By Jessica Richardson, Law & Policy
The President of Sudan, Omar Al-Bashir, who is indicted by the International Criminal Court for genocide, war crimes, and crimes against humanity, has recently made statements of his intention and desire to implement Sharia law throughout Sudan. This could have profound effects on the people of Sudan, especially women. Over the next few weeks, we will assess the implications of such an endeavor in a series of four blogs. The first blog (below) will review some of the basics of Sharia law and some of its elements. Then, to gain a clearer understanding of how Sharia law works, in the second blog, we will examine the Iranian system after the Islamic Revolution in 1979. The third blog will analyze some of the possible consequences of making Sudan an Islamic state. And, the final blog will look at various views within the Sudanese and international community regarding an Islamic state of Sudan and President Bashir’s intentions.
Sharia law in its simplest form is the moral code and religious law of Islam. In its strictest definition, it is divine law. It provides the structure of living one’s life as a devout Muslim, by providing a method of arriving at decisions on how to live through the study of religious text, to determine divine will. Sharia law deals with all aspects of daily life from contracts and crime to social issues, including dress and daily hygiene.
Sharia law has two primary sources, the Quran and the Sunnah, which includes the sayings and living habits of Muhammad, the last prophet of Islam. In Islam, there is only one Quran, which Muslims believe is the unalterable word of God. On the other hand, the Sunnah (reports of Muhammad’s sayings, his actions, his tacit approval of actions and his demeanor) is primarily contained in the Hadith of which there are many compilations. These two sources guide Muslims in their daily lives. (For more information, click here).
Fiqh meaning “intelligence” or Islamic jurisprudence refers to the process of interpreting these two sources. This interpretation is dependent on the Quran, Sunnah, Ijma (collective reasoning among scholars), and Qiyas/Ijitihad (individual reasoning or analogy). In instances where the Quran and Sunnah are silent, Muslim jurists must arrive at an answer using Ijma or Qiyas/Ijitihad. Of these sources, both the Quran and the Sunnah are preferred.
The branches of fiqh refer to the various categories and subject areas of Islamic law, which cover an expansive scope of the law. In some areas, across countries, cultures and schools of thought, there is much dissimilarity in the law.[i] These branches incorporate:
(1) Rituals (9) Torts
(2) Domestic Relations (10) Criminal
(3) Wills, Trusts, Estates, and Inheritance (11) Evidence
(4) Contracts, Trade and Commerce (12) Property
(5) Administrative Procedure (13) War
(6) Taxation and Public Finance (14) Relations with Non-Muslims
(7) Constitutional (15) Ethics
(8) International Relations
The way in which actions are assessed in Sharia law is unique because not all acts are considered legal or illegal. The five categories of action assessment are: fard (obligatory), mustahabb (recommended), mubah (neutral), makruh (discouraged), and haraam (forbidden). As a legal system, however, Sharia law treats religious and moral transgression different from legal transgressions in that “only the legal rules of Sharia are justifiable” and only the obligatory or forbidden categories can be the subject of legal action.
Possibly the most criticized aspect of Sharia law is in its dealings with criminal law. Crimes specifically mentioned in the Quran, known as hadd or hodud (pl.), constitute violations against the claims of God and carry with them fixed or predetermined punishments, including limb amputation and death by stoning or beheading. These offenses include theft, adultery, apostasy, and the consumption of alcohol. Offenses against persons, for example homicide and crimes that cause serious bodily harm or wounding, are divided into two categories—those regarding retaliation (qesas) and those regarding financial compensation (diyeh). The victim’s family has the ability to decide whether to exact retributive punishment or accept an amount of money. These two categories of crimes constitute Islamic criminal law in its strict sense and possess features, which set it apart from other legal systems. The final category of Sharia criminal law known as ta’zir, often thought of as deterrent punishments, because judges have broad discretion to choose the appropriate punishment for sinful or forbidden behavior, acts endangering public order or state security.[ii]
Now that we have reviewed some of the basics of Sharia law, we must ask ourselves whether a state, which purports to advocate for equality and the human rights for all its citizens, could successfully incorporate Sharia law into its constitution used to govern even non-believers. In our next blog, we will explore some of these issues and others in the context of Iran.