Comparative Law 2006

1. Comparative Law 2006 Islamic Law Class of March 30, 2006

2. Meaning of Islam • The word Islam means submission or surrender to Allah’s will. • Over 1.2 billion Muslims worldwide (around 20% of world’s population). • 19 nations have declared Islam in constitutions • 35 nations have over 50% Muslims and another 21 have large Muslim populations

3. Founding of Islam • Who founded Islam and when?

4. Founding of Islam • The prophet Muhammed founded the Islamic religion in the 7th century. • In 622 AD he founded the first Islamic state, a theocracy in Medina, now Saudi Arabia (located north of Mecca),

5. Five Pillars of Islam • Faith or belief in the Oneness of God and the finality of the prophethood of Muhammad; • Daily prayers five times per day; • Concern for and almsgiving to the needy zakah; • Self-purification through fasting in month of Ramadan (daylight hours); • The pilgrimage to Mecca for those who are able hajj.

6. What are the two main branches of Islam?

7. 2 Main Branches • Sunni branch (90% of Muslim world) – believe that first four caliphs (Mohammed’s successors) rightfully took his place as leaders of Muslims. • Shiite branch – believe that only the heirs of the fourth caliph, Ali, are the legitimate successors of Mohammed. Believe in divine appointment of a leader or Imam

8. Ottoman Empire • The heirs of the first four caliphs ruled continuously in the Arab world until the Ottoman Empire broke up after the First World War. This was a devastating blow to many Sunni Muslims who perceived the caliph as the guardian of Islamic law and the Islamic state. • Result – rise of Sunni fundamentalist movements in various countries, eg. Egypt

9. Shari’a • What is Shari’a?

10. Shari’a • What is Shari’a? It means the “way” or “path to follow” and is the body of Islamic law. Applies only to Muslims • Substance of shari’a is found in Fiqh (Fikh) meaning “understanding” – it is the inferences drawn by scholars as opposed to the shari’a principles that lie behind it.

11. Shari’a • Comprehensive nature of the shari’a law is based on belief that law must provide all that is necessary for physical and spiritual well-being of a person. No separation of Church and State • Possible actions of a Muslim can be: obligatory, meritorious, permissible, reprehensible, forbidden

12. Sources of Islamic Law • Koran – sacred book, literally “the Reading” (a source for both Sunnis and Shiites)

13. Primary sources of law for Sunnis • Koran • Hadith • Ijma • Qiyas

14. Primary sources of law for Shiites • Koran • Anecdotes of Prophet’s practices and those of the 12 Imams • Intellect (aql) • Also have roots in local customs (Al-urf)

15. Elimination of Ijtihad • What is ijtihad • How/When was the door closed?

16. Elimination of Ijtihad • What is ijtihad? = Endeavour or effort • How/When was the door closed? informally

17. What is the Role of the individual in Shari’a • Is there concern for the individual person? • Does shari’a guarantee equality? • Is there a tradition of human rights in islamic law?

18. Variety of Laws in Muslim societies • Some countries with large Muslim populations, e.g. Indonesia, Bangladesh, Pakistan, have largely secular constitutions and laws with only a few Islamic provisions in family laws

19. Other varieties • Most countries in middle east and North Africa have dual system of secular courts and religious courts (for marriage and inheritance) • Iran and Saudi Arabia have religious courts for most or all aspects of jurisprudence • Some states in Northern Nigeria have reintroduced shari’a courts with relatively harsh punishments

20. Judges in Islamic Law • Common myth – that no judges. • Historically Islamic judge (Qazi or Qadi) was a legal secretary appointed by provincial governments. Now selection of judges varies in different countries

21. Shari’a, Crime and Punishment • Deterrent punishments • Some of the most serious crimes have harsh fixed punishments stated in Koran (hadd crimes against God’s law), e.g. murder, apostasy from Islam, theft, adultery • Tazir crimes lesser crimes against society do not have fixed punishments • Quesas crimes – where victim hasthe right to seek retribution and retaliation • Much variety in criminal laws in different countries

22. Dietary Laws • Muslims can only eat meat that has been slaughtered in name of God in a particular way and meets stringent dietary requirements (halal) • Cannot eat pork

23. Role of Women Under Shari’a • Marriage – by consent, polygamy permitted though abolished in some jurisdictions e.g. Tunisia • Islamic law forbids Muslims to marry non-Muslims unless they convert to Islam • Divorce –by talaq though state proceedings vary some provide for judicial divprce • Dress codes – vary in different countries

24. Other Islamic Family Law • Adoption does not exist – why? • Disposition by will limited to 1/3 of property • Women do not share with equally with men

25. Islamic Property Law • Similar to western law in recognizing private property and state property • What is the waqf? • What is the zakat?

26. Islamic Law of Obligations and Commercial Law • How does ethic of zakat influence Islamic commercial law and law of obligations?

27. Islamic Law of Obligations and Commercial Law • Also has ethic of zakat • Consensual law of contract • Corporate personality, prohibition of riba (interest or usury) some insurance contracts not permitted due to disproportionate return to insured without assumption of risk and speculation

28. Freedom of Speech • Shari’a does not allow freedom of speech on some matters, such as criticism of the prophet Muhammed

29. Apostasy • In most interpretations of shari’a conversion by Muslims to other religions is forbidden and amounts to treason – penalty is death

30. Change and Islamic Law • Can change occur? • If so, how?

31. Jihad • What does the word mean? • How aggressive can it be? • To what extent do the dhimmi limit an aggressive form of jihad?