Sharia Law in the International Legal Sphere
By Mimi Wu, from Volume 1, Issue 1
Introduction
The actions of radical Islamist groups in the past few decades have led many in the West to hold skewed perceptions of both the Muslim world and its legal foundations. The common misconception is that all Muslim states implement Sharia law to the same brutal degree in which gross human rights violations and antiquated corporal punishments, such as female genital mutilation or cutting off the hand of a thief, are still sanctioned by law. However, though this form of classical Sharia law is still employed in a few Gulf na- tions, the majority of Muslim – and some non-Muslim – states employ Sharia law to a much more varied degree. Egypt, for instance, draws laws both from its secular Constitution and from its Islamic roots. Britain, on the other hand, is a decidedly secular and Western state that has recently implemented Sharia courts for its Muslim minority. In order to properly assess the place of Sharia law in the international legal sphere and its ability to co-exist with Western le- gal systems, we must first understand where Sharia comes from, what it addresses and entails, and how it is currently implemented.
Origins of Sharia Law
Sharia, literally the “path” or “way,” is the body of Islamic law developed to deal with all aspects of life for a Muslim. It spans everything from business and contract law to marriage and inheritance to sin and personal hygiene, and derives from two primary sources: the Qur’an, the holy book of Islam, and the Sunna, which are the customs and traditions of the Prophet. The Qur’an established the fundaments of Islam as a religion and addressed prominent legal issues of Muham- mad’s time, such as slavery and of polygamy. The Sunna, or “trodden path,” is a record of the day-to-day interactions and legal rulings of Muhammad as he established an Islamic re- gime in seventh-century Arabia. Collected in a body of work called Hadith, the “Sunna is the embodiment of the views and practices of the oldest Islamic community, [and] it func- tions as the most authoritative interpretation of the text of the Qur’an.”1 Together, these are the immutable pillars of Sharia law; they are not only the basis of all subsequent legal follow- ings, but they cannot be modified to accommodate modern developments because they are fundamentally divine truths.
Although the Qur’an and Hadith are widely accepted, their application in law differs greatly among Muslim sects. The ap- plication and interpretation of Sharia law, called fiqh (“juris- prudence”), begins with ijma’, the consensus of high-ranking Islamic scholars and clerics. Once this ruling religious class has issued a decision on a subject, it immediately becomes ac- cepted as part of the body of Sharia and is also irrefutable: to turn one’s back on ijma’ is equal to turning one’s back on the community as a whole.2 Legal decisions in areas not directly addressed by the Qur’an, Sunna, or ‘ijma is, in Sunni Islam, determined by a process called qiyas, or analogical reasoning. The door to independent legal thought has been considered “closed” since the tenth century. Shi’a Islam is more open to development and evolution, and relies on ‘aql, logic or human intellect, to decide on cases where there is no clear scholarly consensus. As a whole, however, Sharia in Shi’a Islam still tends toward the same type of rigidity that exists in Sunni Islam: it is impossible to revise the original divine law, and it is nearly as impossible to amend the laws that have existed since Muhammad’s time.
Sharia in Practice
The basic incompatibility of Sharia law with the modern legal system, particularly laws concerning universal human rights and ethics, is very evident at the theoretical level: Sharia does not have a mechanism through which major changes can be implemented, such as the amendment system for the US Constitution. There is literally no legal way that Sharia can be made to conform to international human rights standards, as punishments such as stoning adulterers are issued by the
Qur’an and therefore Allah himself. However, this is not to say that the implementation of Sharia is rigid in practice. Countries that apply Sharia law do so in a number of differ- ent ways. These can be grouped into the following:
Classical Sharia systems: Only a small minority of Muslim na- tions institute this system, in which national law is almost en- tirely comprised of and derived from Sharia law. These coun- tries for the most part lack constitutions or codification of laws outside of the Sunna and Hadith. Also unique is the contin- ued authority of the Orthodox religious scholars, or ulama, who are the source of ‘ijma and therefore determinants of the law of the land. Even the ruling parties do not have the power to modernize or institute large-scale changes because of the power of the ulama. As it stands, modernization of states with classical Sharia systems can only occur through widespread legal reformation and secularization; on a very fundamental level, these states are unable to coexist or be integrated into a legal system that is based on Western codes and ethics.
• Saudi Arabia: Saudi Arabia is the most widely cited example of a state that retains Sharia as the legal system, and it has come under fire in recent years for the human rights abuses and blatant gender discrimination that remain accept- ed throughout the land. A case that came to international light in January 2010 involved a Filipina immigrant worker, Ca- mille, who became pregnant after being raped by a co-work- er.3 She did not report the crime due to fear of punishment, but her pregnancy was detected as she tried to leave the coun- try. She was imprisoned and scheduled to be lashed 100 times by the government for engaging in extra-marital sexual rela- tions, a punishment prescribed by the Qur’an – even Western law considers her to be the victim of a crime. Another source of incompatibility between the West and a country like Saudi Arabia is the prevalence – and approval for – honor killings. According to Supna Zaidi of Islamist Watch, a project of the Middle East Forum, “No passage in the Koran discusses hon- or killings, but Muslim clerics justify them and secular Mus- lims do not punish them or pass laws to mitigate punishment for them… honor killings are justified under Islam in some Muslim countries such as Saudi Arabia. For example, tenth- grade textbooks teach Saudi children that it is permissible to kill adulterers.” The recent cases of honor killings make this justification apparent: in 2009, a brother killed his two sisters for talking to men in public, while their father watched ap- provingly,4 and in 2008, a father killed his daughter for using Facebook, which a sheikh had denounced as a “door to lust.”5 Clearly this sort of vigilante justice cannot be compatible with Western ideals or the Western legal system, and it illustrates one of the main points of contention between Western and Sharia law.
Mixed Sharia systems: most Muslim states have legal systems where Sharia still plays a large part, but is not necessarily the sole or even dominating aspect of the justice system. These states often have written constitutions and a codified set of laws that may be, at least in part, based on the Western system. The concept of rule of law is enforced, and national laws exist to maintain modern standards for human rights and ethics; elections and separation of powers may also exist. As a result, modernization is often possible and the level of modernization depends on the specific rulers and political parties that have a say in government. However, since mixed Sharia systems span a very broad range, it is difficult to determine if such a state is compatible with international law without further understand- ing in what ways and to what extent it employs Sharia law and punishments.
• Iran: Iran is often cited as a classical Sharia system because it institutes strict corporal punishments for what are called hadd offenses. These five offenses – unlawful sexual in- tercourse, false accusation of unlawful intercourse, consump- tion of alcohol, theft, and highway robbery – are specifically addressed in the Qur’an as crimes against Allah, and therefore carry very specific punishments according to Sharia law, such as stoning death for adultery. Iran’s judicial system is also, for the most part, desecularized: “To emphasize the independence of judges from the government, Article 170 [of the Iranian constitution] stipulates that [judges] are ‘duty bound to refrain from executing governmental decisions that are contrary to Is- lamic laws.’”6 This system leads to discrimination on the basis of gender, antiquated punishments, and many other points of contention with international human rights standards. How- ever, the overall structure of the government as established by the 1979 Iranian Constitution provides for a potentially modern and moderate religious state: although the Supreme Leader is appointed by a religious committee, the President is elected through universal suffrage, as are the members of Parliament. The codified Constitution and legal system also help establish rule of law, although that law cannot be anti- thetical to Islam. Moreover, the independence of the judiciary from government influence is grounded in the Constitution, although the Supreme Leader may intervene at any time. Iran is, at this point in time, still a relatively young state based on a mishmash of Sharia and democratic principles. Though not entirely compatible with the Western ideals of justice, it is not entirely incompatible or immutably Islamic, either.
• Pakistan: Pakistan has long been considered semi- democratic and is currently under the rule of a federal parlia- mentary system with a popularly elected Prime Minister. The Constitution is the law of the land, and though women are still discriminated against, they have many more rights than in other Muslim nations, if former Prime Minister Benazir Bhutto is any indication. Arguably Bhutto’s position was an inherited one – passed down from her father and then taken over by her husband – but nevertheless she became an icon for women’s rights. However, this degree of liberalness has shrunk even since a decade and a half ago, due mostly to the power of groups like the Taliban who promote Islamisation. In 2009, peace deals between President Zardari and the Taliban cre- ated what many have called a Sharia mini-state in a region of north Pakistan called the Malakind. The move was prompted by the Pakistani military’s continued loss against the Swat Taliban and fears that the Taliban would renew violence if Sharia law were not signed into effect. However, the Malakind Accord has many people – including the President himself – fearful that Pakistan will soon fall under the power of Islamist groups, emboldened by this recent success at bringing Sharia back to the land: according to Javed Iqbal, a retired judge, speaking on Pakistani television, “It means that there is not one law in the country. It will disintegrate this way. If you con- cede to this, you will go on conceding.”7 Nations like Pakistan that are under threat of being forced to return to Sharia law are one of the major problems facing the international legal sphere: though the nation is or can be modernized, political sentiments are shifting away from modernization or integra- tion with Western legal systems, leading to a potential increase in human rights violations.
• Iraq: The Iraqi constitution, newly instated by a ref- erendum in 2005, unequivocally asserts that Islam is both the official religion and a “fundamental source of legislation” in the land. According to Article 2 of the Iraqi Constitution, “No law that contradicts the established provisions of Islam may be established.” However, Article 2 also states that “No law that contradicts the principles of democracy may be established,” and Article 14 further asserts that “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status.” In establishing the legitimacy of both West-
ern principals and Islamic law, the Iraqi constitution remains incredibly ambiguous about which principals will be domi- nant and leaves much to be decided in the coming years. Iraq could become a very democratic and progressive state, but the brand of law implemented could also swing towards the Is- lamist rigor characteristic of states like Iran, if certain political groups are able to gain a foothold in the young government. The March 2010 elections seem to indicate the former is true: the Iraqiya bloc, which is a secular block comprised of both Sunni and Shi’a leaders, won a close majority in Parliament. This electoral outcome was trumpeted as a “vote… against sectarianism” by Allawi, the leader of the Iraqiya bloc.8 If this trend continues, Iraq could become, as the United States hopes, a source of influence for democracy in the Middle East. However, the legal system in Iraq is still in flux, and the final status of Sharia law in Iraq is still very uncertain.
Secular Muslim states: Though in the minority, some states de- clare themselves to be completely secular, regardless of their predominantly Muslim population. These states exist com- pletely under rule of law, have codified legal systems, and an independent judiciary; religion is deemed to be irreconcilable with the state and is not permitted to interfere with politics or the law. However, many secular Muslim states have come under fire recently by Islamist political groups, who lobby for the reintroduction of religious law.
• Turkey is the prime example of this sort of Muslim state. Its population is 99% Muslim, yet the state itself has long been against re-instating Sharia law as it was practiced during the Ottoman Empire. The reforms, instigated by Ataturk in the 1920s, aimed to modernize Turkey and prepare it for en- try into a West-dominated system; they included making secu- larized instruction in schools compulsory, eliminating all reli- gious courts, forbidding polygamy, and giving women equality in everything from divorce proceedings to parliamentary elec- tions.9 Turkey’s tradition of upholding secularism still holds strong: in a 2004 case taken before the European Court of Human Rights, Turkey took the position that religious heads- carves and other such garments should not be worn in public places such as schools and universities. The ECHR upheld Turkey’s stance and noted that “secularism in Turkey was ‘the guarantor of democratic values, the principle that freedom of religion is inviolable – to the extent that it stems from individu- al conscience – and the principle that citizens are equal before the law’ (para. 105). The court considered that upholding this notion of secularism might be regarded as necessary for the protection of the democratic system in Turkey.”10 The secu- lar system is most easily compatible with Western ideals, but has recently come under pressure from Islamist groups. The current Prime Minister, Recep Tayyip Erdogan, is seen as the leader of the Islamist movement in Turkey, and his party won a stunning re-election in 2007, leading to many fears that Tur- key will soon slide away from its secular tradition. This fear is compounded as Turkey has seen a growth in the number of religious migrants, which helped instigate revolutions in Iran and Russia. Many women and non-Muslims fear that their rights will diminish if Turkey decides to take the religious route; however, Turkey’s desire to accede to the EU also acts as a force for secularism, as its membership rests on, among other things, continued freedom, justice, and equality for all Turkish citizens.
Sharia in the West
Islamist movements are also springing up in non-Muslim countries, pushing for the acceptance of Sharia law as a legal form of arbitration separate from the national law. In Britain and Canada, large numbers of Muslims petitioned for the es- tablishment of a dual court system. In 2005, Canada ruled against the movement to allow civil cases to be tried under Sharia law. According Premier McGuinty, there should be “one law for all Ontarians.”11 In Britain, on the other hand, the dual system was established in 2008; rulings in civil cases – and potentially some minor criminal cases – by Sharia courts are now enforced with the power of the judicial system. These courts, considered arbitration tribunals, are legally binding, and, according to many critics, will soon lead to the establish- ment of a parallel legal system in Britain, negating the rule of law. Others also criticize the establishment of these courts on the basis of their discrimination against women: in six recent cases of domestic abuse, the “judges ordered the husbands to take anger management classes and mentoring from commu- nity elders. There was no further punishment. In each case, the women subsequently withdrew the complaints they had lodged with the police and the police stopped their investi- gation.”12 Although Sharia courts have existed informally in British Muslim communities for years, legalizing the courts still may prove to be a dangerous move. Sharia without the power of law can still be kept in check; Sharia with the full force of the British judicial system may have overreaching consequences in these Muslim communities and across the nation. However, the dual court system is still too new for such consequences to be seen, and perhaps Sharia and Western ideals can both be implemented without the abrogation of religious or human rights.
The Place of Sharia in Western and International Law
As can be seen in many countries, Sharia law is not entirely incompatible with national or international law; democratic principles and Sharia law can coexist to a certain degree. However, there are still some striking areas of contention, namely in the fields of human rights and gender discrimina- tion. Even in the most “Westernized” of the mixed Sharia systems, women’s rights cannot be protected under the law and honor killings often go ignored. Only in the truly secular
Muslim states like Turkey can human rights be fully protect- ed, and thus, only these states are truly compatible with the West-dominated international legal system that exists today. Even in states where international and Sharia law coexist, the system is beginning to break down: states such as Pakistan which have been considered to a large degree secularized and Westernized are now subject to a strong Islamist movement, which may potentially strip minorities and women of their current rights.
The fear of a growing Islamist movement is even stronger in Western countries such as Britain. Although these courts pro- vide a way for Muslims to regulate their community based on religious ideals, the dual court system could potentially un- dermine rule of law and legal equality, especially for women. Although there is always still hope for coexistence, the un- derpinnings of these two systems are so vastly different that political forces such as Islamism or human rights advocacy quickly wear away at any sort of mixed system.
1Ignaz Goldhizer, Introduction to Islamic Theology (Princeton: Princeton University Press, 1981), 38.
2Id at 50.
3“Riyadh: rape victim might be lashed 100 times.” AsiaNews, January 22, 2010.
4“Honor killing in Saudi Arabia.” Current TV, July 21, 2009.
5“Honor killing over Facebook in Saudi Arabia.” Amboy Times, April 1, 2008.
6GlobaLex. “A Guide to the Legal System of the Islamic Re- public of Iran.” Hauser Global Law School Program. http://www.nyulawglobal.org/globalex/iran.htm
7Saeed Shah, “Pakistan imposes Islamic law in Taliban stronghold.” Guardian News and Media, February 15, 2009.
8Mohammad Jamjoom, “U.S. Ambassador: Iraq elections a turning point for democracy.” CNN World News, March 28, 2010.
9Jacob Landau, “Turkey between Secularism and Islamism.” Jerusalem Center for Public Affairs. http://www.jcpa.org/jl/ vp352.htm
10Global Campaign for Free Expression. “ECHR: Leyla Sa- hin V. Turkey.” Article 19, http://www.article19.org/hand- book/jurisprudence/echr-leyla-sahin-v-turkey1.html
11“Sharia law move quashed in Canada.” BBC News, September 12, 2005.
12Abul Taher, “Revealed: UK’s first official Sharia courts.” The Sunday Times (UK), September 14, 2008