Islamic Law

All of these issues have recently been thrown into much sharper relief by events in the Middle East in the so-called “Arab Spring” since 2010. If her husband does not agree to pronounce talaq, she is left to find someone with authority to hear her case and hopefully to grant her an Islamic divorce. Islamic law has always provided divorce options for wives, but each requires a third party – usually a judge or a body of legal scholars – to make the determination. In Muslim countries, the role is typically fulfilled by Sharia courts, but in Australia there is no judicial equivalent.

At the same time, one can notice that some Arab and Muslim States have taken steps that have resulted in a certain rapprochement of Islamic and secular principles. The recently enacted constitutions of States such as Iraq and Afghanistan, countries that have in recent history come under the influence of Western law-makers and policies, contain provisions which, on the one hand, declare the Shari’ah to be the highest source of the law of the land, while at the same time subscribing to the ideals of democracy. Many Muslim countries to this day have laws and justice systems based to a large extent on post-colonial and in fact secularised models left behind by the colonial powers and adopted by the former colonies.

Such globalisation-influenced processes are not uniform in the Islamic world, however, as alongside liberalisation in some countries, radicalisation and more literal interpretation of Islam occurs in others, who feel threatened by Western interference. There are also prevalent cultural distortions between various Islamic countries that may inhibit their ability to act uniformly, such as, for example, the controversial concept of temporary marriage.

Arab States are engaged in international relations which are in fact dominated by Western thinking. Many Muslims live in Western countries where they enjoy and actively exercise the rights and freedoms granted under their laws. Globalisation will result in greater interaction between societies and different spheres of law.

Since 2000, twelve states in northern Nigeria have added criminal law to the jurisdiction of Shari’a (Islamic law) courts.Shari’a has been in force for many years in northern Nigeria, where the majority of the population is Muslim, but until 2000, its scope was limited to personal status and civil law. The manner in which Shari’a has been applied to criminal law in Nigeria so far has raised a number of serious human rights concerns.It has also created much controversy in a country where religious divisions run deep, and where the federal constitution specifies that there is no state religion. Such disagreements are exacerbated by the differences in interpreting primary sources of law between the Shi’a and Sunni schools of thought.

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.

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