What Is Sharia And How Is It Applied?

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. Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers.

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 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.

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.

In England, the Muslim Arbitration Tribunal makes use of Sharia family law to settle disputes, though this limited adoption of Sharia is controversial. 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.

The Mughal emperor Aurangzeb (r. ) 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. Of equal concern is the lack of respect for due process which has characterized many trials in Shari’a courts. The main failings documented by Human Rights Watch include defendants’ lack of access to legal representation; the failure of judges to inform defendants of their rights and grant them these rights; the courts’ acceptance of statements extracted under torture; and the inadequate training of Shari’a court judges which has resulted in these and other abuses.

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