Islamic Law (Sharia)

Background

Sharia controls the family and property interests of Muslims in countries where personal law is determined by religion, and it is the law referred to in such matters concerning Muslim citizens of such countries by courts in jurisdictions where nationality is the criterion for personal law. In addition to some modern cases dealing with it, there is a substantial case law from Western courts of the colonial era applying Sharia including notably cases arising in India and Algeria. Some predominantly Muslim countries apply Sharia at least in part in matters of criminal and commercial law; Islamists argue that Sharia is a complete set of laws and that no man-made laws have a place in the Muslim State. Many Muslims who live in Western countries attempt to live by Sharia rules insofar as possible; this has created a niche for lawyers in experienced in Islamic dispute resolution and able to offer trusts and other arrangements that follow Sharia rules of succession. Financial organizations have developed Islamic financial packages that substitute equity for interest.

Important Islamic law codifies beliefs that are deeply held by a significant proportion of the world's population and which those believers consider to be immutable and of universal vocation. Insofar as Sharia edicts may be seen by others as in conflict with their own beliefs or with international norms which themselves claim universality, they engender controversy and sometimes hostility. This article is a bibliographic work intended for librarians, lawyers and researchers experienced in legal research. The inclusion of any particular link does not imply any support for that site's content on the part of this writer or LLRX.

This guide has as principal aim discussion of the availability on-line of authoritative sources on Islamic law in Western languages. It also lists some essential written materials. The guide is particularly directed at the relationship between religious and civil law, as to which readers may also wish to consult standard conflict of laws texts including EHRENZWEIG, SCOLES & HAY, DICEY & MORRIS, CASTEL and BATIFFOL & LAGARDE. In addition, it sets out some warnings about traps for the unwary. Many on-line sources carry political baggage and claim theological certainty, justifying their conclusions on the divine source and unique authority of Sharia. The researcher may or may not share that view. Like the Privy Council ruling on points of Islamic and Hindu law on appeal from Colonial Indian courts -- e.g. Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry, (1894) 22 I.A. 76 (P.C.), others may be found in Moore's Indian Appeals, in the English Reports and in the CD-ROM of English Reports -- one may fairly and justifiably approach religious law as applied to a particular case without conceding its overriding authority and supremacy in other contexts. Indeed, Christian and Jewish writers dissent from the interpretation that Islamic law purports to apply to their respective teachings and the rules that it would assert over their adherents. Insofar as Sharia (2 GEORGE YOUNG, CORPS DE DROIT OTTOMAN 223), Canon Law (Canon 549, Codex 1983) and Jewish Law (El-Zafdi v. Benjamin, July 11, 1963, 5 S.J. 273 (1963-65)) all would apply a rule of "perpetual allegiance", conflict of laws among them is easy to envisage. Islamic law, however, goes further and asserts a hierarchy and priority of faiths: see SAMI AWAD ALDEEB ABU-SAHLIEH, L'IMPACT DE LA RELGION SUR L'ORDRE JURIDIQUE, CAS DE L'EGYPTE, NON-MUSULMANS EN PAYS D'ISLAM 256 (1979); JOSEPH SCHACHT, AN INTRODUCTION TO ISLAMIC LAW 131-32 (1964). For links to organizations and sites promoting international inter-religious dialog, see Oddbjorn Leirvik's site. This is a bibliographic compilation: while the Islamic-law sources quoted here are valued by this author as authoritative or useful, it should be noted that (1) Muslim sources may justify their pronouncements on faith alone, and (2) non-Islamic sources may have an unstated agenda and will often be neither unbiased nor uncritical. This writer's point of view is not that of an Islamic scholar but a researcher in the law of personal status (including that relating to Muslims), private international law and comparative law and it is from these approaches that the bibliography has been collected. The substantive references given are provided only to facilitate the beginning researcher. A critical eye is essential; but then Islam is not the only religion to offer itself as sole bearer of truth and defender against false religions. Claims of infallibility and supremacy perhaps flow inevitably from doctrines of revelation; it is only secular law that holds-out of constitutional principle-that all faiths are equally worthy of respect. On this subject, see the U.S. Department of State Annual Report on International Religious Freedom. A watershed event in this regard was Napoleon's Grand Sanhedrin of 1807. See: Islamic Party of Britain site and International Napoleonic Society site .

Islamic law derives from the Koran (Q'uran) and from the Sunnah and hadith: the writings of prophets and scholars, mostly until the fall of Baghdad in 13th Century. On the closure of Islamic revelation to reinterpretation.

It is presumed that the Koran constitutes direct divine instruction as given to the Prophet Mohammed and that it is perfect, and therefore immutable. For this reason, recently reported discoveries that, it is said, question the accepted history of the Koran are viewed as destabilizing and threatening to the existing order, indeed blasphemous.

On selective quotation

The non-Muslim researcher (in particular) may find it risky to draw conclusions solely by reference to the primary sources of Islamic law, and should look critically at commentary that is consulted. While many elements of Sharia are unambiguous and unquestioned, the Koran has many internal inconsistencies and much of what is written (especially when found on the Internet) pursues a political agenda and is based upon tenuous ideological presumptions. Researchers are advised to support their conclusions with citations to recognized secondary sources which take account of established Sharia conventions for dealing with conflicts and doubt. There is nothing surprising here: the researcher must distinguish between what is advocacy and what is impartial theological or scholarly exposition.