Sunni Concept of Sharia--What is Sharia

[Woodrow LI]

Sharia is very much misunderstood not just by non-Muslims but also by many Muslims
I have no intent to glamorize or demonize Sharia, I just want to state what it is. I do not claim to be an expert or even particularly knowledgeable. but I do believe I have a functional understanding of the Hanafi Madhab of sharia, which is what I will put most emphasis on,
I do welcome input from other Muslims especially those knowledgeable about other madhabs.
As an introduction a short description of what Shariah is in my understanding.
As a legal code Shatia is classified as Religious law
Shariah is any of the established legal codes that do not contradict Islamic teachings. In the Sunni view there are 4 sets of code also called schools. each school considered equal and any one is valuable. If an entity is to follow shariah they must adhere to one of the 4 schools of Islamic Jurisprudence--called a madhab.
There is/was a 5th school called Sahiri I do not believe it is used any more and I know nothing about it

The 4 madhabs Sunni recognize are HANAFI,MALIKI, HANBALI and SHAFI'I
The 4 schools contain
Hygiene and purification laws,.
Economic laws,
Dietary laws
Theological obligations,
Marital jurisprudence,
Criminal jurisprudence,
Military jurisprudence,
Dress code,
The various laws in each category are of 5 types
Fard-Required, obligatory
Mustahabb- proper behavior, not exactly laws but can be used as part of the criteria in establishing guilt, innocence, level of punishment, suitability to serve as a witness etc
Mubah-Permissable
Mukrah-undesirable generally not considered a crime or forbidden
Haraam- forbidden can be suject to punishment

The primary sources of Sharia are
Qur'an
Sunnah (Including the Ahadith
The sources of determining Fiqh are:
Interpretations of the Quran
Interpretations of the Sunnah
Ijma, consensus amongst scholars ("collective reasoning")
Qiyas/Ijtihad analogical deduction ("individual reasoning")
in addition other factors may be used such as:
Comparative law
Local custom
public interest
The establishment of Fiqh is not considered infallible and change is permissable. This accounts in part for the differences in the 4 Madhabs.

Please feel free to ask questions and give input. As Criminal Jurisprudence is the most controversial and most visible part of Shariah I plan to discuss that the most. --Reminder: My views will be based primarily on the Hanafi Madhab

 

[Gharib]

Shariah is not a Religious Law, it is called so in the west to demonize it. The laws of Allah (shariah) extend beyond just religious matters.

There weren't 5 madhhabs, initially there were more like 10 at least. They died down due to the scholars requests that their teachings not be documented. And others just lost their followers to the other madhhabs.

Sharia encompasses all aspects of human life. From the rights of an unborn child to the rights of a deceased old man. It deals will all things and all matters. From sneezing to sleeping.

 

[Woodrow LI]

Shariah is not a Religious Law, it is called so in the west to demonize it. The laws of Allah (shariah) extend beyond just religious matters.

There weren't 5 madhhabs, initially there were more like 10 at least. They died down due to the scholars requests that their teachings not be documented. And others just lost their followers to the other madhhabs.

Sharia encompasses all aspects of human life. From the rights of an unborn child to the rights of a deceased old man. It deals will all things and all matters. From sneezing to sleeping.

Jazakallah Khair your input is welcome and appreciated

You are correct, This is a good time to point out some misconceptions about Sharia. The Western Court systems in their educational facilities do classify Sharia as Religious law.
But as you say that is not accurate, Sharia is sharia and it does not fit into any of the classifications as used in western Law schools. At the moment until the world gains a concept as to what Sharia is we will be stuck with it classified as Religious law in Western Law Schools.
It may take many generations before it becomes seen that Sharia is a seperate classification from the current termenology of legal system classifications
Now a short brief introduction as to what is meant by Criminal Jurisprudence in the Hanafi Madhab
In sharia law like in other Criminal systems there are different categories of Crimes. I feel the least understood by non-Muslims are the Haad Crimes also called Hadud
These crimes generally carry a fixed non-negotiable punishment. If a person is found guilty the punishment will be carried out exactly as prescribed. Because of the finality of these laws proof of guilt is extremely strict. It is very difficult to prove guilt in these cases.

The Haad crimes in accordance with the Hanafi Madhab are:

Drinking alcohol (sharb al-khamr, شرب الخمر)--This is interpreted as the deliberate taking of any intoxicant-- exceptions are made if there are legitimate medical reasons
Theft (as-sariqah, السرقة)
Highway robbery (qat`a at-tariyq, قطع الطريق)
Illegal sexual intercourse (az-zinā', الزناء)
False accusation of illegal sexual intercourse (qadhf, القذف)
Apostasy (irtidād or ridda, ارتداد)

The definitions of these crimes and what constitutes proof of guilt does differ in the Hanafi Madhab from the other Madhabs..
For the first part let us begin with just discussion the first one

Drinking alcohol:
Prescribed non-negotiable punishment under the Hanafi Madhab differs considerably from the prescribed punishments for other crimes in that punishment will essentially be in accordance with local custom. It will differ by locality

Some views on the punishment for drinking alcohol

In the Hanafi madhab in Fatawa ‘Al-Khulasa lil-Hanafiyyah’ it is stated:

If an intoxicating amount has been taken then according to Imam Muhammad hadd will be necessary and according to Imam Abu Hanifah and Imam Abu Yusuf he will be reprimanded severely, but the hadd will not be imposed.

Tazir (reprimand) is such a punishment that holds no specific amount and it is for the Judge to decide.

Bear in mind that according to some scholars, in certain cases, tazir could prove to be more severe than the hadd itself e.g. When the person persistently commits the crime.
SOURCE Islam and Drugs

 

[Woodrow LI]

Proof of quilt for drinking alcohol or using intoxicants

Like all of the Hadud crimes, proof guilt is nearly impossible to prove the minimum proof a hahud crine was committed is:
The eye witness testimony of 4 reliable witnesses each reporting the same exact event and giving detailed accounts of how they know it occured
or 4 seperate confessions by the accused of the same event and the confessions given at different times.
If the guilt is based upon confession the accused is given 4 opportunities to recant the confession before punishment is carried out.'

If a Hadud crime is not proven, the person may be accused of a lessor crime

THEFT
Definition in the Hanafi Madhab

While theft is easily defined as the "wrongful taking of property that belongs to another person, not all theft are hadud in the hanafi Madhab
some thefts that are not hadud

Theft of an article valued at less than an ashrafi [a gold coin] In current terms this would be about $1000 US
A theft committed jointly by a number of persons.
A theft committed by a non-adult
Theft of a wife's or of a husband's goods.
Theft of a shroud.--this includes all clothing items
Theft of the goods of a near relation, e.g., a nephew or a brother.
A theft committed by refusing to return a thing taken on loan.
Thefts committed by followers of other religions living under Muslim protection.
Theft of a copy of the Qur'an.
Theft of wood or other perishable goods
There may be other items that if stolen would not constitute Hadud theft

PUNISHMENT FOR HADUD THEFT IS VERY SEVERE AND IS NOT NEGOTIABLE.
It is the amputation of a limb

PROOF OF GUILT
First it must be shown the item taken does constitute Hadud theft
Because of the severity of the punishment guilt is nearly impossible to prove.
Minimum criteria for proof of guilt is the same as for the use of intoxicants
The eye witness testimony of 4 reliable witnesses each reporting the same exact event and giving detailed accounts of how they know it occured
or 4 seperate confessions by the accused of the same event and the confessions given at different times.
If the guilt is based upon confession the accused is given 4 opportunities to recant the confession before punishment is carried out.'

 

[Woodrow LI]

Highway robbery

Hanafi definition;
Murder or robbery by force

PUNISHMENT
Like all Hadud crime the punishment is severe and physical
If the victim is killed and property is taken the quilty party is to be killed and the body crucified
If the victim is killed and no property taken the quilty party is to be killed
If property is taken and the victem is not killed the guilty party is to have his righ arm and left leg amputated

PROOF OF GUILT
The same as for the other hadud crimes

ILLEGAL SEXUAL INTERCOURSE
This is a very large categotry and one that often makes the news as it is what many people think calls for the stoning of women accused of adultry
DEFINITION
Any sexual act except for that allowed by the nikkah between a man and womsn

PUNISHMENT
In accordance with local tradition

PROOF OF GUILT
Fhe same as for the other hadud crimes

FALSE ACCUSATION OF ZINA (This is also interpreted as meaning false accusation of any hadud crime, including false testimony of a witness)

PUNISHMENT
The maximum punishment for the crime they are accusing the person of

PROOF OF GUILT
The same as for the other hadud crimes

APOSTASY
DEFINITION
For a Muslim to publicly leave Islam to the point they openly denounce Islam, contrive to lead others against Islam, openly engage in violent anti-Islam acts such as harming clergy, damaging or destroying Mosques, engaging in war against an Islamic Nation. etc
PUNISHMENT
Death

PROOF OF GUILT
The same as for the other Hadud crimes.

I do not think anyone has ever been convicted of a Hadud crime under the Hanafi Madhab. I can not find any evidence of such.

 

[Woodrow LI]

The Next set of Crimes are the

Qisas crimes

These are also called the Eye for an eye, tooth for a tooth crimes

There are 2 crimes that fall under this
Murder
Battery

PUNISHMENT

This is determined by the victim or the next of kin. They can make one of 3 choices, but only one choice
1. the exact same thing be done to the perpetrator that they did to the victim
2. Monetary compensation for pain, suffering, loss of income, etc
3. Full forgiveness, if a person can find it in their heart to do so.
Choice 3 is considered to be the most honorable choice

PROOF OF GUILT
This is virtually identical with what is found in other court systems world wide

 

[Woodrow LI]

The next group of Criminal laws are the Taz'ir
Taz'ir

Tazir includes any crime that does not fit into Hudud or Qisas and which therefore has no punishment specified in the Quran. These types of crimes range from homosexuality to perjury to treason.
Essentially these are laws chosen by the community to protect that they feel are individual rights.

PUNISHMENT
Decided by local judges

PROOF OF GUILT
Determined by local community

the last grouping of Sharia Criminal laws are:
SIYASAH
These are the laws of a State or Nation
A Muslim is to abide by the laws of the Nation they live in. If they can not they are obligated to leave that nation

 

[Woodrow LI]

Another area of Sharia that seems to be of concern to non Muslims are the rules of war.
I believe Islam is the only religion that sets limitations as to what can be done in a state of war.

One thing that impresses me are the rights of the enemy. 10 specific ones are laid out

1. Torture with Fire
In the hadith there is a saying of the Prophet that: "Punishment by
fire does not behove anyone except the Master of the Fire" (Abu
Dawud). The injunction deduced from this saying is that the adversary
should not be burnt alive.

2. Protection of the Wounded
"Do not attack a wounded person"-thus said the Prophet. This
means that the wounded soldiers who are not fit to fight, nor actually
fighting, should not be attacked.

3. The Prisoner of War Should not be Slain
"No prisoner should be put to the sword"-a very clear and
unequivocal instruction given by the Prophet (S).

4. No one Should be Tied to be Killed
"The Prophet has prohibited the killing of anyone who is tied or
is in captivity."

5. No Looting and Destruction in the Enemy's Country
Muslims have also been instructed by the Prophet that if they
should enter the enemy's territory, they should not indulge in pillage or
plunder nor destroy the residential areas, nor touch the property of
anyone except those who are fighting with them. It has been narrated
in the hadith: "The Prophet has prohibited the believers from loot and
plunder" (al-Bukhari; Abu Dawud). His injunction is: "The loot is no
more lawful than the carrion" (Abu Dawud). Abu Bakr al-Siddiq used
to instruct the soldiers while sending them to war, "Do not destroy the
villages and towns, do not spoil the cultivated fields and gardens, and
do not slaughter the cattle." The booty of war which is acquired from
the battleground is altogether different from this. It consists of the
wealth, provisions and equipment captured only from the camps and
military headquarters of the combatant armies.

6. Sanctity of Property
The Muslims have also been prohibited from taking anything from
the general public of a conquered country without paying for it. If in a
war the Muslim army occupies an area of the enemy country, and is
encamped there, it does not have the right to use the things belonging
to the people without their consent. If they need anything, they should
purchase it from the local population or should obtain permission from
the owners. Abu Bakr al-Siddiq, while instructing the Muslim armies
being despatched to the battlefront would go to the extent of saying
that Muslim soldiers should not even use the milk of the milch cattle
without the permission of their owners.

7. Sanctity of a Dead Body
Islam has categorically prohibited its followers from disgracing or
mutilating the corpses of their enemies as was practised in Arabia
before the advent of Islam. It has been said in the hadith: "The Prophet
has prohibited us from mutilating the corpses of the enemies" (al-
Bukhari; AbC Dawud). The occasion on which this order was given is
highly instructive. In the Battle of Uhud the disbelievers mutilated the
bodies of the Muslims, who had fallen on the battlefield and sacrificed
their lives for the sake of Islam, by cutting off their ears and noses, and
threading them together to put round their necks as trophies of war.
The abdomen of Hamzah, the uncle of the Prophet, was ripped open by
Quraysh, his liver was taken out and chewed by Hind, the wife of Abu
Sufyan, the leader of the Meccan army. The Muslims were naturally
enraged by this horrible sight. But the Prophet asked his followers not
to mete out similar treatment to the dead bodies of the enemies. This
great example of forbearance and restraint is sufficient to convince any
reasonable man who is not blinded by prejudice or bias, that Islam is
really the religion sent down by the Creator of the universe, and that if
human emotions had any admission in Islam, then this horrible sight on
the battlefield of Uhud would have provoked the Prophet to order his
followers to mutilate the bodies of their enemy in the same manner.

8. Return of Corpses of the Enemy
In the Battle of Ahzab a very renowned and redoubtable warrior
of the enemy was killed and his body fell down in the trench which the
Muslims had dug for the defence of Medina. The unbelievers presented
ten thousand dinars to the Prophet and requested that the dead body of
their fallen warrior may be handed over to them. The Prophet replied
"I do not sell dead bodies. You can take away the corpse of your fallen
comrade."

9. Prohibition of Breach of Treaties
Islam has strictly prohibited treachery. One of the instructions
that the Prophet used to give to the Muslim warriors while sending
them to the battlefront was: "Do not be guilty of breach of faith."
This order has been repeated in the Holy Quran and the hadith again
and again, that if the enemy acts treacherously let him do so, you
should never go back on your promise. There is a famous incident in
the peace treaty of Hudaybiyyah, when after the settlement of the
terms of the treaty, Abu Jandal, the son of the emissary of the
unbelievers who had negotiated this treaty with the Muslims, came,
fettered and blood-stained, rushing to the Muslim camp and crying for
help. The Prophet told him "Since the terms of the treaty have been
settled, we are not in a position to help you out. You should go back
with your father. God will provide you with some other opportunity to
escape this persecution." The entire Muslim army was deeply touched
and grieved at the sad plight of Abu Jandal and many of them were
moved to tears. But when the Prophet declared that "We cannot break
the agreement", not even a single person came forward to help the
unfortunate prisoner, so the unbelievers forcibly dragged him back to
Makkah. This is an unparalleled example of the observance of the terms
of agreement by the Muslims, and Islamic history can show many
examples of a similar nature.

10. Rules About Declaration of War
It has been laid down in the Holy Quran: "If you apprehend
breach of treaty from a people, then openly throw the treaty at their
faces" (8:58). In this verse, Muslims have been prohibited from opening
hostilities against their enemies without properly declaring war against
them, unless of course, the adversary has already started aggression
against them. Otherwise the Quran has clearly given the injunction to
Muslims that they should intimate to their enemies that no treaty exists
between them, and they are at war with them. The present day 'inter-
national law' has also laid down that hostilities should not be started
without declaration of war, but since it is a man-made rule, they are
free to violate it whenever it is convenient. On the other hand, the laws
for Muslims have been framed by God, hence they cannot be violated.

SOURCE RIGHTS OF ENEMIES AT WAR

 

[Woodrow LI]

Under Sharia some things that are forbidden in war
The use of fire as a weapon
Harming of women, children, elderly, disabled, clergy of any religion, non-combatants
The destruction of trees, crops, livestock, houses, places of worship (any Faith)
Excessive force, the enemy is to be given opportunity to surrender, force should be limited to only what is required to stop the aggressor
Fight only in defence not to take a part in aggression

 

[Woodrow LI]

Sharia Dress codes
While Sharia law does prescribe for very strict rules of modesty and dress, no where does it require any earthly punishment for violation of it.
Links to a few sites about Islamic Dress codes

Laws and Practices: Why Do Muslims Have a Dress Code | Books on Islam and Muslims | Al-Islam.org

Dress Code of Muslim women | islam.ru

Quran-Islam.org - True Islam