In an attempt to reconcile rival groups, a brilliant jurist named Shafii systematized and developed what have been called the « roots of law. » Shafii argued that when resolving a legal issue, the Kadi or government judge should first consult the Quran. If the answer was not clear, the judge would have to refer to Muhammad`s authentic statements and decisions. If the answer continues to elude the judge, he should pay attention to the consensus of Muslim jurists on this issue. As the judge was still unable to find a solution, he was able to formulate his own answer by analogy based on the « closest and most appropriate precedent in this case ». In all countries surveyed, respondents defined Sharia as « the revealed Word of God » rather than « a body of laws developed by men on the basis of God`s Word. » [188] In analyzing the survey, Amaney Jamal argued that there is no uniform and common understanding of the terms « Sharia » and « Islamic law » among respondents. Especially in countries where Muslim citizens have little experience with the rigid application of Shariah-based state laws, these notions are associated with Islamic ideals such as equality and social justice rather than prohibitions. [189] Other surveys have shown that the word « sharia » for Egyptians is associated with notions of political, social, and gender justice. [190] In 1998, Turkey`s Constitutional Court banned and dissolved Turkey`s Refah party for its stated intention to introduce Sharia-based laws, ruling that this would change Turkey`s secular order and undermine democracy. [212] In response to Refah`s appeal, the European Court of Human Rights ruled that « Sharia law is incompatible with the fundamental principles of democracy. » [213] [214] [215] Refah`s notion of « plurality of legal systems based on religion » was found to be contrary to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was decided that it « abolishes the role of the State as guarantor of individual rights and freedoms » and « violates the principle of non-discrimination between individuals in the exercise of public freedoms, which is one of the fundamental principles of democracy ».

[216] In an analysis, Maurits S. Berger found the decision « nebulous » and legally surprising, as the court had not defined what it meant by « Sharia » and did not expect, for example, that Sharia rules for Islamic rituals would violate European human rights values. [217] Kevin Boyle also criticized the decision for failing to distinguish between extremist and dominant interpretations of Islam, implying that the peaceful defence of Islamic doctrines (« an attitude that does not respect [the principle of secularism] ») is not protected by the provisions of the European Convention on Freedom of Religion. [218] The legal systems of most Muslim-majority countries can be classified as secular or mixed. Sharia law plays no role in secular legal systems. In mixed legal systems, Sharia rules are allowed to influence certain national laws, which are codified and may be based on European or Indian models, and the central legislative role is played by modern politicians and jurists rather than ulema (traditional Islamic scholars). Saudi Arabia and some other Gulf states have so-called classical Sharia systems, in which national law is largely uncodified and formally assimilated to Sharia law, with ulema playing a crucial role in its interpretation. Iran has adopted some features of classical Sharia systems while retaining the characteristics of mixed systems such as codified laws and a parliament. [120] Traditionally, Muslim countries belong to one of the four great schools of law that developed in the 10th century. These law schools interpreted Sharia law a little differently in various areas, but they were understood to be just as orthodox and valid. Today, Islamic legal decisions are mainly applied in the field of personal and family law, which regulates matters of marriage, divorce and inheritance, among others.

Shafii caused controversy. He was constantly critical of what he called « people of reason » and « people of tradition. » While speaking in Egypt in 820, he was physically assaulted by angry opponents and died a few days later. Nevertheless, Shafii`s approach later spread throughout the Islamic world. Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, said: « Anthropological research shows that members of local communities often do not clearly distinguish whether and to what extent their norms and practices are based on local traditions, tribal customs or religion. Those who adhere to a conflicting view of Sharia tend to attribute to Sharia and religion many undesirable practices that neglect custom and culture, even when high-ranking religious authorities have claimed otherwise. [205] For example, a Muslim who is wondering what to do if his colleagues invite him to the pub after work may turn to a Sharia scholar to ensure that he is acting within the legal framework of his religion. Classical Sharia was not a code of law, but a body of religious and legal scholarship that continued to evolve over the next 1,000 years. The following sections illustrate some fundamental features of Islamic law as it has been traditionally applied. Muslim scholars, reflecting on the broader purposes of Sharia, have said that the laws derived from it must always protect: people`s life, intellect, family, property, and honor. These five goals create what we can consider a pre-modern Islamic Bill of Rights that protects civil liberties.

George Makdisi argued that the madrasa certification system corresponded to the system of legal schools in the West from which the modern university system emerged. The triple status of faqih (« magister of law »), mufti (« professor of legal opinions ») and mudarris (« teacher »), conferred by the classical Islamic legal degree, had its equivalents in the medieval Latin terms magister, professor and physician, although they were all used interchangeably in East and West. [349] Makdisi suggested that the medieval European doctorate licentia docendi was modeled on the Islamic degree ijazat al-tadris wa-l-ifta`, of which it is a literal translation, omitting the term ifta` (issuing fatwas). [349] [350] He also argued that these systems shared fundamental freedoms: the freedom of a professor to profess his or her personal opinion and the freedom of a student to judge what he or she learns. [349] Sharia means « the way » in Arabic and does not refer to a body of law. Sharia is more accurately understood as a reference to far-reaching moral and ethical principles derived from the Qur`an and the practices and statements (hadiths) of the Prophet Muhammad. These general principles are interpreted by lawyers to make specific legal decisions and moral prescriptions. All court decisions resulting from the interpretation of Sharia law are commonly referred to as Islamic law or « fiqh » in Arabic.

It is the result of human intellectual activity and therefore, by definition, fallible and changing. We see this in the development of different schools of thought. In the first centuries of Islam, there were disagreements between different groups of jurists about the correct process of interpreting the Qur`an and the Sunnah. As a result, different schools of law (madhhab) developed in different regions, each offering slightly different conclusions about what God wanted Muslims to do in a given situation. Among Sunni Muslims, there are four surviving schools of jurisprudence (Hanafi, Hanbali, Maliki, Shafi`i), all of which can be considered « orthodox. » While jurists disagreed on some issues, many realized that disagreements (ikthilaf) were inevitable and even legitimate as long as the fundamental tenets of Islam were respected. The Islamic legal tradition has a number of parallels with Judaism. In both religions, revealed law occupies a central place, unlike Christianity, which has no revealed law and where theology, rather than law, is considered the main field of religious study. [340] Both Islamic law and Jewish law (halacha) derive from formal textual revelations (Qur`an and Pentateuch) as well as less formal, orally transmitted prophetic traditions (Hadith and Mishnah). According to some scholars, the words Sharia and halakha literally mean « the path to follow. » .

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