Charia

The charia (Arab, šarīʿaʰ , “the way”) is a whole of codes of conduct applicable to the Moslem . The term used in Arab in the religious context means: “way to respect the Law God”. He is of use to indicate in Occident the charia by the term of Islamic law (this term is used besides in place of Moslem Droit). In a broader direction, the charia indicates also the Islamic religion including three dimensions and named Al-shariʿa Al-tsalatsah (“three charia”), IE the tender ( Islam ), the faith ( iman ) and to make what is beautiful ( ihsan ).

The charia codifies at the same time the public and private aspects of the life of a Moslem, as well as the interactions between the believers. The Moslems regard this whole of standards as the emanation of the will of God ( Sharʿ ). It is generally allowed that the level, the intensity and the extent of the normative capacity of the charia vary considerably on the historical and geographical levels.

Various meanings of the term “charia”

In Arab, “charia” comes from the root šaraʿa , which means “to open, to become clear”. A lexicon specifies that the term “charia” refers to a right and clear way, but also at an irrigated place where the human beings and the animals come to drink provided that the source of water is a brook or a river moving. Precise Lily Zakiyah Munir that charia drift with the Arab root šarʿ , which means in the beginning “the way which leads to water”, which can be interpreted as “the way which leads to the source of the life”. Used in a religious direction, this term means “the way towards God”, because the goal of the life of a Moslem is Allah (God).

In its broadest direction, the charia is composed:

of the Fiqh (as a legal system, which refers to dimension called Islam , referring to the God tender),
of the ilm C-tawhid or usul ud-DIN (theological system, which refers to dimension called iman , referring to the faith)
tasawwuf as a representation of the ihsan (literally, benevolence) as an ethical and mystical system.

Generally, the charia is included/understood in its narrowest meaning of legal system. In this direction, it is sometimes comparable with the fiqh . Moreover, the charia was not written under the authority of a particular body (indeed, Islam does not have a clergy).

Origins of the charia

The charia in Coran

The word charia (or its derivatives: charʿ and chirʿah ) is quoted in the Coran as being the way to be followed by the Moslems: Thus judge among them according to what Allah reduced. Am not their passions, far from the truth which came to you. With each one of you, We assigned a way ( chirʿah ) and a plan to be followed. (Sourate 5, verse 48)

He legislated ( chara' has ) for you as regards religion, which He had enjoint with Noah, which We you revealed, as what We have enjoint with Abraham, Moïse and Jesus: " Establish the religion; and of made not a subject of divisions. (Sourate 42, verse 13)

Then put We to you on the track ( charî' has ) Order (a clear and perfect religion). Am it thus and am not passions of those which do not know. (Sourate 45, verse 18)

charî' has in the Arab language, it is the way ( madhhab ) or the religion ( millah ). (…) The charî' has is thus all that Allah legislated, as regards religion, for its subjected.

Mahomet and the caliphs who succeeded to him applied a whole of rules religion right, without codifying them in writing.

At the 8th century, the imâm Mâlik Ibn Anas wrote its famous work Al-Muwatta ` where it gathered a whole of hadîths classified according to questions of jurisprudence, and often followed by its personal opinion. The caliph Harûn Ar-Rachid appreciated much this book and proposed to him to refer single as regards jurisprudence of it. Mâlik refused while saying: That is not possible. Because the companions of the Messenger of Allah dispersed after its death in various cities, and they brought back its Hadiths. People of each city thus know hadiths that the others do not know. -->

Sources of the charia

Seyyed Hossein Nasr, in its work The Ideals and Realities off Islam describes the way in which the charia was codified. According to him, the Coran contains all the divine Law potentially, but not in an explicit way, nor factual. A gradual process thus made it possible to codify this law in a exoteric form which is applicable to all the fields of the life of a Moslem.

For the sunnites, the principles of the divine Law contained in Coran were explained in the Hadith and the prophetic Sunna, which form together the second primary source of the law. These sources thereafter were accepted and included/understood by consensus ( ijmâ ` ) in the Islamic company of the time. Lastly, the reasoning by analogy ( qiyâs ) made it possible to supplement this Law when that was necessary.

Coran and the hadiths are the two most important sources, accepted by the whole of the Muslim community ( Oumma ). The ijmâ ` is not recognized by the Shiites, and the various schools (madhab) divergent as for the use of the qiyâs.

To these sources several other secondary sources are added:

the personal opinion or istihsân (approval)
the istislâh , taken into account of the general interest
the Ijtihad , effort of personal reflection based on the general principles of Islam. It is practiced by the muftis (lawyers) or the Mujtahid S (scientists).
the imitation of the decisions of old ( Taqlid ), in opposition to the ijtihad
the habit ( My `deck house or `âdah ). Thus preislamic habits were integrated in the Moslem law.

Historical development of the charia

A progressive definition of the charia within the Muslim community

The charia being defined in Islam like a divine law, the first problem which arose for the Muslim community, which had agreed to submit itself to this one, was to know and explain the charia.

During the time which follows immediately the life of Mahomet, there existed two " sources; données" to know the charia, Coran and the sunna of the Mahomet prophet. Insofar as these sources were not sufficient to allow the development of the future generations, the human intelligence and comprehension were recognized like a secondary source of knowledge of the charia. Two principles were then recognized: the training ( ʿilm ) and comprehension ( fiqh ). In the beginning, the ʿilm and the fiqh as means of reaching the knowledge could be applied to any field; however, with time, the study of the religious subjects became dominating and the fiqh was restricted with the only religious field. In some cases, the adoption of the new shapes of courts and codes of laws caused the opposition of the monks, as that was the case in Iran after the constitutional revolution and with the Yemen after the introduction of called Othoman reforms Majalla in 1891 and 1904. However, the introduction of new legal systems on the European model, with hierarchical and centralized courts met only few oppositions.

Nathan Brown stresses that the lack of elements on the application of the charia before the reforms of the legal systems does not make it possible to know to which point the charia was applied in the Moslem companies before.

The result of these reforms was the reduction of the direction of the word charia to the law. The degree of prevalence of the charia is evaluated by the degree of conformity of the law in place to the charia.

During years 1930 appear the first criticisms of the legal and legal systems on the European model: certain Egyptian thinkers said that the French law was culturally inappropriate in Egypt and that larger efforts were to be made to integrate standards based on the charia. Criticism, at the beginning moderated, is taken again by an ideologist of the Muslim brothers, 'Abd Al-Qadir 'Awda, which declares that the Moslems must not only be unaware of but fight the contrary laws with the charia.

In the years 1960 and 1970, the calls to the application of the charia become the center of the islamist claims of movements of any origines. The charia, which is not regarded any more as a whole of practices and institutions but a whole of codified laws, even became the indicator by which one can consider character Islamic of a company or a political system. On their side, the islamist ones, consolidated by the change of direction of the charia term and its greater coding, insisted on the fact that the charia was to have a codified form, and they position the charia as being higher than all the other codes of laws (constitution, normal legislation and administrative payments). The example of a constitution based on the charia is besides that of the Iran since the revolution of 1979.

The new significance of the charia as a code of laws thus became much more difficult to circumscribe, and the governments of many Moslem countries (as Egypt) were committed checking their legal codes in order to make sure that they are in conformity with the charia. These categories correspond to five values morals called Al-akhām Al-khamsa :

what is prescribed, indicated under the term of make-up (also called obligatory - wajib , muhattam - or required - lazim )
what is recommended, indicated under the term of mandub (also called preferable - mustahabb - méritoire - fadila - or desirable - marghub fih )
what is indifferent ( mubâh ),
what is blâmable indicated by the term makrûh
what prohibited is indicated by the term Haram

The prescribed actions are divided themselves into personal obligations - make-up Al 'ayn - which are necessary on behalf of each Moslem (prayer and alms for example) and the Community obligations - make-up Al-kifaya - which, if they are made by certain Moslems, are not necessary others (funerary prayers for example).

The distinction which is made between the five categories makes on their execution or their nonexecution, which is rewarded, not rewarded, punished or not punished. The table below details the various categories and their statute compared to the charia.

The Hukm is characterized like a legal judgment coming in complement from the conditions installation by a Madhhab and the associated doctrines.

When a lawyer produces a rule for an act or a typical location, the term hukm is used, more particularly in the form of hukm Allāh (“rule of God”). The term hukm is in fact employed to describe two dimensions: the metaphysical judgment and the empirical judgment. The hukm is a standard transcendantale whose empirical hukm , given by the lawyer, is the temporal demonstration. Moosa also underlines that the process of discovered charia and Islamic law is the consequence of a complex interaction between the man and the divine one:

the sexual relationships except marriage, called zina
distorts it charge of this infringement, called
the consumption of vin*, called
the flight, called
the banditism, called
the apostasy, called
the rebellion, called

(let us *rappelons that in the Arab language, the " vin" wants to say all that enivre. The consumption of any kind of alcohol and drugs thus returns in account in this sorrow)

The Moslems regard this category of crime as crimes against the Law of God. The sorrows planned for the crimes of the type Hadd are fixed because they were fixed by God and are explicitly in Coran.

Taʿzīr

Sorrows and infringements of the category of the Taʿzīr (: correction ) is discrétionnaires sorrows (determined by the public authorities and pronounced by the judge) which, by definition, vary according to the circumstances, they are not fixed in time nor in space. They vary according to the gravity of the crime and the provisions of the criminal. The sanctions go from the sermon or the verbal admonition to the capital punishment for attack to the divine or individual rights, blamed of the social peace or the safety of the individuals. In country of Islam, the criminal law rising from the charia is applicable to all, whatever the religion of the author of the infringement. Only the school Hanafite restricts its application to the Moslems and the Gens of the book or the Dhimmi S, but not the abroads of passage. The latter cannot be condemned for certain infringements against the private individuals or the divine right and from forty to eighty blows for alcohol consumption.

The amputation and crucifixion

The banditism or armed robbery is punished by the simultaneous amputation of the right hand and the left foot. If the flight is accompanied by murder, it is punished by decapitation. If the murder is cumulated with the flight, the author of the crimes is crucifié before being carried out. The amputation is also envisaged in the event of exercise of retaliation in the event of attack to the physical integrity of others. The crucifixion sanctions the cases of banditism accompanied by murder and from vol. the torture victim can receive food and drinks and must be detached at the end of the third day.

Sorrows of the correction

The sorrows of the correction are left with the appreciation of the judge. He can thus choose most suitable among those quoted above and others according to the circumstances, of the gravity of the infringement and the personality of the author. The contents and the organization of the teaching of the charia are inseparable from the relation between the texts and the comments constituting the charia. Mitchell and other academics consider that the contents even charia and its teaching cannot be dissociated. This principle was largely followed, as the example of the Caliph Omar shows it who drew aside the amputation of the hand of the robbers in period of food shortage and as regards retaliation (the victim or the heirs does not carry out any more the sorrow with their hand). Jacques el-Hakim also thinks that the majority of the body sorrows was not compatible any more with the manners or justified by repression starting from the reforms of the 19th century. The body sorrows are practiced more only in rare countries; and in other countries where they are reintroduced, they meet a strong opposition.

Nullity

Certain people consider that certain provisions of the charia are null and void because of evolution of the company; it would thus become useless to preserve them. Such is the case of the questions concerning the Esclavage.

According to Leila Babès, cultural practices, i.e. contingent, more or less consciously in the Moslem Droit succeed to a degradation of the ethical message was built-in of the Révélation in Religion of the positive Droit. This one tightens to dogmatize and to wrongly assert a Statut of Orthodoxie whereas the essence of the charia aims at a Orthopraxie.

In its book, Loi of Allah, Loi of the men , it considers that the point of arrival is a coercive system omitting the fundamental principle legal in Islam that all that is not expressly defended is allowed .

Compatibility between Moslem right and European right

The European Court of the human rights, in a stop of July 31st, 2001 Refah Partisi C. Turkey, made to observe the incompatibility of the rules of the charia with the democratic regime .
Quotation extracted from this document

But, for the Constitutional court, the charia would be the antithesis of the democracy, insofar as it is based on dogmatic values and is the opposite of the supremacy of the reason, of the designs of freedom, independence, or the ideal of humanity developed in the light of science.

In a stop of June 29th, 2004, Leyla Sahin C. Turkey, it estimates that the port of the Islamic veil is not easily compatible with the equality man-woman .

Implications in France

Appendices

Examples of practices regulated in the charia

The rules stated hereafter are drawn from various schools of thought. They are drawn from interpretation of the Moslem texts crowned (Coran, Hadith, etc) by Imams. Some of these rules can be applied in countries having a legislation based on the charia.

; Adultery Adultery in Islam for the woman is the fact of having sexual relationships with a person other than her spouse.

The Adultère in Islam for the man is the fact of having sexual relationships with a person other than her (her) joint (S) or slave (S). The punishment is lapidation with died in public if four witnesses can testify to his act or if there is consent.

In its Hadith, Mahomet prescribed to lapidate the criminal with respect, one never should insult it or carry reached to its dignity while it is lapidated.

; Fornication The fornication in Islam indicates the fact that there is a sexual relation between two single people of opposed sex, the punishment is scourging in public if four witnesses can testify to his act or if there is consent.

Nevertheless, it is licit for the male single person to maintain the sexual relationships with its or its slave (S) woman (S) (legal concubines).

The woman does not have the right to have sexual relationships with her slaves.

; To have homosexual relations The men who have homosexual relations (sodomy) are carried out, in the same way for the men sodomizing a woman, the women are not it (because it there not of sexual relationship strictly speaking, but of the contacts) but must be punished.

; Apostasy That which gives up its Moslem faith is punished of died according to all the schools of jurisprudence.

; Blasphemy That which blasphemy can be punishable of dead according to certain circumstances.

; Flight

burgling must be punished by the amputation of the hand, but not the violent robbery or the shoplifting.
Aicha reports that Mahomet would have said that the flight of any object being worth less than 1/4 of dinar should not be punished. Also, if one steals a close relation, the sorrow is not carried out
Peine: to the first flight, one cuts the left hand, with the second the left foot, the third the right hand and finally the right foot. If the criminal is always able to fly and that it flies, it is carried out.

; Divorce

The husband can divorce his wife when he wants. If the marriage were consumed, its ex-joint does not have to leave the marital home during three months. The husband can reconsider his decision during these three months by having sexual relationships with his ex-joint. If the woman is pregnant, thejoint one should not leave the marital home until it is confined. With the expiry of this time, the couple is officially separate.

The woman who wishes that her husband divorces it ( Khul ) must have the approval of her husband, if approval there is, the woman must refund the dowry paid by the husband.

Under certain conditions (beaten women, husband not practitioner or large sinning etc), the woman can ask the judge to declare the divorce between the couple.

If a man divorces his wife three times, it cannot marry any more with her except if she remarie with another man then divorce.

; Marriage

It does not have there a lawful age for the marriage. But the religious responsibility for a child is effective for the girls with the first rules, and the first ejaculation for the boys.
the Moslem man who did not make a fornication during his life or being repented can about it marry only with Moslem women not having never made fornication or about it being repented or of the women resulting from the Gens from the book.
the Moslem fornicator can marry only with Moslem fornicators or women polytheists. If he Marie with a pure woman and that an Islamic authority discovers it, he will be condemned for fornication since its marriage is null.
the Moslem woman who did not make a fornication during her life or being repented can about it marry only with Moslem men not having never made fornication or about it being repented.
the Moslem fornicator can marry only with Moslem fornicators or men polytheists.
the Moslem woman cannot marry without the agreement of its tutor; the man does not have a tutor.
the tutor can marry a virgin without him to require her opinion, it can nevertheless be opposed to the marriage then the marriage will not take place.
the tutor cannot marry divorced or the widow except if she asks to marry.
For the men, the number of legitimate wives is limited to 4. The number of slaves, considered as legal concubines, with whom the man has sexual relations is unlimited.
For the women, the number of husband is limited to 1.

; War

It is licit to make the war with the not-Moslems who do not want to pay the Jizya.
It is licit to make the war with the Moslems who do not apply the charia.
It is illicit to kill the women, the children and nonthe combatants, however they can be controlled in slavery according to rules which aim in particular to the respect of those.
the Moslems immigrant in nonMoslem countries are bound by a pact (moral) of non-aggression towards the inhabitants of the country.
So that a war is licit, it is necessary and the authorization and Moslem Gouverneur, and that of the Oulémas. Very implemented of the hostility without these two authorizations is regarded as illicit.

; Alcohol

It is interdict for a Moslem of drinking, transporting, to sell, produce or serve as alcohol.
That which drinks alcohol is whipped.

; Slavery

slavery is licit, if it consists in taking prisoners not-Moslems at the time of a war between Moslems and not-Moslems (the women and the children can be concerned). In the event of war between Moslems, to take prisoners and to make slaves of them are illicit. The reason authorizing to take slaves is the fact that they are to kafir (not Moslem) and seek to make the war against Islam. This interpretation is given by a Saoudi monk, Sheykh Muhammad Saleh Al-Munajjid, which also adds that slavery is rare nowadays (since wars between Moslems and not-Moslems date from the beginnings of Islam) and that the majority of the Moslem countries signed a protocol prohibiting slavery under the aegis of the United Nations in 1953.

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