Shariah

Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the Hadith. In Arabic, the term ''sharīʿah'' refers to God's immutable divine law and is contrasted with ''fiqh'', which refers to its human scholarly interpretations. In the historical course, fiqh sects have emerged that reflect the preferences of certain societies and state administrations on behalf of people who are interested in the theoretical (method) and practical application ( Ahkam / fatwa) studies of laws and rules, but sharia has never been a valid legal system on its own. It has been used together with " customary (Urf) law" since Omar or the Umayyads.

It may also be wrong to think that the Sharia, as a religious argument or belief, is entirely within or related to Allah's commands and prohibitions. Several non-graded crimes are mentioned in the Qur'an, and they are met with qisas or a single ungraded corporal punishment. Many regulations such as tazir punishments, which are not included in the few crimes called hudud, rajm, which is considered contrary to the Qur'an by some jurists and the sharp distinction between free women and concubines in women's clothing can be counted within this scope.

Traditional theory of Islamic jurisprudence recognizes four sources of Sharia: the ''Quran'', ''sunnah'' (authentic hadith), ''qiyas'' (analogical reasoning), and ''ijma'' (juridical consensus).John L. Esposito, Natana J. DeLong-Bas (2001),
Women in Muslim family law
'', p. 2. Syracuse University Press, . Quote: " .. by the ninth century, the classical theory of law fixed the sources of Islamic law at four: the ''Quran'', the ''Sunnah'' of the Prophet, ''qiyas'' (analogical reasoning), and ''ijma'' (consensus)." Different legal schools—of which the most prominent are Hanafi, Maliki, Shafiʽi, Hanbali, and Jaʽfari—developed methodologies for deriving Sharia rulings from scriptural sources using a process known as '' ijtihad''. Traditional jurisprudence (''fiqh'') distinguishes two principal branches of law, '' ʿibādāt'' (rituals) and '' muʿāmalāt'' (social relations), which together comprise a wide range of topics. Its rulings are concerned with ethical standards as much as with legal norms, assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited. This classification has also been integrated with the motto enjoining good and forbidding wrong, which is accepted as a type of jihad and has a place in the Qur'an about 30 repeat. Fiqh was elaborated over the centuries by legal opinions (fatwas) issued by qualified jurists ( muftis) and historically applied in Sharia courts by ruler-appointed judges, complemented by various economic, criminal and administrative laws issued by Muslim rulers.

In the 21st century, the role of Sharia has become an increasingly contested topic around the world especially on political basis. There are ongoing theoretical debates as to whether Sharia is compatible with democracy, human rights, freedom of thought, women's rights, LGBT rights, and banking. The European Court of Human Rights in Strasbourg (ECtHR) ruled in several cases that Sharia is "incompatible with the fundamental principles of democracy". Some traditional practices include serious violations of human rights, especially on women and freedom of religion.

The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists. In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models. Judicial procedures and legal education were likewise brought in line with European practice. While the constitutions of most Muslim-majority states contain references to Sharia, its rules are largely retained only in family law. The legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of Sharia, including '' hudud'' corporal punishments, such as stoning. Today, fundamentalist terrorist organizations and modernist Islamists have advocated the implementation of the different interpretations of the sharia adopted by them through religious-political-terrorist organizations and different propaganda methods. On the other hand, theologian thinkers such as Fazlur Rahman Malik joined this discussion with their views that can be summarized as the Qur'anic expressions and the provisions derived from them have historical characteristics and should be abandoned. In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of Sharia advocated by progressive reformers.

Etymology and usage

The primary range of meanings of the Arabic word ''šarīʿah'', derived from the root ''š-r-ʕ'', is related to religion and religious law. The lexicographical tradition records two major areas of use where the word ''šarīʿah'' can appear without religious connotation. In texts evoking a pastoral or nomadic environment, the word, and its derivatives refer to watering animals at a permanent water-hole or to the seashore, with special reference to animals who come there. Another area of use relates to notions of stretched or lengthy. This range of meanings is cognate with the Hebrew ''saraʿ'' and is likely to be the origin of the meaning "way" or "path". Both these areas have been claimed to have given rise to aspects of the religious meaning.

Some scholars describe the word ''šarīʿah'' as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah The Way to Go",Abdal-Haqq, Irshad (2006). ''Understanding Islamic Law – From Classical to Contemporary'' (edited by Aminah Beverly McCloud). Chapter 1 ''Islamic Law – An Overview of its Origin and Elements''. AltaMira Press. p. 4. or "path to the water hole" and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment.Weiss, Bernard G. (1998). ''The Spirit of Islamic Law''. Athens, Georgia: University of Georgia Press. p. 17. .

Use in religious texts

In the Quran, ''šarīʿah'' and its cognate ''širʿah'' occur once each, with the meaning "way" or "path". The word ''šarīʿah'' was widely used by Arabic-speaking Jews during the Middle Ages, being the most common translation for the word ''torah'' in the 10th-century Arabic translation of the Torah by Saʿadya Gaon. A similar use of the term can be found in Christian writers. The Arabic expression ''Sharīʿat Allāh'' (شريعة الله "God’s Law") is a common translation for תורת אלוהים (‘God’s Law’ in Hebrew) and νόμος τοῦ θεοῦ (‘God’s Law’ in Greek in the New Testament om. 7: 22. In Muslim literature, ''šarīʿah'' designates the laws or message of a prophet or God, in contrast to ''fiqh'', which refers to a scholar's interpretation thereof.

In older English-language law-related works in the late 19th/early 20th centuries, the word used for Sharia was ''sheri''. It, along with the French variant ''chéri'', was used during the time of the Ottoman Empire, and is from the Turkish ''şer’''(''i'').

Contemporary usage

The word ''sharīʿah'' is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality. For example, ''sharīʿat Mūsā'' means law or religion of Moses and ''sharīʿatu-nā'' can mean "our religion" in reference to any monotheistic faith. Within Islamic discourse, ''šarīʿah'' refers to religious regulations governing the lives of Muslims. For many Muslims, the word means simply "justice," and they will consider any law that promotes justice and social welfare to conform to Sharia.

Jan Michiel Otto distinguishes four senses conveyed by the term ''sharia'' in religious, legal and political discourse:
* ''Divine, abstract sharia'': God's plan for mankind and the norms of behavior which should guide the Islamic community. Muslims of different perspectives agree in their respect for the abstract notion of sharia, but they differ in how they understand the practical implications of the term.
* ''Classical sharia'': the body of rules and principles elaborated by Islamic jurists during the first centuries of Islam.
* ''Historical sharia(s)'': the body of rules and interpretations developed throughout Islamic history, ranging from personal beliefs to state legislation and varying across an ideological spectrum. Classical sharia has often served as a point of reference for these variants, but they have also reflected the influences of their time and place.
* ''Contemporary sharia(s)'': the full spectrum of rules and interpretations that are developed and practiced at present.

A related term ' (, Islamic law), which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.

Historical origins

A similar legal concept '' Eye for an eye'' first recorded in the Code of Hammurabi. Qisas was a practice used as a resolution tool in inter-tribal conflicts in pre-Islamic Arab society. The basis of this resolution was that a member from the tribe to which the murderer belonged was handed over to the victim's family for execution, equivalent to the social status of the murdered person. The condition of social equivalence meant the execution of a member of the murderer's tribe who was equivalent to the murdered, in that the murdered person was male or female, slave or free, elite or commonone. For example, only one slave could be killed for a slave, and a woman for a woman. In these cases, ''compensatory payment ( Diyya)'' could be paid to the family of the murdered person. On this pre-Islamic understanding added a debate about whether a Muslim can be executed for a non-Muslim during the Islamic period.

The main verse for implementation in Islam is Al Baqara, 178 verse: "Believers! Retaliation is ordained for you regarding the people who were killed. Free versus free, captive versus captive, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well."

According to the traditionalist (''Atharī'') Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development" and the emergence of Islamic jurisprudence (''fiqh'') also goes back to the lifetime of Muhammad. Modern historians have presented alternative theories of the formation of fiqh. At first Western scholars accepted the general outlines of the traditionalist account. In the late 19th century, an influential revisionist hypothesis was advanced by Ignac Goldziher and elaborated by Joseph Schacht in the mid-20th century. Schacht and other scholars argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs, the initial Muslim efforts to formulate legal norms
regarded the Quran and Muhammad's hadiths as just one source of law, with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources.

According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications.
After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad's companions. In his view, the real architect of Islamic jurisprudence was Al-Shafi‘i (d. 820 CE/204 AH), who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work '' al-risala'', but who was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths.

While the origin of hadith remains a subject of scholarly controversy, this theory (of Goldziher and Schacht) has given rise to objections, and modern historians generally adopt more cautious, intermediate positions,
and it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified other aspects, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the early Muslim communities. Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics. At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles. As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school's founder. In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.

Doctrine and formation of traditional jurisprudence (''fiqh'')

According to the traditionalist Muslim (Atharī) view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development" and the emergence of Islamic jurisprudence (''fiqh'') also goes back to the lifetime of Muhammad. In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith. These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifah, Malik ibn Anas, Al-Shafi‘i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools (''madhhabs'') of Sunni jurisprudence.

Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity. However, they believed that use of reason alone is insufficient to distinguish right from wrong, and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad. ( Husn and Kubh) Expressions used in the Qur'an and authentic hadith that can serve as a basis for legislation and judiciary, which are called nass by theorist jurists, are examined (in terms of linguistics, meaning, aim, context, scope, restrictions, etc.); new provisions are introduced, the scope is expanded by making comparisons (analogy) or exceptions are made.( Ijtihad) Classical Fiqh theory predicts that all legal problems of humanity can be resolved in this way.

Principles of jurisprudence (''uṣūl al-fiqh'' / ijtihad process)

Fiqh is traditionally divided into the fields of ''uṣūl al-fiqh'' (lit. the roots of fiqh), which studies the theoretical principles of jurisprudence, and ''furūʿ al-fiqh'' (lit. the branches of fiqh), which is devoted to elaboration of rulings on the basis of these principles.

Traditional theory of Islamic jurisprudence elaborates how scriptures should be interpreted from the standpoint of linguistics and rhetoric. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date. In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus ('' ijmaʿ'') and analogical reasoning (''qiyas''). It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools. This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question. The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason ('' ʿaql'') as a source of law in place of ''qiyas'' and extension of the notion of sunnah to include traditions of the imams.

Legal Sources of Sharia / Legalization of Ahkam

Islamic scholar Sayyid Rashid Rida (1865 - 1935 C.E) lists the four basic sources of Islamic law, agreed upon by all Sunni Muslims:

"the ell-knownsources of legislation in Islam are four: the ''Qur'an'', the ''Sunnah'', the consensus of the ''ummah'' and '' ijtihad'' undertaken by competent jurists"

* ''Quran'': In Islam, the Quran is considered to be the most sacred source of law. Classical jurists held its textual integrity to be beyond doubt on account of it having been handed down by many people in each generation, which is known as "recurrence" or "concurrent transmission" (''tawātur''). Only several hundred verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance, though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means.
* ''Hadith'': The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic. Early Islamic scholars developed a methodology for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains. These criteria narrowed down the vast corpus of prophetic traditions to several thousand "sound" hadiths, which were collected in several canonical compilations. The hadiths which enjoyed concurrent transmission were deemed unquestionably authentic; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge. The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages. Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings.
* ''Ijma'': It is the consensus that could in principle elevate a ruling based on probable evidence to absolute certainty. This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error. This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community. However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development. A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion. The cases for which there was a consensus account form less than 1 percent of the body of classical jurisprudence.
* ''Qiyas'': It is the Analogical reasoning that is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule. In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the "cause" (''ʿilla'') shared by these situations, which in this case is identified to be intoxication. Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate. Majority of Sunni Muslims view ''Qiyas'' as a central Pillar of '' Ijtihad''. On the other hand; Zahirites, Ahmad ibn Hanbal, Al-Bukhari, early Hanbalites, etc rejected ''Qiyas'' amongst the Sunnis. Twelver Shia jurisprudence also does not recognize the use of ''qiyas'', but relies on reason (''ʿaql'') in its place.

Quranism (al-Qurʾāniyya or Quran-only Islam) holds the belief that traditional religious clergy has corrupted religion, and Islamic guidance should be based strictly on the Quran, thus opposing the religious authority of all or most of the hadith literature and extra non-Quranic sources. Quranists believe that religious laws (as opposed to narrations) already in the Quran are clear and complete. Quranists claim that the vast majority of hadith literature may be fabrications, and that the Quran itself criticizes the hadith (and its role in Islam) both in the technical sense and the general sense.''al-Manar'' 12(1911): 693–99; cited in Juynboll, ''Authenticity'', 30; cited in D.W. Brown, ''Rethinking tradition in modern Islamic thought'', 1996: p.120

Ijtihad

The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as '' istihsan'' (juristic preference), '' istislah'' (consideration of public interest) and '' istishab'' (presumption of continuity). A jurist who is qualified to practice ijtihad is known as a ''mujtahid''. The use of independent reasoning to arrive at a ruling is contrasted with '' taqlid'' (imitation), which refers to following the rulings of a mujtahid. By the beginning of the 10th century, development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted. From the 18th century on, leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad, which they saw as a return to the vitality of early Islamic jurisprudence.

= Labelling of behaviors (Fıqh, ''aḥkām'' or ''etiquettes'')

=

Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong. Sharia rulings fall into one of five categories known as "the five decisions" (''al-aḥkām al-khamsa''): mandatory (''farḍ'' or ''wājib''), recommended (''mandūb'' or ''mustaḥabb''), neutral (''mubāḥ''), reprehensible (''makrūh''), and forbidden (''ḥarām''). It is a sin or a crime to perform a forbidden action or not to perform a mandatory action. Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court. Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgment from God. Jurists disagree on whether the term '' ḥalāl'' covers the first three or the first four categories. The legal and moral verdict depends on whether the action is committed out of necessity (''ḍarūra'') and on the underlying intention ('' niyya''), as expressed in the legal maxim "acts are valuated accordingto intention."

These actions have material or moral equivalents in the classical understanding of sharia. The abandonment of the actions that are considered fard, wajib and sunnah, and doing the things that are considered makruh and haram are penalized (as hadd or tazir punishments).

Legal rights and responsibilities in Sharia begin at puberty (baligh).

Constant committing of minor sins or the major sins that do not require greater punishment, which are described as wickedness ( fisq) in fiqh terminology, are punished by the judge's discretion, without a certain limit and measure. In tazir punishments, there is no obligation to prove the crime ( principle of legality) by witnessing or similar mechanisms.

Aims of Sharia and public interest

''Maqāṣid'' (aims or purposes) of Sharia and ''maṣlaḥa'' (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times. They were first clearly articulated by al-Ghazali (d. 1111), who argued that ''maslaha'' was God's general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property. Although most classical-era jurists recognized ''maslaha'' and ''maqasid'' as important legal principles, they held different views regarding the role they should play in Islamic law. Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning. Others regarded them as an independent source of law, whose general principles could override specific inferences based on the letter of scripture. While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence. These scholars expanded the inventory of ''maqasid'' to include such aims of Sharia as reform and women's rights ( Rashid Rida); justice and freedom ( Mohammed al-Ghazali); and human dignity and rights ( Yusuf al-Qaradawi).

Branches of law / Furū al Fiqh

The domain of ''furūʿ al-fiqh'' (lit. branches of fiqh) is traditionally divided into ''ʿibādāt'' (rituals or acts of worship) and ''muʿāmalāt'' (social relations). Many jurists further divided the body of substantive jurisprudence into "the four quarters", called rituals, sales, marriage and injuries. Each of these terms figuratively stood for a variety of subjects. For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics. Juristic works were arranged as a sequence of such smaller topics, each called a "book" (''kitab''). The special significance of ritual was marked by always placing its discussion at the start of the work.

Some historians distinguish a field of Islamic criminal law, which combines several traditional categories. Several crimes with scripturally prescribed punishments are known as '' hudud''. Jurists developed various restrictions which in many cases made them virtually impossible to apply. Other crimes involving intentional bodily harm are judged according to a version of '' lex talionis'' that prescribes a punishment analogous to the crime ('' qisas''), but the victims or their heirs may accept a monetary compensation (''diya'') or pardon the perpetrator instead; only ''diya'' is imposed for non-intentional harm. Other criminal cases belong to the category of '' taʿzīr'', where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge's discretion. In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to Sharia.

The two major genres of ''furūʿ'' literature are the ''mukhtasar'' (concise summary of law) and the ''mabsut'' (extensive commentary). ''Mukhtasars'' were short specialized treatises or general overviews that could be used in a classroom or consulted by judges. A ''mabsut'', which usually provided a commentary on a ''mukhtasar'' and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions. The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance. At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions. Other juristic genres include the ''qawāʿid'' (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar.

Classical jurisprudence has been described as "one of the major intellectual achievements of Islam" and its importance in Islam has been compared to that of theology in Christianity.

Schools of law

The main Sunni schools of law (''madhhabs'') are the Hanafi, Maliki, Shafi'i and Hanbali madhhabs. They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab. These four schools recognize each other's validity and they have interacted in legal debate over the centuries. Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world. For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia. The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs. The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought. The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools. The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.

The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of ''takhayyur'' (selection of rulings without restriction to a particular madhhab) and ''talfiq'' (combining parts of different rulings on the same question). Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements. Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.

Pre-modern Islamic legal system

Socio-political context

The social fabric of pre-modern Islamic societies was largely defined by close-knit communities organized around kinship groups and local neighborhoods. Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community. Court litigation was seen as a last resort for cases where informal mediation had failed. This attitude was reflected in the legal maxim "amicable settlement is the best verdict" (''al-sulh sayyid al-ahkam''). In court disputes, qadis were generally less concerned with legal theory than with achieving an outcome that enabled the disputants to resume their previous social relationships. This could be accomplished by avoiding a total loss for the losing side or simply giving them a chance to articulate their position in public and obtain a measure of psychological vindication. Islamic law required judges to be familiar with local customs, and they exercised a number of other public functions in the community, including mediation and arbitration, supervision of public works, auditing waqf finances, and looking after the interests of orphans.

Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers. The law derived its authority not from political control, but rather from the collective doctrinal positions of the legal schools (madhhabs) in their capacity as interpreters of the scriptures. The ulema (religious scholars) were involved in management of communal affairs and acted as representatives of the Muslim population vis-à-vis the ruling dynasties, who before the modern era had limited capacity for direct governance. Military elites relied on the ulema for religious legitimation, with financial support for religious institutions being one of the principal means through which these elites established their legitimacy. In turn, the ulema depended on the support of the ruling elites for the continuing operation of religious institutions. Although the relationship between secular rulers and religious scholars underwent a number of shifts and transformations in different times and places, this mutual dependence characterized Islamic history until the start of the modern era. Additionally, since Sharia contained few provisions in several areas of public law, Muslim rulers were able to legislate various collections of economic, criminal and administrative laws outside the jurisdiction of Islamic jurists, the most famous of which is the '' qanun'' promulgated by Ottoman sultans beginning from the 15th century. The Mughal emperor Aurangzeb (r. 1658–1707) issued a hybrid body of law known as Fatawa-e-Alamgiri, based on Hanafi fatwas as well as decisions of Islamic courts, and made it applicable to all religious communities on the Indian subcontinent. This early attempt to turn Islamic law into semi-codified state legislation sparked rebellions against Mughal rule.

Social classes; Women, slaves, non-Muslims etc

In both the rules of civil disputes and application of penal law, classical Sharia distinguishes between men and women, between Muslims and non-Muslims, and between free persons and slaves.

Traditional Islamic law assumes a patriarchal society with a man at the head of the household. Different legal schools formulated a variety of legal norms which could be manipulated to the advantage of men or women, but women were generally at a disadvantage with respect to the rules of inheritance, blood money (''diya''), and witness testimony, where in some cases a woman's value is effectively treated as half of that of a man. Various financial obligations imposed on the husband acted as a deterrent against unilateral divorce and commonly gave the wife financial leverage in divorce proceedings. Women were active in Sharia courts as both plaintiffs and defendants in a wide variety of cases, though some opted to be represented by a male relative.

Sharia was intended to regulate affairs of the Muslim community. Non-Muslims residing under Islamic rule had the legal status of dhimmi, which entailed a number of protections, restrictions, freedoms and legal inequalities, including payment of the jizya tax. Dhimmi communities had legal autonomy to adjudicate their internal affairs. Cases involving litigants from two different religious groups fell under jurisdiction of Sharia courts, where (unlike in secular courts) testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases or at all. This legal framework was implemented with varying degree of rigor. In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation. The Mughal emperor Aurangzeb imposed Islamic law on all his subjects, including provisions traditionally applicable only to Muslims, while some of his predecessors and successors are said to have abolished jizya. According to Ottoman records, non-Muslim women took their cases to a Sharia court when they expected a more favorable outcome on marital, divorce and property questions than in Christian and Jewish courts. Over time, non Muslims in the Ottoman Empire could be more or less likely to use Islamic courts. For example, in 1729 at the Islamic court in Galata only two percent of cases involved non-Muslims whereas in 1789 non-Muslims were a part of thirty percent of cases. Ottoman court records also reflect the use of Islamic courts by formerly non-Muslim women. As it was illegal for non-Muslims to own Muslims and for non-Muslim men to marry Muslim women in the Ottoman empire, conversion to Islam would have been an option for non-Muslim women to free themselves of a spouse or master they did not want to subject to. However, this would likely lead to them being shunned by their former community.

Classical fiqh acknowledges and regulates slavery as a legitimate institution. It granted slaves certain rights and protections, improving their status relative to Greek and Roman law, and restricted the scenarios under which people could be enslaved. However, slaves could not inherit or enter into a contract, and were subject to their master's will in a number of ways. The labor and property of slaves were owned by the master, who was also entitled to sexual submission of his unmarried slaves.

Formal legal disabilities for some groups coexisted with a legal culture that viewed Sharia as a reflection of universal principles of justice, which involved protection of the weak against injustices committed by the strong. This conception was reinforced by the historical practice of Sharia courts, where peasants "almost always" won cases against oppressive landowners, and non-Muslims often prevailed in disputes against Muslims, including such powerful figures as the governor of their province. In family matters the Sharia court was seen as a place where the rights of women could be asserted against their husband's transgressions.

Courts

A judge (qadi) was in charge of the qadi's court (''mahkama''), also called the Sharia court. Qadis were trained in Islamic law, though not necessarily to a level required to issue fatwas. Court personnel also included a number of assistants performing various roles. Judges were theoretically independent in their decisions, though they were appointed by the ruler and often experienced pressure from members of the ruling elite where their interests were at play. The role of qadis was to evaluate the evidence, establish the facts of the case, and issue a verdict based on the applicable rulings of Islamic jurisprudence. The qadi was supposed to solicit a fatwa from a mufti if it was unclear how the law should be applied to the case. Since Islamic legal theory does not recognize the distinction between private and public law, court procedures were identical for civil and criminal cases, and required a private plaintiff to produce evidence against the defendant. The main type of evidence was oral witness testimony. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases. Most historians believe that because of these stringent procedural norms, qadi's courts at an early date lost their jurisdiction over criminal cases, which were instead handled in other types of courts.

If an accusation did not result in a verdict in a qadi's court, the plaintiff could often pursue it in another type of court called the '' mazalim'' court, administered by the ruler's council. The rationale for ''mazalim'' (lit. wrongs, grievances) courts was to address the wrongs that Sharia courts were unable to address, including complaints against government officials. Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler. ''Mazalim'' verdicts were supposed to conform to the spirit of Sharia, but they were not bound by the letter of the law or the procedural restrictions of qadi's courts.

The police ('' shurta''), which took initiative in preventing and investigating crime, operated its own courts. Like the mazalim courts, police courts were not bound by the rules of Sharia and had the powers to inflict discretionary punishments. Another office for maintaining public order was the '' muhtasib'' (market inspector), who was charged with preventing fraud in economic transactions and infractions against public morality. The ''muhtasib'' took an active role in pursuing these types of offenses and meted out punishments based on local custom.

Jurists

Sharia was traditionally interpreted by muftis. During the first few centuries of Islam, muftis were private legal specialists who normally also held other jobs. They issued fatwas (legal opinions), generally free of charge, in response to questions from laypersons or requests for consultation coming from judges, which would be stated in general terms. Fatwas were regularly upheld in courts, and when they were not, it was usually because the fatwa was contradicted by a more authoritative legal opinion. The stature of jurists was determined by their scholarly reputation. The majority of classical legal works, written by author-jurists, were based in large part on fatwas of distinguished muftis. These fatwas functioned as a form of legal precedent, unlike court verdicts, which were valid only for the given case. Although independent muftis never disappeared, from the 12th century onward Muslim rulers began to appoint salaried muftis to answer questions from the public. Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, while Shia jurists in Iran progressively asserted an autonomous authority starting from the early modern era.

Islamic law was initially taught in study circles that gathered in mosques and private homes. The teacher, assisted by advanced students, provided commentary on concise treatises of law and examined the students' understanding of the text. This tradition continued to be practiced in ''madrasas'', which spread during the 10th and 11th centuries. Madrasas were institutions of higher learning devoted principally to study of law, but also offering other subjects such as theology, medicine, and mathematics. The madrasa complex usually consisted of a mosque, boarding house, and a library. It was maintained by a ''waqf'' (charitable endowment), which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. At the end of a course, the professor granted a license ('' ijaza'') certifying a student's competence in its subject matter. Students specializing in law would complete a curriculum consisting of preparatory studies, the doctrines of a particular madhhab, and training in legal disputation, and finally write a dissertation, which earned them a license to teach and issue fatwas.

Modern legal reforms

Under colonial rule

Starting from the 17th century, European powers began to extend political influence over lands ruled by Muslim dynasties, and by the end of the 19th century, much of the Muslim world came under colonial domination. The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations. Islamic commercial laws were also replaced by European (mostly French) laws in Muslim states which retained formal independence, because these states increasingly came to rely on Western capital and could not afford to lose the business of foreign merchants who refused to submit to Islamic regulations.

The first significant changes to the legal system of British India were initiated in the late 18th century by the governor of Bengal Warren Hastings. Hastings' plan of legal reform envisioned a multi-tiered court system for the Muslim population, with a middle tier of British judges advised by local Islamic jurists, and a lower tier of courts operated by qadis. Hastings also commissioned a translation of the classic manual of Hanafi fiqh, '' Al-Hidayah'', from Arabic into Persian and then English, later complemented by other texts. These translations enabled British judges to pass verdicts in the name of Islamic law based on a combination of Sharia rules and common law doctrines, and eliminated the need to rely on consultation by local ulema, whom they mistrusted. In the traditional Islamic context, a concise text like ''Al-Hidayah'' would be used as a basis for classroom commentary by a professor, and the doctrines thus learned would be mediated in court by judicial discretion, consideration of local customs and availability of different legal opinions that could fit the facts of the case. The British use of ''Al-Hidayah'', which amounted to an inadvertent codification of Sharia, and its interpretation by judges trained in Western legal traditions anticipated later legal reforms in the Muslim world.

British administrators felt that Sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed". In the course of the 19th century, criminal laws and other aspects of the Islamic legal system in India were supplanted by British law, with the exception of Sharia rules retained in family laws and some property transactions. Among other changes, these reforms brought about abolition of slavery, prohibition of child marriage, and a much more frequent use of capital punishment. The resulting legal system, known as ''Anglo-Muhammadan law'', was treated by the British as a model for legal reforms in their other colonies. Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice. This, together with their conception of Islamic law as a collection of inflexible rules, led to an emphasis on traditionalist forms of Sharia that were not rigorously applied in the pre-colonial period and served as a formative influence on the modern identity politics of the Muslim world.

Ottoman empire

During the colonial era, Muslim rulers concluded that they could not resist European pressure unless they modernized their armies and built centrally administered states along the lines of Western models. In the Ottoman empire, the first such changes in the legal sphere involved placing the formerly independent waqfs under state control. This reform, passed in 1826, enriched the public treasury at the expense of the waqfs, thereby depleting the financial support for traditional Islamic legal education. Over the second half of the 19th century, a new hierarchical system of secular courts was established to supplement and eventually replace most religious courts. Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects. The Tanzimat reforms of the 19th century saw reorganization of both Islamic civil law and sultanic criminal law after the model of the Napoleonic Code. In the 1870s, a codification of civil law and procedure (excepting marriage and divorce), called the '' Mecelle'', was produced for use in both Sharia and secular courts. It adopted the Turkish language for the benefit of the new legal class who no longer possessed competence in the Arabic idiom of traditional jurisprudence. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". The Mecelle was promulgated as a '' qanun'' (sultanic code), which represented an unprecedented assertion of the state's authority over Islamic civil law, traditionally the preserve of the ulema. The 1917 Ottoman Law of Family Rights adopted an innovative approach of drawing rules from minority and majority opinions of all Sunni madhhabs with a modernizing intent. The Republic of Turkey, which emerged after the dissolution of the Ottoman Empire, abolished its Sharia courts and replaced Ottoman civil laws with the Swiss Civil Code, but Ottoman civil laws remained in force for several decades in Jordan, Lebanon, Palestine, Syria, and Iraq.

Nation states

Westernization of legal institutions and expansion of state control in all areas of law, which began during the colonial era, continued in nation-states of the Muslim world. Sharia courts at first continued to exist alongside state courts as in earlier times, but the doctrine that sultanic courts should implement the ideals of Sharia was gradually replaced by legal norms imported from Europe. Court procedures were also brought in line with European practice. Though the Islamic terms ''qadi'' and ''mahkama'' (qadi's/Sharia court) were preserved, they generally came to mean judge and court in the Western sense. While in the traditional Sharia court all parties represented themselves, in modern courts they are represented by professional lawyers educated in Western-style law schools, and the verdicts are subject to review in an appeals court. In the 20th century, most countries abolished a parallel system of Sharia courts and brought all cases under a national civil court system.

In most Muslim-majority countries, traditional rules of classical fiqh have been largely preserved only in family law. In some countries religious minorities such as Christians or Shia Muslims have been subject to separate systems of family laws. Many Muslims today believe that contemporary Sharia-based laws are an authentic representation of the pre-modern legal tradition. In reality, they generally represent the result of extensive legal reforms made in the modern era. As traditional Islamic jurists lost their role as authoritative interpreters of the laws applied in courts, these laws were codified by legislators and administered by state systems which employed a number of devices to effect changes, including:
* Selection of alternative opinions from traditional legal literature (''takhayyur''), potentially among multiple madhhabs or denominations, and combining parts of different rulings (''talfiq'').
* Appeal to the classical doctrines of necessity (''darura''), public interest (''maslaha''), and the objectives (''maqasid'') of Sharia, which played a limited role in classical fiqh, but were now given wider utilitarian applications.
* Changes in administrative law that grant the courts discretionary powers to restrict certain practices which are not forbidden by substantive law (e.g., polygamy), in some cases imposing penal sanctions as additional deterrence.
* Modernist interpretation of Islamic scriptures without adherence to the rules or methodologies of traditional jurisprudence, known as ''neo-ijtihad''.

The most powerful influence on liberal reformist thought came from the work of the Egyptian Islamic scholar Muhammad ʿAbduh (1849–1905). Abduh viewed only Sharia rules pertaining to religious rituals as inflexible, and argued that the other Islamic laws should be adapted based on changing circumstances in consideration of social well-being. Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence. He championed a creative approach to ijtihad that involved direct interpretation of scriptures as well as the methods of ''takhayyur'' and ''talfiq''.

One of the most influential figures in modern legal reforms was the Egyptian legal scholar Abd El-Razzak El-Sanhuri (1895–1971), who possessed expertise in both Islamic and Western law. Sanhuri argued that reviving Islamic legal heritage in a way that served the needs of contemporary society required its analysis in light of the modern science of comparative law. He drafted the civil codes of Egypt (1949) and Iraq (1951) based on a variety of sources, including classical fiqh, European laws, existing Arab and Turkish codes, and the history of local court decisions. Sanhuri's Egyptian code incorporated few classical Sharia rules, but he drew on traditional jurisprudence more frequently for the Iraqi code. Sanhuri's codes were subsequently adopted in some form by most Arab countries.

Aside from the radical reforms of Islamic family law carried out in Tunisia (1956) and Iran (1967), governments often preferred to make changes that made a clear break from traditional Sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage. Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of Quranic shares. Some reforms have faced strong conservative opposition. For example, the 1979 reform of Egyptian family law, promulgated by Anwar Sadat through presidential decree, provoked an outcry and was annulled in 1985 by the supreme court on procedural grounds, to be later replaced by a compromise version. The 2003 reform of Moroccan family law, which sought to reconcile universal human rights norms and the country's Islamic heritage, was drafted by a commission that included parliamentarians, religious scholars and feminist activists, and the result has been praised by international rights groups as an example of progressive legislation achieved within an Islamic framework.

Islamization

The Islamic revival of the late 20th century brought the topic of Sharia to international attention in the form of numerous political campaigns in the Muslim world calling for full implementation of Sharia. A number of factors have contributed to the rise of these movements, classified under the rubric of Islamism or political Islam, including the failure of authoritarian secular regimes to meet the expectations of their citizens, and a desire of Muslim populations to return to more culturally authentic forms of socio-political organization in the face of a perceived cultural invasion from the West. Islamist leaders such as Ayatollah Khomeini drew on leftist anticolonialist rhetoric by framing their call for Sharia as a resistance struggle. They accused secular leaders of corruption and predatory behavior, and claimed that a return to Sharia would replace despotic rulers with pious leaders striving for social and economic justice. In the Arab world these positions are often encapsulated in the slogan "Islam is the solution" (''al-Islam huwa al-hall'').

Full implementation of Sharia theoretically refers to expanding its scope to all fields of law and all areas of public life. In practice, Islamization campaigns have focused on a few highly visible issues associated with the conservative Muslim identity, particularly women's hijab and the ''hudud'' criminal punishments (whipping, stoning and amputation) prescribed for certain crimes. For many Islamists, ''hudud'' punishments are at the core of the divine Sharia because they are specified by the letter of scripture rather than by human interpreters. Modern Islamists have often rejected, at least in theory, the stringent procedural constraints developed by classical jurists to restrict their application. To the broader Muslim public, the calls for Sharia often represent, even more than any specific demands, a vague vision of their current economic and political situation being replaced by a "just utopia".

A number of legal reforms have been made under the influence of these movements, starting from the 1970s when Egypt and Syria amended their constitutions to specify Sharia as the basis of legislation. The Iranian Revolution of 1979 represented a watershed for Islamization advocates, demonstrating that it was possible to replace a secular regime with a theocracy. Several countries, including Iran, Pakistan, Sudan, and some Nigerian states have incorporated hudud rules into their criminal justice systems, which, however, retained fundamental influences of earlier Westernizing reforms. In practice, these changes were largely symbolic, and aside from some cases brought to trial to demonstrate that the new rules were being enforced, hudud punishments tended to fall into disuse, sometimes to be revived depending on the local political climate. The supreme courts of Sudan and Iran have rarely approved verdicts of stoning or amputation, and the supreme courts of Pakistan and Nigeria have never done so. Nonetheless, Islamization campaigns have also had repercussions in several other areas of law, leading to curtailment of rights of women and religious minorities, and in the case of Sudan contributing to the breakout of a civil war.

Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern Sharia-based "Islamic state" should take. This is particularly the case for the theorists of Islamic economics and Islamic finance, who have advocated both free-market and socialist economic models. The notion of "Sharia-compliant" finance has become an active area of doctrinal innovation and its development has had a major impact on business operations around the world.

Contemporary applications

In state laws

Types of legal systems

The legal systems of most Muslim-majority countries can be classified as either secular or mixed. Sharia plays no role in secular legal systems. In mixed legal systems, Sharia rules are allowed to influence some national laws, which are codified and may be based on European or Indian models, and the central legislative role is played by politicians and modern jurists rather than the ulema (traditional Islamic scholars). Saudi Arabia and some other Gulf states possess what may be called classical Sharia systems, where national law is largely uncodified and formally equated with Sharia, with ulema playing a decisive role in its interpretation. Iran has adopted some features of classical Sharia systems, while also maintaining characteristics of mixed systems, like codified laws and a parliament.

Constitutional law

Constitutions of many Muslim-majority countries refer to Sharia as a source or the main source of law, though these references are not in themselves indicative of how much the legal system is influenced by Sharia, and whether the influence has a traditionalist or modernist character. The same constitutions usually also refer to universal principles such as democracy and human rights, leaving it up to legislators and the judiciary to work out how these norms are to be reconciled in practice. Conversely, some countries (e.g., Algeria), whose constitution does not mention Sharia, possess Sharia-based family laws. Nisrine Abiad identifies Bahrain, Iran, Pakistan, and Saudi Arabia as states with "strong constitutional consequences of Sharia "on the organization and functioning of power".

Family law

Except for secular systems, Muslim-majority countries possess Sharia-based laws dealing with family matters (marriage, inheritance, etc.). These laws generally reflect influence of various modern-era reforms and tend to be characterized by ambiguity, with traditional and modernist interpretations often manifesting themselves in the same country, both in legislation and court decisions. In some countries (e.g., parts of Nigeria), people can choose whether to pursue a case in a Sharia or secular court.

Criminal law

Countries in the Muslim world generally have criminal codes influenced by civil law or common law, and in some cases a combination of Western legal traditions. Saudi Arabia has never adopted a criminal code and Saudi judges still follow traditional Hanbali jurisprudence. In the course of Islamization campaigns, several countries (Libya, Pakistan, Iran, Sudan, Mauritania, and Yemen) inserted Islamic criminal laws into their penal codes, which were otherwise based on Western models. In some countries only ''hudud'' penalties were added, while others also enacted provisions for '' qisas'' (law of retaliation) and ''diya'' (monetary compensation). Iran subsequently issued a new "Islamic Penal Code". The criminal codes of Afghanistan and United Arab Emirates contain a general provision that certain crimes are to be punished according to Islamic law, without specifying the penalties. Some Nigerian states have also enacted Islamic criminal laws. Laws in the Indonesian province of Aceh provide for application of discretionary ('' ta'zir'') punishments for violation of Islamic norms, but explicitly exclude ''hudud'' and ''qisas''. Brunei has been implementing a "Sharia Penal Code", which includes provisions for stoning and amputation, in stages since 2014. The countries where ''hudud'' penalties are legal do not use stoning and amputation routinely, and generally apply other punishments instead.

Property law

Sharia recognizes the concept of ''haqq''. ''Haqq'' refers to personal rights of the individual and the right to generate and accumulate wealth. The various ways in which property can be acquired under Sharia are purchase, inheritance, bequest, physical or mental effort, ''diya'' and donations. Certain concepts relating to property under Sharia are ''Mulk'', ''Waqf'', ''Mawat'' and ''Motasarruf''.

Muslim-minority countries

Sharia also plays a role beyond religious rituals and personal ethics in some countries with Muslim minorities. For example, in Israel Sharia-based family laws are administered for the Muslim population by the Ministry of Justice through the Sharia Courts. In India, the Muslim Personal Law (Shariat) Application Act provides for the use of Islamic law for Muslims in several areas, mainly related to family law. In England, the Muslim Arbitration Tribunal makes use of Sharia family law to settle disputes, though this limited adoption of Sharia is controversial.

Court procedures

Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. In Saudi Arabia and Qatar, which have preserved traditional procedure in Sharia courts, trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents under the principle of '' stare decisis'', and unlike civil law, Sharia is left to the interpretation in each case and has no formally codified universal statutes.

The rules of evidence in Sharia courts traditionally prioritize oral testimony, and witnesses must be Muslim.Antoinette Vlieger (2012), Domestic Workers in Saudi Arabia and the Emirates, , Chapter 4 Male Muslim witnesses are deemed more reliable than female Muslim witnesses, and non-Muslim witnesses considered unreliable and receive no priority in a Sharia court. In civil cases in some countries, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness. In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of Sharia, such as those found in Hanbali jurisprudence, which forms the basis of law in Saudi Arabia.

Criminal cases

A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible in traditional sharia courts for hudud crimes, i.e., the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft. According to classical jurisprudence, testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male. Forensic evidence (''i.e.'', fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence may likewise rejected in hudud cases in favor of eyewitnesses in some modern interpretations. In the case of regulations that were part of local Malaysian legislation that did not go into effect, this could cause severe difficulties for women plaintiffs in rape cases. In Pakistan, DNA evidence is rejected in paternity cases on the basis of legislation that favors the presumption of children's legitimacy, while in sexual assault cases DNA evidence is regarded as equivalent to expert opinion and evaluated on a case-by-case basis.

Civil cases

recommends written financial contracts with reliable witnesses, although there is dispute about equality of female testimony.

Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice ( Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a Sharia court as a form of debt. Written contracts were traditionally considered paramount in Sharia courts in the matters of dispute that are debt-related, which includes marriage contracts. Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.

In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses historically triumphed over written contracts. Islamic jurists traditionally held that written commercial contracts may be forged.Reem Meshal (2014), ''Sharia and the Making of the Modern Egyptian'', Oxford University Press, , pp. 96–101 and Chapter 4Timur Kuran (2012), The Long Divergence: How Islamic Law Held Back the Middle East, Princeton University Press, , pp. 246–49 and Chapter 12 Timur Kuran states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim-majority nations and communities.

In lieu of written evidence, oaths are traditionally 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. Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often "maintain their testimony right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case."Frank, Michael J. (April 2006). "Trying Times – The Prosecution of Terrorists in the Central Criminal Court of Iraq". '' Florida Journal of International Law''. Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury.

Diya

In classical jurisprudence monetary compensation for bodily harm (''diya