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A Brief Introduction to Islamic Law

Contents

Introduction

Getting Our Feet Wet

(3rd Draft)

From the tragicomedy Remembering Uzza

For the purpose of explaining Islamic jurisprudence (fiqh) in terms more familiar to non-Muslims, I divide the Sharia i.e. Islamic Law into two broad categories: Criminal Law and Family Law.

This definition and division many of you may find completely spurious as you read this guide and come to terms with the reality of Islamic Law.

You may even come to the conclusion that to accommodate the Law of Allah and His Messenger, the Prophet Muhammad within Western jurisprudence, as many Muslims are demanding, may mean denying much of what you believe in when it comes to the rule of Law, crime and punishment and equality before the Law.

Criminal Law

Sin in Islam, like in most religion, is a crime against God. Islamic Law is all about sins; mostly the Greater Sins of which there are more than forty, at this writing.

The Greater Sins are those where the Koran, or a saying of the Prophet explicitly state, or imply that those who commit these sins will go to Hell; or where there is a consensus among religious experts that the sinner is going to Hell.

The number of Greater Sins is always bound to grow, as it has in the past, as religious scholars discover new Greater Sins in the 6,346^[1] verses of the Koran and the more than 70,000 collected sayings of the Prophet Muhammad.

The Greater Sins all are punishable by death, mutilation, retaliation in kind, or blood-money. A system of justice where the punishment for most crimes is retribution, retaliation and mutilation meant that, in the Prophet’s time, there were no prisons as we know them^[2].

Punishment was swift and certain and except for wealthy men who could escape punishment by paying blood-money (the option of paying to escape mutilation or death is normally not available to women for reasons which will be explained under the Family Law banner) there was no risk of recidivism. This is one argument that is made for the cost-effectiveness and superiority of Islamic Law over the Western kind.

Following are the forty greater sins for which there is a verse in the Koran or saying of the Prophet about the sinner going to Hell (excerpted from Islamic-laws.com):

1. Shirk (polytheism), associating other gods with Allah.

2. Yās (despair), to doubt Allah’s Mercy.

3. Qunut (despondence), losing hope in Allah.

4. Not fearing Allah’s punishment.

5. Murder.

6. Parental disobedience.

7. Breaking up with relatives.

8. Usurping the property of orphans.

9. The charging of interest on borrowed money.

10. Fornication (adultery).

11. Sodomy.

12. Wrongfully accusing a chaste believer of adultery or homosexuality.

13. Drinking alcoholic beverages

14. Gambling,

15. To neglect an obligatory religious duty.

16. Playing musical instruments or listening to music.

17. Singing.

18. Lying.

19. False oats.

20. False testimony.

21. Concealing evidence.

22. Breaking a promise.

23. Misappropriation of property.

24. Stealing.

25. Short weighing or cheating in business.

26. Eating of what is unlawful.

27. Usurping the rights of others.

28. Avoiding Jihad.

29. Becoming A’Arāb after Hijrat, “the condition when a desert Bedouin before acquiring the necessary knowledge of religion turns back to his ignorant ways.”

30. Helping the oppressors.

31. Not helping the oppressed.

32. Sorcery.

33. Extravagance e.g. wasteful expenditures.

34. Arrogance.

35. To war against Muslims.

36. Eating of carrion, pork and blood.

37. Omitting prayer intentionally.

38. Non–payment of Zakat (obligatory charity).

39. To consider the Hajj (mandatory pilgrimage) insignificant.

40. Persistence in minor sins (committing a lesser sin repeatedly).

The Greater Sins for which there is no explicit verse or saying of the Prophet damning the sinner to an eternity roasting in Hell:

41. Backbiting.

42. Telling tales.

43. Insulting a believer.

44. Intrigue, deception and breaking covenants.

45. Hoarding and selling on the black-market.

46. Disrespect of the Qur’an.

47. Disrespect of Ka’ba. 48. Disrespect to Masajid (mosque).

49. Disrespect of the Tomb of the Prophet.

50. Disrespect to the soil of Imam Husain’s Grave (Shia Islam).

Misdemeanors

A misdemeanour, (or misdemeanor) in most common law legal systems, is a lesser criminal act. Misdemeanours are generally punished much less severely than felonies (usually a crime involving violence).

Minor sins under Islamic Law could be considered misdemeanors. The list of minors sins is open-ended (see section An Ever Expanding Law). The offenses on this long list of offences might seen trivial, even laughable by Western standards of what constitutes a crime, but the punishment usually is not.

Minor sins range from being too close to a member of the opposite sex to whom you are not related, cursing, imitating the dress, behaviour or lifestyle of the kuffar (also Kafir, and Kufr, “concealer of the truth”, pejorative term for non-Muslims) to forgetting to lower your gaze when encountering a member of the opposite sex ... to entering a house by the backdoor.

24:30 Tell the believers to cast down their eyes and guard their private parts. This is purer for them. Allah is conversant with what they do.

2:189 They ask you about the crescents (the new moons) say: “They are times fixed for mankind and for the pilgrimage.” It is not righteousness to enter houses from the back; but the righteous is he who fears Allah. Enter then the houses by their front doors; and fear Allah that you may prosper.

Islam’s preoccupation with minor sins can be traced, in part, to Aisha, the Prophet's child-bride. She is also largely responsible for the severe constraints Allah has placed on female believers, which are enforced to this day.

It seems the lovely Aisha wandered off into the desert and got lost, only to be rescued by a young man who brought her back to Medina… the next day. Needless to say, this started people talking. Talk, if verses pertaining to this incident are to be believed, that really distressed the Messenger.

The Prophet returned her to her father while he contemplated what to do next, including having her stoned for adultery.

To comfort the distraught Messenger some said that it was no big deal and that he should simply have her put to death and find himself another wife. The general sentiment, according to Georgiou, was summed up by the Prophet’s adopted son Ali who told God’s Messenger (my translation): “Allah has not limited our choice in women and there are many” (La Vie de Mahomet, p 259).

This remark by Ali is alleged to be the cause of the animosity that Aisha would bear him for the rest of her life.

It may not have been a big deal for the Prophet's tribesmen, but it was a big deal for Allah that anyone would accuse any of His Messenger’s wives, slave-girls and concubines of being unfaithful and that is when He sent down the revelation which is often quoted a proof that Allah is concerned about all sins, both big and small.

24:15 Since you received it on your tongues and you uttered with your mouths what you had no knowledge of, deeming it a simple matter; whereas in Allah’s Sight it was very grave.

(For more on the incident with Aisha see A Child Bride's Indiscretion)

The punishment for minor sins under Islamic Law can be quite severe and varies depending on which religious scholar or imam holds sway over a town or region, or most often the school of Islamic Law that is predominant in a country rule by the Sharia (more on Islamic schools of law in a later chapter). Take the punishment for the minor sin of Khalwat for example, the sin of close proximity.

Under the Sharia you are guilty of Khalwat not only if you are too close to a person of the opposite sex, but also if you are discovered to be naked or near-naked with a member of the same sex for “no good reason” e.g. sleeping naked in the same bed.

In Iran the punishment for committing Khalwat is up to 99 lashes, in Malaysia it is a fine or up to two years in jail, or both.

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^[1] This number includes the 112 unnumbered Basmalahs, the formula-invocation “in the name of Allah, the Compassionate, the Merciful” which appears at the beginning of every chapter of the Koran except the first and the ninth.

^[2] This does not mean that the Prophet was not unfamiliar with the concept. From the Prophet's Farewell Khutba (Last Sermon) in which God's Messenger summarizes the main themes of the Koran: Treat the women kindly, for verily, they are like prisoners in your house and are incapable of looking after themselves ... (Hamidullah)

Family Law

The Koran and the Prophet, in verses and sayings respectively, remind the believers that males are superior to females; that women are weak- minded and lust after the male body, and left to their own devices would destroy the family and bring chaos to the orderly world of the Koran.

These concerns of Allah and His Messenger about the failings of females are at the heart of what I refer to as Islamic Family Law. Allah’s revelations and His Messenger’s sayings which have the force of law is simply their way of protecting females from themselves and from corrupting those they might come into contact with because of their physical attributes and guile.

It is for their own good, and the salvation of the men they would inevitably seduce if not kept out of sight and out of reach, that they grant their father (a brother or an uncle, if he is not around) and later their husband absolute control over them.

Western Family Law explicitly recognizes that men and women are equal, as human beings, and before the Law.

Islamic Family Law emphatically denies that this is so. The proof being in a revelation where Allah confirms the superiority of the male over the female by at least "one degree", and in another revelation, confirmed by sayings of His Messenger, that women are so dumb that they can't even do simple arithmetic.

Western Family Law tries to strike a balance between the rights and obligations of the marital partners with laws that seek to militate against either harming the other financially or physically.

Islamic Family Law gives the husband complete control of his wives wealth and encourages husbands to beat their wives if they fear they will sin, or have sinned, as they see it.

In Western Family Law, divorce proceeding are meant to ensure an equitable distribution of family and jointly owned property, and that neither partner is left destitute after the separation.

Islamic Family Law allows a husband to divorce his wife on a whim if he is unhappy with his or his parents purchase^[3] and she has no recourse, and has no recognized right in the Koran to any property or wealth acquired during the marriage, and that includes the family home. The Koran states that after waiting for her to experience a menstrual cycle that will confirm she is not pregnant, her former husband can turn her out of the family home with only the clothes on her back if she came with no dowry.

In Islamic Family Law the husband has rights, the wife obligations, obligations which include having sex on demand, what in Western Law might be considered rape in some cases.

In Western Family Law a wife is entitled to her fair share of a deceased husband’s estate. Not so under Islamic Family Law.

In Western Family Law a father can bequeath whatever he wishes to his offsprings. Under Islamic Family Law his bequeath must be in accordance with the Koran which demands that a son gets twice the share of the daughter, and if he has no sons, his male relatives.

As you will discover in this guide, Allah’s revelations as to the disposition of an inheritance means that Muslim women will always have difficulty accumulating the resources needed to look after themselves.

Should they succeed in accumulating any wealth, on their death, the lion’s share of any wealth they might have inadvertently accumulated must go, by Allah’s decree, to the male members of her husband’s family and their male offsprings – their daughters, and their daughter’s daughters… doomed in perpetuity to start their adult life at a disadvantage.

This is the Family Law that many Western governments implicitly recognize by turning a blind eye to makeshift Islamic Tribunals e.g. Great Britain and some, like the government Ontario which tried to make Islamic Family Law part of its legal framework in 2005.

Going Swimming Fully Clothes will spend what many may consider an inordinate amount of space to the Sharia and women (we will be giving you Allah's revelations and sayings of the Prophet as proof of what we have written here) but it can’t be any other way, as women and controlling them, was and is a central preoccupation of Allah and His Messenger.

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^[3] Unlike most religions, a marriage in Islam is not a sacrament but a contract, most often a contract between members of the same clan, meaning you are all relatives, all offsprings of the same father a few generations removed..  Men acquire wives and sex-slaves, what Allah refers to as “what your right hands possess”, like you would acquire any property.

The marriage is usually an arranged affair and, not unlike arranged marriages of the Middle and Dark Ages, the primary consideration is what benefits in wealth and influence will accrue to the contracting parties i.e. the families of the bride and groom

Sources of Islamic Law

Islamic Law is generally referred to as The Sharia (Shari’ah) or Holy Law. There are four sources of Islamic law.

In order of importance:

1) the Koran;

2) the Prophet Muhammad's Sunnah, his example and sayings including his silent approval of actions performed in his presence narrated in the books of hadiths;

3) Consensus among among Islamic scholars i.e. Ijmā'.

4) Reasoning within the boundaries of the Koran and the Prophet's Sunnah.

Sunni scholars use what they call "analogical reasoning “or qiyās to come up with a new law to fit a new or changed circumstance. It is a process whereby one or more hadiths are compared and contrasted with revelations in the Koran in an attempt to come with a crime and a punishment of which Allah and His Messenger would approve.

Shia’s reject Sunni "analogical reasoning “or qiyās because it might lead to a multitude of contrary opinions, or divergence of beliefs. It’s not that Shia’s don’t do their own narrowly focused reasoning to come up with new laws.

Shia’s call their process ‘Aql. To avoid divergence of beliefs cause by discordant reasoning, the most revered and learned Islamic scholars among them, such as the Ayatollah Khomeini when he was alive, is accepted as the final authority as to who’s reasoning will take precedence.

Since all this reasoning is done by the Islamic scholars, I do not differentiate in this guide as to whether a law was arrived at by reasoning or by consensus. It would only unnecessarily complicate things even if I had been trained in the splitting of theological hairs.

Islamic Law is Forever Expanding

New sins, mostly of the minor variety, and new rules to govern every waking moment of a believer’s existence are constantly being created.

The most respected Islamic Scholars are those that have discovered a new sin in the Koran, but most often it is from the Prophet’s much more plentiful pronouncements and opinions that new jurisprudence is created.

The competition among scholars to create new laws or new interpretation of existing laws and regulations has been more or less formalized and recognized in what Islam often refers to as the “science of fiqh”. It is science to Islamic scholars because new laws are not based on human interpretation of what rules are needed to maintain social order and harmony as is often the case in Western jurisprudence.

New laws in Islam are created via what scholars of the Faith consider the scientific method of forming hypothesis than gathering the evidence via the scriptures to prove what you advance.

This is one more argument why many scholar of Islam consider Islamic Law superior to Western for it is arrived at by looking at what the best two legal minds in the universe had to say on the matter, or speculating on what they would decree if their opinion on this or that is not clear or can’t be found.

Shia Islam has probably gone the furthest in recognizing the contribution of scholars in the creation of new laws by bestowing the equivalent of a doctorate on those who were successful are in convincing their peers that a sin had been overlooked, or that what until then had been considered acceptable behaviour for a believer was not the case at all. Iran’s Ayatollahs all have the equivalent of this doctorate.

Needless to say that with more than 900 years of scholars mining the Koran and the sayings and actions of the Prophet for new sins, or new insight into how believers should behave if they wish to attain Paradise means that the scholar who wishes to distinguish himself must dig deeper into the scriptures, and be extremely diligent if he hopes to find that overlooked nugget of wisdom left behind by Allah and His Messenger.

The Ayatollah Khomeini in his “doctoral thesis” could be said to have found such a nugget, a nugget which allowed him to speculate on what you can do with chicken with which a believer has copulated.

He seems to have successfully argued that it was permissible for a neighbour three doors down from a man who had had sex with a chicken to eat the chicken but not the chicken-copulater himself.

In his Tahrirolvasyleh, better known as The Political, Philosophical, Social and Religious Principles of Ayatollah Khomeini, the revered Islamic scholar and leader also had the following to say on sodomizing baby girls:

A man can have sexual pleasure from a child as young as a baby. However he should not penetrate, sodomizing the child is OK. If the man penetrates and damages the child then he should be responsible for her subsistence all her life. This girl however does not count as one of his four permanent wives. The man will not be eligible to marry the girl’s sister.

The punishment prescribed by Khomeini for the sodomizer of babies if he damages the child in any way, which is highly likely, is to pay for her care all of his life. This is actually a more fitting punishment than one handed out by a Canadian judge.

In 1994, Quebec Judge Raymonde Verreault citing extenuating circumstances, “the attacker had respected the values of her [his stepdaughter’s] Muslim faith and had spared her virginity by not engaging in vaginal intercourse” handed down a 23-month sentence to a man who had repeatedly sodomized his stepdaughter from the time she was 9 until 11.

Under Canadian law, if this torturer of children behaves in prison, he will only spend six to eight months under lock and key before being set free, with no further obligations to his young victim who will have to live and pay for his repeated assault for the rest of her life, the most likely outcome being incontinence.

With the Introduction to Going Swimming Fully Clothed we have only gotten our feet wet, time to plunge in fully clothed and see how long we can thread water.