formal legal ruling is called a fatwa. The Quraysh controlled access to the Kaaba and oversaw this pilgrimage, known as the Hajj. Mecca was itself an inviolable sanctuary, and this local peace and security allowed the Quraysh to assume a certain political preeminence among the pre-Islamic Arabs.
This message was taken by the local Arab pagans as profoundly threatening, and it was not surprising that they persecuted Muhammad and his followers. Yathrib had in the years prior suffered a debilitating civil war between its leading clans, and representatives from the town had gone during the annual pilgrimage to meet with Muhammad.
Some converted to Islam and invited him to come to Yathrib to live under their protection and act as their leader. Muhammad agreed. Now, unlike his previous years in Mecca, the Prophet and his followers were able to preach Islam openly and live out its ideals practically.
This new political community even had its own founding document, which Muslim historians came to call the Charter of Medina. Crucially, it brought into one political body the non-Muslim Arabian pagans of Yathrib still at that point the majority of the population with the local Jewish clans, which were explicitly granted the right to maintain their own religion but required to recognize the political authority of Muhammad. Now firmly entrenched in Medina, the Muslim community was able to defend itself against Meccan attacks and then to return to Mecca in victory.
Over the last year of his life, Muhammad extended his dominion to the rest of the Arabian Peninsula, though both he and many of his most prominent followers continued to live in Medina. Then, ten years after the hijra, Muhammad died, leaving the Quran and his teachings to guide the way. Abi Talib, as his successor.
Unlike the majority of the Muslim community, the Shia came to believe that the Prophet Muhammad also left, in addition to the Quran and his teachings, infallible leaders from among his own descendants, known as imams. But even though substantially divergent theological views became entrenched, Sunnis and Shia were, as a practical matter, in agreement on most points of law.
For this reason, and particularly in the twentieth century, there has been an attempt to transcend the Sunni-Shia divide by recognizing much Shia thought as another school of Islamic law that stands alongside the Sunni schools.
Despite these theological and political divisions, Muslims successfully forged a common law that bound both the ruler and the ruled, with the law emerging as a result of mutual discussion and debate. A ruler did not, for instance, have special authority to interpret the content of the law or the meaning of its rule, at least according to the majority of Sunnis.
So while the new Muslim empire was hardly the first in history to fuse the religious and the political, its manner was perhaps unique: unlike the Holy Roman Emperor, for example, a Muslim caliph did not lead public rituals as a high priest but in shared obligation with each person in the community—if circumstances required, the rituals could be performed by any them. T he rapid expansion of the early Muslim state brought new problems. In the Umayyads formed the first dynasty in Islamic history, making Damascus their capital.
The dynasty built its new capital city of Baghdad in Iraq and gave a prominent place in its administration to non-Arab converts—who hailed largely from the Persian-speaking populations of Iran and central Asia—even making room for the cultural contributions of numerous non-Muslim populations. From within this newly cosmopolitan political framework emerged variant interpretations of Islamic law: the four schools that became widely recognized, applied, and practiced.
0コメント