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POLITICAL SCIENCE II PROJECT ISLAMIC LAW AND LEGAL SYSTEM

NAME: KARTHIK SHIVA. B CLASS: II- YEAR A SECTION UNIVERSITY: SCHOOL OF EXCELLENCE IN LAW

INTRODUCTION Islamic Law (Muhammadan Law) is a body of rules that is primarily based on the religious texts and treatises of Islam. In secular jurisprudence, sharia is classified as religious law, which is one of the three major categories that individual legal systems generally fall under, alongside civil law and common law. The Islamic Legal system is called Sharia is the moral code and religious law of Islam. Sharia deals with many topics addressed by secular law, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. The etymology of sharia as a "path" or "way" comes from the Qur'anic verse1 : "Then we put thee on the right Way of religion so follow thou that Way, and follow not the desires of those who know not. The law constitutes a divinely ordained path of conduct that guides Muslims toward a practical expression of religious conviction in this world and the goal of divine favour in the world to come. The Sharia is considered to be reflection of Gods Will for mankind. The Sharia law is based on the concept of unqualified submission to the Allah. Islamic Law gradually grew from a corpus of doctrines to a voluminous legal commentaries and literature. Contemporary Islamic law does not exclusively contain Islamic Principles alone. It is an amalgamation and culmination of various legal systems of the world. Sharia, in its strictest definition means a divine law. As such, it is related to but different from fiqh, which is emphasized as the human interpretation of the fiqh. The sharia is not formally a code, nor a welldefined set of rules. The sharia is characterized as a discussion on the duties of Muslims based on
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THE HOLY QURAN 45: 18

both the opinion of the Muslim community and extensive literature.

SOURCES OF SHARIA LAW The main sources of sharia are the Holy Quran and the Sunnah. The Holy Quran consists of 6236 verses called as ayah. It is divided into 114 chapters called as a sura out of which 80 verses deal exclusively with legal aspects. Muslims believe that the Quran was verbally revealed from God to Muhammad through the angel Gabriel (Jibril), gradually over a period of approximately 23 years, beginning on 22 December 609 CE, when Muhammad was 40, and concluding in 632 CE, the year of his death. The Sunnah is nothing but the life, teaching, way and practices of Prophet Mohammed. The sunnah of Muhammad includes his specific words, habits, practices, and silent approvals. Sunnah is the way of life prescribed as normative for Muslims on the basis of the teachings and practices of Islamic prophet Muhammad and interpretations of the Quran. The sunnah is a source of Islamic law, second only to the Quran. The Sunnah is derived from the Hadith. INTERPRETATION OF SHARIA LAW The process of interpreting the sharia is covered under Islamic Jurisprudence called as fiqh.It is the human interpretation of the divine law. The word fiqh means intelligence or deep understanding. It depends of four sources namely; The Interpretation of the Quran; The Interpretation of the Sunnah; Ijma which refers to the collective consensus of the Islamic Legal Scholars; Qiyas (Ijtihad) which refers to analogical deductions of the sharia law in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction (nass) to a new circumstance and create a new injunction. In Shi'a jurisprudence the fourth source may be expanded to include formal logic (mantiq). Historically, the fiqh also came to include comparative law, local customs (urf) and laws motivated by public

interest, so long as they were allowed by the above four sources. Because of the involvement of human interpretation, the fiqh is considered fallible, and thus not a part of Sharia.It is interpreted by Islamic judges (qadis) with varying responsibilities for the religious leaders (imams). Only for questions not directly addressed in the primary sources, the application of sharia is extended through consensus of the religious scholars (ulama) thought to embody the consensus of the Muslim Community. DEVELOPMENT OF SHARIA LAW The origin of sharia is the Qur'an, the word of God, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca). Sharia underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (63234) and Umar (63444), during which time many questions were brought to the attention of Muhammad's closest comrades for consultation.Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi'i (767820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. Under the hegemony of the Umayyad Dynasty, Islam was transformed from a small and closely knit religious community of medina to a vast military empire with its central government at Damascus. During this period there was a growing wave of hostility between the religious scholars and the rulers. This lead to change in the ruling class with Abbasid dynasty coming to power in the year 750 C.E. This marked the actual beginning of Islamic Jurisprudence. The Abbasid dynasty gave an impetus to the Islamic legal scholars. A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries. The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions. The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence. The Abbasid made the institution of qadi independent from the government, but this separation wasn't always respected. Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Qur'an or the sunnah. Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behavior for Muslims. During this period the task of formulating legal doctrines was given to a separate official called faqih

(jurist) and the function of qadis were limited to applying these legal doctrines. The Sharia prohibited Usury (Riba) and Speculation (Gharar) but certain schools found ingenious methods like Hiyal and Khameesa (Land Tenure system) to circumvent this law. The Hanafi and Maliki school do not permit Hiyal. Unequal barter was also prohibited by the Quran and the Prophet. The Quran provided the right to inheritance to close relatives of the deceased in contrast to the earlier tribal practice of the male agnate relatives taking the estate.

SCHOOLS

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There exist five schools of thought of fiqh, all founded within the first four centuries of Islam. Four are Sunni Hanafi, Maliki, Shafi'i and Hanbali and one Shia: Ja'fari (followed by most Shia Muslims). The Salafi movement attracts followers from various schools of fiqh, and is based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims. Al Shafii the founder of the Shafii school of Islam wanted a uniform and common law for all the muslim but it could not be achieved. However his work added one more school to Islamic schools namely, the Hanbali school. The main point of difference between the Shafii and the Hanbali school was that the Shafii school fully followed the Shafii teachings however the followers of the Hanbali school followed the Quran rigidly. The Maliki and Hanafi schools could neither deny the authority of the Prophet nor did they change the existing body of law in tune with the precedents set by Prophet. The Hanafi school is followed in Middle East and in the Indian subcontinent. The Maliki school is found in North, West and Central Africa. The Shafii school is predominantly found in East Africa and parts of Arabian Peninsula, Malaysia and Indonesia. The Hanbali school is found in Saudi Arabia. In the concept of Qanun (Legislations) to supplement the sharia came into being. The main point of conflict between the two sects of Islam namely the Sunnis and the Shias was that the Sunni Muslims considered that the prophet was the last messenger of Allah and that divinity stopped with him. But the Shias considered that divinity continued even after Prophet through his descendents which began with his daughter Fathima. The Shias respected and revered this line of divinity. ISLAMIC LEGAL SYSTEM Judicial proceedings in Sharia Courts have significant differences with other legal traditions, including those in both common law and civil law. Sharia courts traditionally do not rely on

lawyers; plaintiffs and defendants have to represent themselves. Trials are conducted solely by the judge, and there is no jury system. There is no pre-trial investigation process, and no crossexamination of witnesses. Unlike common law, judges' verdicts do not set binding precedents under the principle of stare decisis, and unlike civil law, sharia does not utilize formally codified statutes (these were first introduced only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle). Sharia courts also maintain a distinctive custom of prioritizing oral testimony.Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character. Each female witness is treated to be half valid witness. The testimony to establish the crime of adultery, or zina must be from four direct witnesses. A confession, an oath, or the oral testimony of a witness are the main evidence admissible in a hudud case. Written evidence is only admissible when deemed reliable by the judge. Forensic evidence and other circumstantial evidence are rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases. Sharia's rules on written evidence necessarily diminish the utility of written contracts to structure economic relations, and Timur Kuran has noted the predominance of a "largely oral contracting culture" in pre-modern Islamic society. In lieu of written evidence, oaths are accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff. Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury: instead oaths are a solemn procedure performed as a final part of the evidence process. Sharia Law is followed in present day in 20 Islamic countries such as Saudi Arabia, Egypt, Iran, Sudan, Iraq, etc., CONCLUSION Islamic law remains religious, as it has evolved in the modern era it has some characteristics that are not dissimilar to western codes. It is a positive law and, strictly speaking, requires credible evidence, witnesses, and testimony. It has been in constant state of flux and throughout these changes, remarkable for having been telescoped into only a few years more than a century, sharia continued to function in the new Muslim successor states of the Ottoman Empire alongside the secular codes. In some nations, such as Saudi Arabia and Sudan sharia has remained the

exclusive source of law. In Iran, under the rule of the mullahs, the Twelver shii version of sharia is the overriding law. Even among secularized Arab Muslim nations such as Egypt and Tunisia, sharia courts may adjudicate issues of family law such as marriage, divorce, and inheritance. In Tunisia polygyny and extra-judicial divorce is prohibited by the Law of Personal Status, 1957. Though it is contrary to the Sharia Law it is accepted in view of changes in modern times. With the proliferation of moderate, radical, and extremist Islamic political movements throughout the Islamic world, sharia has again come to the fore among Muslim communities. Sharia has been made an integral part of their ideologies because without sharia, they can have no legitimacy. It is interesting to note that all Muslim nations, even those where sharia is the sole rule of law, are members of the United Nations and subscribe to its charters and procedures and conduct their foreign relations in accordance with the prescriptions of general international law. Yet the Organisation of Islamic Conference has refused to accept the UDHR and have adopted the Cairo Declaration of Human Rights which states that all human rights commitments of Islamic countries is subject to the Sharia. The attitude of changing and adapting with changing times have ensured the survival of the Sharia (Islamic Law) in modern times as a practical system of law and it also provides an inspiration for the future.