Understanding Sharia: The Intersection of Islam and the Law

Introduction

Most of the world’s nearly fifty Muslim-majority countries have laws that reference sharia, the guidance Muslims believe God provided them on a range of spiritual and worldly matters. Some of these nations have laws that call for what critics say are cruel criminal punishments, or place undue restrictions on the lives of women and minority groups. However, there is great diversity in how governments interpret and apply sharia, and people often misunderstand the role it plays in legal systems and the lives of individuals.

What is sharia?

Sharia means “the correct path” in Arabic. In Islam, it refers to the divine counsel that Muslims follow to live moral lives and grow close to God. Sharia is derived from two main sources: the Quran, which is considered the direct word of God, and hadith—thousands of sayings and practices attributed to the Prophet Mohammed that collectively form the Sunna. Some of the traditions and narratives included in these sources evolved from those in Judaism and Christianity, the other major Abrahamic religions. Shiite Muslims include the words and deeds of some of the prophet’s family in the Sunna. However, sharia largely comprises the interpretive tradition of Muslim scholars.

The Prophet Mohammed is considered the most pious of all believers, and his actions became a model for all Muslims. The process of interpreting sharia, known as fiqh, developed over hundreds of years after he died in the seventh century and as the Islamic empire expanded outward from Mecca and Medina, where he lived and died, in modern-day Saudi Arabia.

Sharia isn’t the same as Islamic law. Muslims believe sharia refers to the perfect, immutable values understood only by God, while Islamic laws are those based on interpretations of sharia. Interpreting sharia requires deep knowledge of the Quran and Sunna, fluency in Arabic, and expertise in legal theory. However, modern Islamic seminaries have not standardized the level of competency nor the length of study necessary to qualify as a jurist, says Khaled Abou El Fadl, a Muslim jurist and law professor at the University of California, Los Angeles. Also, interpretations of sharia can conflict depending on who is interpreting them. “On any legal issue, there are ten different opinions,” Abou El Fadl says.

Islamic law varies by country, is influenced by local customs, and evolves over time. Sharia is also the basis of legal opinions called fatwas, which are issued by Muslim scholars in response to requests from individual Muslims or from governments seeking guidance on a specific issue. In Sunni Islam, fatwas are strictly advisory; in Shiite Islam, practitioners are obligated to follow the fatwas of the religious leader of their choosing.

Why is it so controversial?

Sharia is a source of debate among both Muslims and non-Muslims. Among the many reasons sharia generates controversy is that it’s often contrasted with modern legal regimes in predominantly secular countries. “If sharia is being compared to premodern legal systems, there’s hardly anything controversial about it,” Abou El Fadl says.

Sharia can also be seen as problematic depending on who is interpreting it. Many observers view sharia as a rigid legal system that can’t evolve to reflect modern, Western values. Debates over sharia tend to center on certain topics:

Corporal punishment. For certain crimes, such as theft, blasphemy, and adultery, traditional interpretations of Islamic law prescribe punishments that are considered draconian compared to those in most modern legal systems. Among them are the hudud punishments, which include stoning, lashing, and amputation. (The Quran never mentions stoning, which is a punishment derived from the Book of Deuteronomy in both the Hebrew and Christian Bibles.) However, applying such punishments requires meeting extensive evidentiary thresholds, so scholars say they are largely meant to serve as a deterrent rather than have a punitive effect through application.

Today, most Muslim-majority countries don’t administer physical punishments, though about a dozen of them have the authority to do so under state laws. Local and international backlash often dissuades authorities from following through with such sentences. However, Indonesia, Iran, the Maldives, and Qatar are among the countries where flogging is still conducted; and Iran, Mauritania [PDF], Nigeria, Saudi Arabia, and Sudan have in recent decades punished convicted thieves with amputations. Additionally, the Taliban implemented public executions and amputations when they ruled Afghanistan in the 1990s and have said these punishments will return under their new government.

Jihad. Many non-Muslims assume that this word, which means “to strive,” only refers to an armed struggle by Muslim extremists against non-Muslims. However, as a tenet of sharia, it refers to the effort to achieve a moral aim, which could be an armed struggle against injustice, the desire to better oneself morally, or the pursuit of knowledge, for example.

Religious tolerance. Some critics say that Muslim-led states that follow sharia are particularly intolerant of nonbelievers or those who practice other religions. Scholars say that this intolerance largely stems from premodern restrictions applied to non-Muslim minorities in Muslim lands, which were supported by certain hadiths later introduced into the Muslim canon that recommend the death penalty for Muslims who commit apostasy. Nigeria and Pakistan have carried out capital punishment for blasphemy and apostasy, as did Sudan for many years.

Additionally, religious minorities in some Muslim countries have fewer rights under modern laws and are otherwise discriminated against. In Saudi Arabia, for instance, only Muslims can construct places of worship and pray in public. And other countries that claim to allow religious freedom—particularly authoritarian states—don’t do so in practice (and routinely deny their citizens rights regardless of their faith).

Democracy. Though scholars say sharia doesn’t recommend a specific system of government, it is used by different groups to argue both against and in favor of democracy. Some Muslims say democracy is a purely Western concept imposed on Muslim countries. Others say that democracy has a basis in the Quran, since “mutual consultation” among the people is commended (42:38 Quran). For example, during the so-called Arab Spring, Egypt’s Al-Azhar University issued a statement saying sharia promotes a transition to democracy. Moderate Islamist groups such as Tunisia’s Ennahda Movement party also espouse democracy as the preferred form of government. Meanwhile, the leaders of Iran and Saudi Arabia insist that sharia requires nondemocratic governance.

Women’s rights. The Quran states that women are morally and spiritually equal to men but also indicates that wives and mothers have specific roles in the family and society. Certain sharia guidance applies specifically to women, and some governments use Islamic law to significantly restrict women’s rights, dictating how they dress and barring them from or segregating them in certain spaces.

For example, Iran and Saudi Arabia have Islamic law–based regulations that require women to wear veils and be accompanied by male guardians [PDF] in public places. Some Afghans and Western observers fear that Afghan women will face similar restrictions under the Taliban. Critics say these modesty rules create inequality, including by limiting education and employment opportunities for women. Other laws prevent women from initiating divorce and marriage on their own, contributing to child marriages and gender-based violence. Even in some places where sexist laws have been abolished, attitudes and practices are slow or resistant to change.

LGBTQ+ rights. All major schools of Islamic thought say that practicing homosexuality is a sin (even though same-sex attraction has long been accepted), and laws in most Muslim-majority countries discriminate against LGBTQ+ people. In the extreme, same-sex behavior is punishable by death under Islamic law in ten countries. In others, it is often harshly punished, as it is in some more conservative Christian-majority countries.

How much room is there for reform?

Some Muslim scholars say the religious tenet of tajdid allows for practices under sharia to be modified or eliminated. The concept is one of renewal, an idea suggesting that Islamic societies should be reformed constantly to remain pure. At the same time, others consider the purest form of Islam to be the one practiced in the seventh century.

Moreover, there is significant debate over what the Quran sanctions versus what practices come from local customs. For example, Muslim feminists have long argued that sexist interpretations of sharia stem from social norms, not from Islam itself. Other scholars take that principle more broadly: “The reality of it is that Islamic principles or Islamic laws can accommodate many things, so there’s actually very little that Islamic law requires or dictates,” says Intisar Rabb, a professor of Islamic law at Harvard University.

Modern governments have been known to alter laws considered to be Islamic. Saudi Arabia cited Islamic law when it granted women the right to drive in 2018. “If it’s truly Islamic, shouldn’t that not change? But it changed a few years ago,” Rabb says. “It’s just yet another example that a lot of the rules that are called Islamic are often local, culturally inflected preferences that come to have an Islamic veneer.”

How do governments in the Muslim world interpret and enforce sharia?

About half of the world’s Muslim-majority countries have some sharia-based laws, typically governing areas such as marriage and divorce, inheritance, and child custody. Only about a dozen Muslim countries apply sharia to criminal law, in part or in full. Governments tend to favor one of the major schools, or madhhabs, of Islamic law, although individual Muslims don’t usually adhere to one school in their personal lives. Each school is named after the scholar who founded it, and they differ in their methods of interpreting Islamic law:

• The Hanafi school is regarded as the most liberal and the most focused on reason and analogy. It’s favored by Sunnis in the Balkans, the Caucasus, Central Asia, China, Egypt, India, Pakistan, Turkey, and large parts of the Arab world.
• The Hanbali school, Islam’s most conservative and focused on select texts, spawned the Wahhabi and Salafi branches. Saudi Arabia and the Taliban embrace this school.
• The Jaʽfari school, the main Shiite madhhab, is preferred by Shia-majority Iran, Iraq, parts of Lebanon and South Asia, and eastern Saudi Arabia. It places great significance on the fatwas of early jurists and emphasizes reason over analogy.
• The Maliki school dominates in North and sub-Saharan Africa, as well as in parts of the Arab Gulf. It is the only school that considers the consensus of the people of seventh-century Medina as a source of law, out of the belief that the people of Medina best preserved the traditions of the Prophet Mohammed, who lived there.
• The Shafiʽi school prevails in Brunei, Indonesia, Malaysia, Yemen, and some areas in the Middle East. This was the first school to systematize the sources of Islamic law in order of authority, with the Quran as superior, followed by the Sunna, the consensus of Muslim scholars, and analogy.

European-style law also influences legal systems in Muslim countries, even in Iran and Saudi Arabia, which claim to only follow Islamic law. This owes in part to the effects of colonialism, the requirements for economic modernization, and the fact that many of the elite who built the legal systems in Muslim-majority countries had Western educations. Opinions on the best balance of Islamic law and secular law vary, but political systems tend to incorporate sharia-based laws in three ways:

Dual legal system. In some countries with large Muslim populations, such as Malaysia and Nigeria, the government has a secular judicial system but Muslims can choose to bring certain matters to Islamic courts. The exact jurisdiction of these courts varies by country but usually includes marriage, divorce, inheritance, and guardianship.

Government under God. In countries where Islam is the official religion, the constitution designates sharia as “a source,” or sometimes “the source,” of the law. Examples of the former include Afghanistan and Saudi Arabia, while Bahrain, Kuwait, and the United Arab Emirates are among those that apply Islamic law in personal but not civil or criminal matters. In Pakistan, Iran, and Iraq, among others, it is forbidden to enact legislation that is antithetical to Islam. Non-Muslims are not expected to obey sharia, and, in most countries, they are under the jurisdiction of special government committees and adjunct courts.

Secularism. Muslim countries where the government is formally secular include Azerbaijan, Chad, Senegal, Somalia, Tajikistan, and Turkey. Still, Islamist parties run for office and occasionally take power in these countries. Turkey’s ruling Justice and Development Party (AKP) is one such example.

How do extremist groups interpret sharia?

Islamist militant groups are notorious for embracing puritanical interpretations of sharia. Al-Qaeda, al-Shabab, and the self-declared Islamic State, among others, want to establish what they call fundamentalist regimes. Such organizations rely on violence and terrorism to push their extreme versions of Islamic law, establish and expand their influence, and persecute their opponents. They have been known to mete out gruesome punishments rarely used by governments in Islamic history, such as stoning, and others that traditional Islamic law expressly prohibits, such as crucifixion.

Leaders of such groups often have little to no training in interpreting sharia. Many insurgent groups see the imposition of an extreme version of Islamic law as a way to rebuke Western influence and hearken back to when Muslims ruled powerful empires. “They focus on the power and not on the interpretation or on law as a sophisticated discipline or area of expertise,” Rabb says. “With these organizations, you have all of the trappings and benefits of claiming religious commands, but none of the substance or procedure that came along with the complex system of Islamic law through informed and changing interpretations over time.”

How do Muslim-minority countries approach sharia?

Some governments let independent religious authorities apply and adjudicate their faith’s laws in certain situations. For instance, the United Kingdom (UK) allows Islamic tribunals governing marriage, divorce, and inheritance to make legally binding decisions if both parties agree. Similar mechanisms exist for Jewish and Anglican communities. In Israel, Christians, Jews, and Muslims can adjudicate matters of family law in religious courts, as can members of a few other faiths. Additionally, Muslim-minority countries such as Australia, Japan, the UK, and the United States allow Islamic banking, or sharia-compliant banking.

Conversely, officials in certain Muslim-minority countries seek to block sharia from influencing state law or practice. Some have prohibited behaviors encouraged under sharia, such as veil wearing for women or ritual slaughter to make meat halal. The ban on wearing veils or headscarves exists in France, for example, where secularism is part of the national identity and conspicuous religious symbols are banned in certain public spaces. Supporters of such laws say they promote women’s empowerment and social harmony, while critics say they ignore individual freedoms and unfairly target Muslims.