Islamic Law

Islamic Law: Conflicts and Contrasts with Non-Islamic legal systems
College of Law, Arizona State University
Professor Furnish, Faculty Advisor

Submitted Fall, 1993

by Teresa Allen

I. OVERVIEW OF Islamic Law

A. General Introduction

For efficient business transactions and effective cross-cultural communications, American attorneys and businesspersons benefit from a clear understanding of the cultural context of Islam and the Islamic legal system (Sharia). In some thirty-five countries,[1] there are nearly one billion Muslims, a fifth of the world’s population, which means that almost twenty percent of the world adheres to the doctrines of Islam.[2] Most Muslims speak Arabic, Turkish and Persian and live in the Middle and Near East as well as North Africa.[3] India also contains a large fraction of the Muslim population along with the Islamic states of Pakistan, Bangladesh and Indonesia. Large Muslim communities exist in China and throughout Africa. Islam, in fact, is one of the fastest growing religions in the world,[4] and an increasing number of Muslim immigrants are entering the United States, bringing with them the laws and customs of their Islamic heritage.[5]

Islamic states and countries that are predominantly Muslim vary in the proportions of Sharia and other legal practices applied. For example, Turkey lies at one extreme by having secularized its entire personal status law. The Turkish government views Islam as a matter of private religious practice.[6] Tunisia, a former French colony, is one of the more liberal Islamic states which has reformed its personal status rules to where courts apply these laws to Muslims and non-Muslims alike.[7] At the other extreme lie such fundamentalist Islamic states as Iran and Saudi Arabia.

During the last century much of Islamic law has undergone a certain amount of change, despite the principled irrevocability of its religious foundation.[8] Since the late nineteenth century, the Arab world and Near East extensively reformed their legal systems along Western lines.[9] Saudi Arabia, established in 1932, uniquely resisted the modern trend of following Western law.[10]

In a rapidly evolving world of cross-cultural encounters, the Muslims’ need to modify and compromise their institutions with other cultures and practices became inevitable. In general, European law, mostly French and British colonialism, influenced Islamic legal practices by displacing Sharia in favor of codified law applied in systems of secular courts. The Europeans especially influenced Islamic commercial law because of heavy international trade and commerce. Islamic Penal law was also greatly influenced, because of the Western perception of inhumane punishments and a long series of legal revisions from foreign sources.[11] Other displaced areas of Sharia include real estate, contract and tort laws.[12] For the most part, Sharia continues to govern the personal status laws of family and inheritance, which remain the least affected or modified since Islam’s incipience during the seventh century, B.C.E.[13]

Many moderate Islamic countries often face rebellious fundamental Muslims who fight, often through terrorists means, for a return to strict Sharia. In the late 1970s, fundamentalist political pressure forced somewhat secular countries such as Kuwait, Libya, the United Arab Emirates and Egypt to establish review bodies to revise existing laws according to Sharia principles.[14] Libya's Muammar Qaddafi was one of the first to officially Islamize a legal system by replacing Westernized laws with Sharia statutory rules.[15] In 1990, Pakistan returned to an Islamic criminal law doctrine that had been abandoned for 200 years.[16]

In Egypt the modern trend has been to subject the legal rules in the Egyptian Civil Code to the overriding public policy principles for applying Sharia.[17] Egyptian law did not include Sharia principles from 1955 until the 1970s, but since the assassination of Sadat in 1981, calls for the implementation of Sharia principles are steadily gaining legitimacy.[18] Sadat's downfall and the Islamicization process of Egypt's laws primarily came from Sadat's aggressive Western policies and peace accords with Israel.[19] Generally, legislative committees investigate the demands of pro-Islamic sympathizers and only rarely do these committees consider implementing Sharia-based legislation.[20]

Other regimes, such as Iran and the Sudan have gone to extremes in developing Islamic constitutions and changing their legal systems to strict Sharia practices.[21] Still, many Western-style laws and procedures have survived Islamicization campaigns and most attempts to establish an Islamic constitution have failed, except in the extreme case of fundamental Shiite Iran, the only state that completely fuses political and religious authority.[22]

Although Sharia has undergone some modernization, Islamic law, in its essence, rarely focuses on contemporary human needs and dealings in the way other legal systems do. On the contrary, Sharia is geared toward people living according to the will of Allah,[23] as specified in the Koran.[24] In this way, Sharia is inherently concerned with living according to seventh century policies while non-Islamic systems abide to the specifications of an evolving society. As a consequence, the predominantly rigid and historically based traditions of Islam present a major source of conflict with Western legal traditions.[25]

B. General Misconceptions about Islam

In the Western world people have developed a multitude of misconceptions about Islam. They often equate terrorism with Islam when in truth terrorists and their supporters throughout the world come from varying religious, political and ethnic backgrounds.[26] Furthermore, Islamic terrorists represent a small unconventional fragment of the Islamic world, rather than the majority of Muslims, just as IRA terrorists do not represent Christianity in its entirety.

Another misconception Westerners often hold is that all Arabs are part of the Islamic world. In truth, not all Arabs are Muslims and not all Muslims are Arabs. Consider the many Arab members of the Christian faith (e. g. the Coptics of Egypt and the Maronites of Lebanon) and the vast number of Muslims who are Persians, Malaysians, Indonesians, Thai, Black Africans, Chinese, or anyone anywhere who has converted to the Islamic faith.[27]

Westerners generally do not understand that Islam shares a common origin with the Jewish and Christian world. All three religions base their origin on the Biblical Patriarch Abraham. The Christians and Jews believe their ancestor was Abraham’s son Isaac, while the Muslims view their ancestor to be Abraham’s son Ishmael from his handmaiden Hagar. In fact, all three religions share the scriptural stories of Adam and Eve, Noah, Jonah and Moses, to name a few.[28] In the Koran, the most sacred scripture of Islam, Jesus is a major prophet of God, although Muslims don’t consider him as the son of God. Additionally, an entire chapter of the Koran is dedicated to Mary, mother of Jesus.[29]

All Muslim states are bound by customary international law and are free to pursue the progressive development of international law through treaty and custom.[30] This principle comes from the Koranic urging that Muslims “do not break oaths after making them,” and that they “fulfill agreements to the end of their term.”[31] In essence, Islamic Law forbids the random acts of violence known as international terrorism and strictly binds Islamic states to the covenants they sign.[32] The Koran tells Muslims to be faithful to their pledge to God, when entering into a pact. Accordingly, Muslims consider treaties, contracts of public or administrative law and contracts of civil or commercial law as pacts rather than distinguishable documents.[33] At the same time, the Hanafi and Maliki schools of Islamic law (discussed below) hold that the duration of a treaty’s binding nature (between a Muslim state and a non-Muslim state) should last no longer than four years. Additionally, Islamic courts could construe such mitigating factors as duress or necessity as grounds for voiding binding documents.[34]

Despite Islam’s claim of adherence to international law, one of the most commonly misunderstood doctrines of Islam, is the Jihad, the holy war. Traditionally, Islam divided the known world into the Islamic part, dar al islam, and the non-Islamic part, or the house of war, dar al harb.[35] In practice, Islam places the world in three categories: (1) the world of Islam, (2) the Jewish-Christian world and (3) the world outside these three religions. The Koran stipulates that no peace is possible with non-believers, although with Peoples of the Book (Jews and Christians), peace is possible.[36] Islamic principles allow Jews and Christians to live in Islamic states, but without full citizenship rights. Although Jews and Christians can practice their respective faiths under Islamic rule, they cannot convert or influence the Muslims.[37] One of the greatest sins in Islam is the abandonment of the Islamic faith[38] (see the following discussion on apostasy) and certain Muslim minorities consider non-Abrahamic religions as satanic works. This is why fundamentalist states, such as Iran, severely persecute non-Abrahamic peoples.[39]

The hinging philosophical difference between the Sharia and non-Islamic legal systems of the West rests in their respective sources. In stark contrast to the American legal system, Islamic law primarily comes from the Koran, the word of Allah, and from the Sunna, the pronouncements and practices of the Prophet Mohammed.[40] (See discussion below on the sources of Sharia.)

Another difference to consider is the role the attorney plays in his or her respective society. Islam penetrates the Muslim’s entire way of life, a reality that often creates difficulties for American trained attorneys who adamantly separate religion from law. Conversely, Muslim attorneys actually practice their trade in obedience to and in reverence for Allah. Additionally, Muslims often seek out the Islamic attorney for spiritual advice concerning actions that will or won’t please Allah.[41] This would never occur in Western societies unless the attorney was also a rabbi, nun, minister or priest.

A major problem with understanding Islam as a whole is that it is a religion without one clerical hierarchy making binding pronouncements, as compared with the hierarchy of the Catholic religion.[42] Even the two major denominations of Islam, the Shiites and Sunnis, have differing traditions and schools of thought (see discussions below). Consequently, the several Islamic states often disagree on doctrinal matters, which tends to create the appearance of an incongruent body of law. For example, both Iran and Saudi Arabia aspire to be the prototype Islamic state, yet Iran is a Shiite state and Saudi Arabia a Sunni state. Consequently, both countries denounce each other as purportedly misconstruing the holy Islamic teachings. The result is that within the Islamic world there is no objective way of determining which position is the truest to Islam.[43]

Islam, in fact, already possesses in its holy scriptures several inconsistencies that scholars throughout the centuries have struggled to reconcile. As a result, Sharia has a few basic principles worth noting. A general principle found in some Islamic schools of law is that of “necessity and need,” or Darura, meaning that the rules of Sharia are general in nature and applicable to all situations and to individual cases.[44] These rules, in practice, depart from much of orthodox Sharia and are meant to develop as necessary and as needed with public good and welfare serving as the legislative source. Necessity refers to threats against a person’s religion (Islam), life, property and mind or offspring.[45] Need indicates the conditions required for attaining well being.

Another important principle that a Muslim majority accepts is naskh, the repeal of inoperative or contradictory Koranic verses in favor of others, when determining legal issues.[46] Muslims view naskh as Allah’s prerogative to either withdraw or repeal his commandments by providing further revelations with different decisions on the same topic.[47] The elements of identifying naskh instances include: (1) the divine origin of conflicting verses; (2) conflict between two verses so that it is impossible to use them together; and (3) knowledge of the relative dates of both revelations.[48] Although accepted by the vast majority of Muslims, some modern Muslim scholars do not accept the principle of naskh and maintain that Muslims are bound by one set of verses or the other, depending on the state of their strength or weakness and the circumstances of the situation.[49] In light the varying legal practices and applications of such principles as naskh or "necessity," Western attorneys and businesspersons are bound to encounter different legal structures and dispute outcomes among Islamic states.

C. Elements of Islam

Non-Muslim attorneys or businesspersons interacting with the Islamic community should aim to understand the basic doctrines of Islam. Foremost, there are five requirements (the “Pillars of Islam”) that every Muslim should follow. These include: (1) shahada, the profession of faith;[50] (2) saum, fasting from sunrise to sunset during the month of Ramadan;[51] (3) haaj, the pilgrimage to Mecca;[52] (4) zakat, the giving of alms to the poor and (5) salat, praying five times every day, between sunrise and sunset.[53] Additionally, Islam forbids Muslims from eating pork or unritualized meat and from drinking alcohol. In many strict Islamic countries it is illegal to bring in forbidden foods or to publicly eat, smoke, drink and even swallow during the holy month of Ramadan. In fact, a major area of Islamic law concerns ritual purity and the five pillars of Islam.[54]

Almost every Muslim community has the imam[55] -- the religious and political leader, the Muezzin -- the one who calls the faithful to prayer from the mosque minaret, and the Fakir -- the doctor of the law.[56] Historically, the learned theologians of the Sunni community, the ‘ulama, had to recognize and elect a Caliph,[57] the successor to Mohammed.

The Caliph’s lineage presents the major rift of Islam, that between the Sunnis and Shiites. The Shiites believe that the caliph is a direct descendant of Mohammed’s son-in-law Ali.[58] Thus, Shiites are followers of Ali and his descendants, an apostolic succession of imams.[59] In fact, the basic distinguishing feature of the Shiite denomination is the central role the imam plays as religious and political leader of the community.[60] However, ninety percent of all Muslims are Sunnis who live in most Islamic regions, except Iran and Yemen where the Shiite reign.[61]

D. Sources of Sharia

1. Primary Sources

The origin of Islamic law can be traced to pagan pre-Islamic Bedouinism. Sharia owes nothing to Roman law although some of the Jewish Talmud influenced Islamic Jurisprudence.[62] The complete compendium of Allah’s commandments regarding every aspect of human life is called the Sharia.[63] Literally, Sharia means “the road to a watering place,” or “the way.”[64] Islamic scholars traditionally combined portions of the primary scriptural sources into treatises to create the law and to resolve social disputes. These treatises are known as works of fiqh.[65] In most Near and Middle Eastern Muslim countries the traditional fiqh system has been abandoned. However, in Saudi Arabia works of fiqh still remain the official sources of law.[66]

The primary source for Islamic law is the Koran. Although early Muslims wrote the Koran, believers view it as the word of Allah revealed to Mohammed through the Angel Gabriel.[67] Islam’s holiest scripture regulates people’s relationship with Allah, and deals with both legal and non-legal issues.[68] It has 6,237 verses, although only about 80 appear legally significant, at least from a Western attorney’s perspective.[69]

Originally, the Koran was the only scripture Muslims relied on for their religious and secular problems. In time, early Muslims realized the Koran alone was inadequate for resolving the difficulties of everyday living. They eventually developed the Sunna, the oral tradition of the prophet Mohammed.[70] Literally, Sunna means customary procedure or action.[71] Composed of what Mohammed said and did, the Sunna includes the Hadith passages,[72] which are taken from Mohammed’s biography, the Sira.[73] Each passage of the Sunna is actually called a Hadith. The Shiite and Sunnis have differing traditions, or stories, of Hadith.[74] Furthermore, the Shiite in general accept only the Koran and Sunna as the sources of Sharia and they disagree with the Sunnis over the authoritative interpretation of the Koran. They do not accept a Sunna Hadith unless one of their own imams acknowledges it.[75] Today, no absolute canon of Hadith has been established and accepted by all Islamic schools of thought.[76]

To construct the Hadiths, early Muslims used varying procedures to expand on the Koran and Sunna, such as using rational analogies of what Mohammed did or using the customary practices of the area.[77] To prevent apocalyptic Hadiths during these early developmental stages, Muslims began studying Hadith witnesses, or chains of oral narrations from the first generation of people who knew Mohammed. A fully recognized Hadith must include the name of each human link in the chain between the person who wrote it down and the Prophet.[78] Still, problems of agreement among the varying Islamic factions continued to manifest.[79] Eventually, the Sunna became anything proved to have been the practice of the Prophet and his oldest disciples.

2. Secondary Sources

Beyond these two primary sources, the major portion of Islamic law comes from Muslim jurists from the various legal schools.[80] Sharia is a jurist’s law in the same way that common law is a judge’s law and civil law is that of a legislator.[81] In a Muslim’s view, Sharia is the law of Allah, the Legislator, whose legislation is the Koran, which the jurists interpret.[82] Through the science of fiqh, the jurists determine the rule of law by first consulting the Koran, then the Sunna and then by applying their own reasoning.[83] The great jurists throughout the Islamic world, and their disciples, passed down their interpretation of the primary sources in the form of treatises and commentaries that form a fairly unified body of doctrine among the various Islamic schools.[84] These secondary sources of traditional Islamic law are called ijma -- a consensus among the legal jurists and the Muslim community as a whole.[85] Lengthy and subtle debates of classical Islamic jurists reaching a consensus on daily disputes are in the ijma studies or treatises. Many Muslims consider ijma as the law that the Koran and Sunna support.[86]

When the Koran, Sunna and ijma fail to provide adequate guidance in addressing a dispute, Islamic jurists turn to a fourth source of Sharia known as qiyas -- drawing parallels from the first three sources to solve controversies.[87] Another pre-tenth century source of Islamic law, often seen as a technique for qiyas, is ijtihad, which means that a scholar can solve a situation in new areas of controversy when there is no precedent.[88] For example, a scholar may have deemed certain acts specified in the Koran as no longer constituting the best interest of the Muslim community at the time. As an illustration, this occurred when an early scholar determined that he should not distribute lands captured during war even though the Koran in verses 59: 6-10 specified that Muslim combatants were entitled to the "spoils of war." The scholar argued that to distribute the lands would deprive the state of essential resources necessary for maintaining its armies to defend the territories.[89]

Early in Sharia development, jurists often used the ijtihad method of logical reasoning in interpreting the law.[90] However, by the tenth century, ijtihad fell from favor because it involved human reasoning in interpreting the word of Allah. Religious leaders viewed jurists as needing to accept the opinions of their predecessors, without exercising private reasoning, and using only the sacred texts to expound on the existing law.[91] Today, some Muslim scholars are demanding reform through the use of ijtihad and other traditional sources and principles of Sharia.[92]

Other supplementary sources include a jurist’s preference or discretionary opinion, which is called Al-Istihsan and means equity.[93] Al-Istisla occurs when the jurist considers public interests and policies to avoid an inappropriate result.[94] The more conservative schools of Islamic law invalidate these supplementary sources of judicial discretion. Additionally, the major Shiite schools do not even accept the qiyas, although the vast majority of Muslims do.[95] Today, the teaching of Islam occurs with the use of these writings and the primary sources in both Mosques and in Muslim universities, such as the greatest of all Muslim intellectual and spiritual centers, the thousand year old Al-Azhar Islamic University in Cairo.[96]

3. Sunni Legal Schools: the Madhhab

In the 200 years following the death of Mohammed, Islamic schools of law emerged and analyzed the Koran according to the needs of the people.[97] The Shiite branch of Islam formed its own conservative principles of Islamic law while the Sunnis spread throughout the world and developed several distinctive schools of their own. The Sunni world of today follows one of the four accepted legal schools or Madhhab: (1) the Hanafi school (found in the Far East and including Afghanistan, China, Egypt, India, Jordan, Israel, Syria, Pakistan and the Sudan); (2) the Maliki school (found in North Africa’s Magrib nations, and such countries as Ethiopia and Madagascar); (3) the Shafii school (found in Burma, Fiji, Indonesia, Malaysia, the Philippines and southern Thailand) and the Hanbali school (found mainly the Saudi Arabia).[98]

The oldest and presently largest school is the Hanafi school, named after its founder, as are all the Madhhab.[99] Based primarily in Egypt, the Hanafi school, the most liberal of the four, stresses the use of ijma, qiyas and other forms of analogical deduction to solve controversies not covered in the primary sources of Islamic jurisprudence. It also uses legal stratagems called hiyal to circumvent inconvenient Koranic prohibitions.[100]

The Maliki or the Medina school, is the most conservative and strictly Sunna of the four.[101] The Maliki jurists rely mostly on the primary sources with a strong insistence on ijma.[102] The Muwatta is the leading work of the Malikites and is one of the earliest extant law-books of Islam.[103]

Both the Hanafi and Maliki schools recognize another source of Islamic law known as ‘urf, or customary practice.[104] Prior to and throughout the duration of Islam, prevailing customs extensively influenced the development of Sharia and often scholars incorporated customs into Sharia principles that were not based on the Koran or Sunna.[105] Even though the application of ‘urf may prevail over qiyas, it never prevails over the Koran or Sunna. A contemporary problem with applying 'urf in Sharia courts derives from the use of non-indigenous judges and attorneys in some of the Gulf Arab States.[106] In Kuwait, for example, the courtroom consists largely of Egyptian, Syrian or Palestinian judiciary who are not aware of the local customs. Accordingly, custom may inevitably play a minor role as a source of Sharia in the emerging modern legal systems.

The third school, which Malik's student Imam Shafii established, does not recognize the use of ‘urf. The Shafii school is found in south India, southeast Asia, East Africa and the Arabian coastline.[107] Followers of the fourth school of Hanbali, which became active after a nineteenth century reform movement, are primarily in Saudi Arabia.[108] They are characterized by a fundamentalist rejection of any statement not firmly based on the Koran or Sunna.[109]

In essence, Sharia has four areas of law: (1)'Ibadat, or religious laws; (2) Mu'amalat, or civil laws; (3) Munakhat, or personal status laws and (4)'Ukubat, or the penal code.[110] The court system in most Islamic jurisdictions consists of the qadi, or judge administering Sharia (usually in religious courts involving private and family law),[111] and or the mufti, or judicial consultant and expert on Islamic Law. (The Hanafi school allows women to serve as a qadi under limited circumstances.)[112] The religious leader, judge or theologian makes the fatwa, or legal decision. In contrast to the system in the United States, the litigants, rather than attorneys, are the active participants in most Islamic courtrooms.[113] Additionally, it is typically the qadi who is the factfinder and decision maker because the jury system does not exist under Islamic law.[114] Given these circumstances, Westerners have often pejoratively characterized Islamic law as arbitrarily functioning through "qadi's justice."[115]

Islamic courts recognize three means of proof: (1) Muslim witness testimony (generally two honorable men, or one man and two women, although in some criminal trials, the Koran requires four witnesses); (2) defendant’s admission and (3) defendant’s refusal to take an oath denying the claim.[116] A possible area of conflict is that the qadi’s complete discretionary power in selecting witnesses may disfavor the non-Muslim party. However, the potential for discrimination exists in any legal system where discretion is available to one person.

II. Conflicts and contrasts in Family Laws

A. Marital Relations

1. The Marriage Contract

Unlike Christianity, Judaism or other religious traditions, the “clergy” of Islam are really religious scholars.[117] In turn, an Islamic marriage itself is a civil contract without the sacrament comprising Christian or Jewish wedding ceremonies.[118] The uniqueness of the Islamic marriage contract is that (1) the legislator dictates rights and obligations that the wedded parties cannot change, and (2) the marriage contract is regulated under religious jurisdiction to impart a character of sanctity.[119]

Couples, or their proxies, conclude the marriage contract through offer and acceptance.[120] The offeror can only withdraw from the proposal before, not after, the acceptance. For a valid contract, it is also essential for concerned parties to hold a mutual “hearing and understanding” of the offer and acceptance.[121] Age is a legal capacity that varies from state to state and between the genders. The legal capacity of a sound mind also varies, and a court may grant an insane person or an imbecile permission to marry.[122]

Under most schools of Islamic law (except the Hanafi school), women, even of legal capacity, require a guardian to conclude the contract. Such marriage guardians are agnates[123] in the order of descendants, ascendants, full brothers and their male descendants and agnatic uncles and their sons.[124] In the absence of agnates, guardianship goes to the closest living relative and then to the Islamic judge or Head of State.[125]

Conditions for a valid marriage differ from state to state. Many Islamic jurisdictions hold a contract void that forces the marriage on an unconsenting party, which in most cases is the woman. Other conditions include the presence of witnesses, the contract form and the eligibility of the woman.[126] Sunni jurists unanimously agree that witnesses are essential to ensure a lawful wedding. This tradition is based on the social policy of publicizing the event.

The requirements for witnesses are specific, though they may vary among jurisdictions. For the most part, witnesses must be adult, sane, and free; and two men or a man and two women.[127] Sharia jurists require that the marriage contract have immediate effect. It may impose advantageous conditions on either party, such as providing the wife with the right to dissolve the marriage or precluding the husband from taking another wife.[128]

A major area of conflict between Islamic law and other legal systems concerns the treatment of women. A Muslim woman is less free to select her husband because Sharia imposes many more restrictions on Muslim women than on Muslim men. For one thing, the notion of equality between the spouses as a condition for a valid marriage varies among the Islamic schools. In almost all sects, the woman must be immediately eligible for marriage to the person who proposes.[129] Herein lies the major impediments to a valid marriage. Sharia specifies a period of time, the iddat, before a divorced or widowed woman can remarry.[130]

Permanent prohibitions based on kindred, affinity, and fosterage are from the Koranic verses forbidding men to wed their mothers, daughters, sisters, aunts and nieces.[131] At the same time, it is quite common in Islamic states for first cousins to wed, a marriage considered illegal under many non-Muslim legal systems, such as most jurisdictions of the United States. The Koran also prohibits men from wedding women who have suckled them as infants (fosterage).[132] For the most part, fosterage is treated in the same way as the kindred prohibition, although various conditions may be involved.

Mixed marriages present another area of conflict for the Muslim and non-Muslim. The Sharia distinguishes between men and women when concerning a potential marriage between a Muslim and non-Muslim. Both Sunni and Shiite jurists agree that a Muslim woman cannot marry a non-Muslim man under any circumstances. The Koran states:

“You shall not wed pagan women, unless they embrace the faith. A believing slave-girl is better than an idolatress although she may please you. Nor shall you wed idolaters, unless they embrace the faith.”[133]

“Believers, when believing women seek refuge with you, test them. Allah best knows their faith. If you find them true believers do not return them to the infidels; they are not lawful to the infidels, nor are the infidels lawful to them.”[134]

Sharia prohibits Muslim men from marrying a woman outside the Abrahamic religions, an atheist, an idolater, or a worshipper of the sun or stars.[135]

2. Polygamy

The ability of a Muslim man to have multiple wives is one of the better known facts about Islam. The Koran states in Sura Nisa, verse 4:[136]

"...you may marry other women who seem good to you: two, three, or four of them."

A polygamous Muslim family could encounter enormous difficulties if they wished to immigrate to a non-Islamic state, such as the United States. But such a case would be extremely rare because Sharia places numerous restrictions on having multiple wives. For example, a Muslim man can have up to four simultaneous wives as long as he is able to equally maintain them.[137]

The Koran forbids a man from having two wives at the same time who are related to each other by kindred, affinity or fosterage.[138] In some Islamic states, such as Tunisia, polygamy is strictly forbidden and constitutes a criminal offense. The trend now seems to favor restricting polygamy by imposing such conditions as (1) the husband having considerable financial capability and (2) the husband having legitimate interest.[139]

3. Divorce

Under Sharia, divorce is tremendously inequitable. This creates an area of conflict between Muslim men and non-Muslim women seeking divorce. Modern Islamic legislation recognizes marriage dissolution when (1) the husband declares they are divorced, (2) the spouses mutually agree; or (3) a court orders the separation.[140] Commonly, for a valid termination of the marriage, the husband need merely utter, “I divorce you,” or the word “Talaq” three times in the presence of two witnesses, as stated in the Koran:

“When their waiting term is ended, either keep them honourably or part with them honourably. Call to witness two honest men among you and give your testimony before Allah.”[141]

Generally, the husband has a certain period of time, during iddat, to revoke his declaration of divorce.[142]

A divorce may be legal under Sharia when the spouses agree and the wife gives the husband something in exchange for her freedom.[143] For this type of divorce to be valid, the husband must have the legal ability to pronounce the divorce of a lawful marriage. Divorce in this manner generally involves: (1) an irrevocable dissolution, (2) the husband’s entitlement to the consideration, subject to previous reservations on the marriage contract, and (3) the dropping of all acquired financial rights for each spouse (e. g. deferred dowry and maintenance dues that are a common part of Muslim marriages).[144]

In some Islamic states, such as Tunisia, divorce can only take place through a court order.[145] Most jurisdictions that allow divorce through court orders provide five grounds for the woman's application to the court: (1) injury or discord (usually in the form of wife beating), (2) a defect, such as disease or insanity, on the part of the husband, (3) the husband’s failure to maintain the wife, (4) the absence of the husband (abandonment), and (5) imprisonment of the husband.[146] Generally, the judge does not order divorce except after determining irreconcilability between spouses. Although the Koran permits divorce, religious sentiment prefers that people avoid it whenever possible.

B. Adoption

Adoption in the Islamic world is expressly forbidden in the Koran:

“Allah has never put two hearts within one man’s body. He does not regard the wives whom you divorce as your mothers, nor your adopted sons as your own sons.... Name your adopted sons after their fathers... if you do not know their fathers, regard them as your brothers in faith and as your wards.”[147]

For the most part, orphaned children are placed under the care of relatives, if known, or other Muslim guardians that the court specifies. Tunisia grants capable married adults the right to adopt,[148] but most other Islamic states strictly abide by the Koranic prohibition.

C. Inheritance Laws: ‘Ilm Al-Fara’id, The Science of Shares

From a tribal patriarchal society, the Koran introduced new inheritance rules that emphasized spousal and parental ties.[149] Recently, several Islamic states enacted personal status laws and codes that reform the area of inheritance in favor of the nuclear family over the pre-Islamic patriarchal traditions.[150] Today, the jurists of all Sunni schools unanimously agree that estate inheritance comprises: (1) real and movable property; (2) moneys owed to the deceased; (3) rights in rem and (4) certain rights of recession.[151] Sharia inheritance laws, in most jurisdictions, make no distinction between movable and immovable property.[152]

Three grounds for inheritance exist under Sharia: (1) marriage; (2) consanguinity and (3) clientage (a form of protection between patron and client).[153] Major obstacles to inheritance include homicide, differences of religion and differences of domicile between Muslims and non-Muslims subject to non-Sharia laws.[154] In the latter two areas, non-Muslims may encounter difficulties in receiving inheritance. Sunni law forbids inheritance of a Muslim to a non-Muslim and vice versa.[155]

Koranic inequities between men and women concerning inheritance rights and witnesses are as follows:

"A male shall inherit twice as much as a female. If there be more than two girls, they shall have two-thirds of the inheritance; but if there be one only, she shall inherit the half. Parents shall inherit a sixth each, if the deceased have a child; but if he leave no children and his parents be his heirs, his mother shall have a third. If he have two brothers, his mother shall have a sixth after payment of his debts and any legacies he may have bequeathed."[156]

"Believers, when death approaches you, let two honest men from among you act as witnesses when you make your testaments...."[157]

III. Conflicts and contrasts in Criminal Laws

1. Penal Laws: Hudud

Islam divides criminal acts into three categories: (1) hudud, or crimes against Allah whose punishment is found in the Koran and Sunna; (2) quesas, or crimes of physical assault punishable by retaliation; and (3) ta’azir, or offenses not fixed in the Koran or Sunna, but which are within the discretion of the Islamic qadi.[158]

Sharia penal laws known as hudud mean “prevention, hindrance, restraint and prohibition” against Allah’s commandments.[159] Because hudud offenses are against Allah, the state acts as God’s agent and initiates the prosecution (as opposed to the quesas and ta’azir offenses where the victim or heir initiates the action).[160] The Hudud offenses found in the Koran are similar, in religious sentiment, to the ten commandments of the Jewish-Christian tradition. They include: (1) theft (saraqa); (2) adultery (zina); (3) defamation (qazaf); (4) highway robbery (haraba); (5) use of alcohol (khamr); (6) apostasy (ridda) and (7) rebellion (baghi).[161]

The Koran and Sunna specify the Hudud punishments. For example, the Koran states in Sura 5, verse 37:

"As for the man or woman who is guilty of theft, cut off their hands to punish them for their crimes. That is the punishment enjoined by Allah... But whoever repents and mends his ways after committing evil shall be pardoned by Allah."

In many cases these punishments clash with international human rights concerns. For example, Sharia designates amputating the hands and feet of thieves. Some Islamic states stone adulterous Muslims to death; public drunkards and defamers (e. g. people who falsely accuse others of fornication or child illegitimacy) to eighty lashes; and highway robbers to amputation, exile or execution. Some Islamic jurisdictions also impose the death penalty on cases of apostasy, or ridda, the voluntary renunciation of Islam.[162] Consider, for example, Khomeni’s well publicized irrevocable death sentence against the author Salman Rushdie for his implicit apostasy in his book, The Satanic Verses. Iran’s policies, however, are exceptional under Sharia principles because Iran represents the most fundamentally conservative Islamic state in existence today.[163]

Dhimmis, or non-Muslims, are not subject to hudud punishments for drinking, fornication or defamation. They may testify against other dhimmis, but not against a Muslim.[164] Under these circumstances, a non-Muslim may be critically disadvantaged in a Sharia court, even though they are supposed to receive the full protection of Sharia criminal law.

2. Crimes against the person: Quesas

Although religious Muslims consider hudud offenses the most egregious of criminal acts, to the non-Muslim, the quesas appear much more criminally severe. These crimes include varying degrees of murder and assault. Punishment includes the family of the victim retaliating with a "death-blow" against a willful murderer. The victim, however, can also wave punishment or ask for blood money (diyya ).

Some Sunni schools don’t impose the death penalty on a Muslim who kills a non-Muslim (the Shafii school). Retaliation is not imposed on a father or teacher who kills a child while correcting him or her.[165] A father or male guardian, in some jurisdictions, can freely kill a female relative who marred the family’s honor (usually through unchaste acts).[166] No doubt the international community concerned with human rights violations has difficulty reconciling such acts of legalized murder.

In most cases of intentional battery, Sharia imposes the “eye for an eye” Biblical form of punishment. Modifications are made in situations where injuries are difficult to duplicate. Many times such injuries require monetary compensation.[167]

Ta'azir, or penalties not fixed by the Koran or Sunna, include embezzlement, sodomy and perjury. These offenses threaten one of the five essential guarantees of Islam: (1) the right to practice religion; (2) the right to develop the mind; (3) the right to procreate; (4) the right to personal security and (5) the right to possess property and wealth.[168] The qadi has the power to punish these offenses using his or her discretionary judgment when determining the punishment. Still, the qadi is restricted to the Koranic range of acceptable punishments, which include reprimand, threats, boycott, public disclosure, fines, imprisonment, flogging and the death penalty for such crimes as sodomy or espionage.[169] Defenses include intoxication (in some Sunni schools, even though it is a hudud offense), infancy (during the period between seven and puberty the child’s family is liable for compensation), insanity, coercion and mistake.[170]

IV. Conflicts and contrasts in Commercial Law

A. Copyright Infringement

In the area of intangible property, Islamic law proves unfavorable to copyright protection. Islam disapproves of any obstruction to the duplication of original material because of the public policy that everyone benefits from widely disseminated knowledge.[171] However, some movement has occurred regarding authorship rights in Arab countries.

The Arab states party to the Convention of the Arab Cultural League of 1964 have agreed to enact legislation for protecting literary, artistic and scientific property rights.[172] In November 1981, Arab state members of the Arab Organization for Education, Culture and Science agreed on a model enactment for protecting the rights of authors.[173] In 1985, Saudi Arabian domestic legislation introduced the Arab Agreement for the Protection of Authors’ Rights.[174]

B. Gambling and Risk Taking: Qamara and Gharar

Another major restriction of Islamic law is the prohibition against gambling and contracts involving risk.[175] This means that a Muslim cannot sell something not yet in his or her possession. Future contracts are possible, but certain Islamic schools forbid insurance because they consider it a form of gambling. Strict Sharia jurisdictions hold as void the institutions of mortgages and insurance coverage, and the concepts of share-trading, financial futures and spot-commodity purchases.[176] Today, several Islamic states seek compromise on interpreting extreme views of strict Sharia and civil law precepts of the Western world.

Koranic prohibitions against gambling include:

"They ask you about drinking and gambling. Say: 'There is great harm in both, although they have some benefit for men; but their harm is far greater than their benefit.'"[177]

"Believers, do not consume your wealth among yourselves in vanity, but rather trade with it by mutual consent."[178]

Insurance presents one of the greatest obstacles to overcome in accommodating the Sharia principle of gharar. Although the majority of Arab countries regulate by statute insurance contracts for the purpose of profit,[179] traditional Islamic law rejects insurance contracts because they are seen as too uncertain.[180] Furthermore, traditional Muslims view insurance as a form of gambling because policyholders benefit from their investments only if a loss occurs. Still, countries such as Saudi Arabia recognize the necessary role insurance companies play in business ventures. To accommodate the Sharia principles, Saudi Arabia "tolerates" insurance practices with the understanding that insurance companies put their profits back into land development or other business enterprises in the Kingdom.[181]

C. The Principle of Usury: Riba

Probably the major area of divergence and conflict between Islamic business law and that of other legal systems is the concept of usury, known as riba, or the unlawful advantage by way of charging interest.[182] The Koranic prohibition against usury is found in the chapter entitled The Cow, or Sura Al-Baraq:

“Believers, have fear of Allah and waive what is still due to you from usury, if your faith be true; or war shall be declared against you by Allah and His apostle. If you repent, you may retain your principal, suffering no loss and causing none.[183]

This doctrine most likely comes from the aversion to the pre-Islamic practice of exploiting debtors.[184] The Prophet Mohammed, a merchant himself, instituted the social reform of riba in order to protect the exploited debtor. Still, the debtor under Sharia must eventually pay his debt by money or reasonably equitable labor, or he may be imprisoned.[185]

Recently, the Islamic community has supported the enforcement of riba. In 1986, the Islamic Fiqh (Jurisprudence) Academy of the Islamic Conference, condemned all interest-bearing transactions as void.[186] On the other hand, some modern Islamic jurists have also adopted a more liberal approach on riba by interpreting it as involving “excessive interest.”[187] This approach, based on the Koranic verse “...do not live on usury, doubling your wealth many times over,” allows for a fair return on commercial capital, as long as the interest is not excessive.[188]

The biggest concern for many foreign investors is in the area of banking because non-Islamic practices obviously violate the riba prohibition. Pro-Islamic economists have optimistically discussed such banking implementation as (1) equity sharing between client and bank; (2) bonds on which no interest is earned, but whose market value varies with the anticipated profit share and (3) lease financing.[189]

A fundamental principle of banking under Islamic law is to provide financing only on the basis of the bank sharing both risk and profit with the borrower.[190] The 1979 Iranian domestic Act of Nationalization of Banks (1) prohibits banks from paying interest and (2) establishes an Islamic legal framework for the use of capital.