The Constitution of Medina & Sharia

Society Religion & Philosophy
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Re: The Constitution of Medina & Sharia

^ Peace Shamraz Khan

In practice democracy in modern times is merely appointment of leadership - the laws however, in democratic countries are not democratically decided - since they are imposed on us without us choosing or voting on them. hareem01 has given a concise and perfectly practical definition which clarifies the difference ... one need not be democratic and not compliant with Shari'ah. They are not exclusive.

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Re: The Constitution of Medina & Sharia

^ and Islamic way of choosing leadership and democratic process of choosing leadership are not same?

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Re: The Constitution of Medina & Sharia

Peace ajazali

Freeing this world from consumerism ... First of all stop advertising ... Second - infiltrate the ethos of charity and family centrism in to the educational framework across the world. Reduce employment and give people the means to have their own businesses or trades - so devolve the biggest corporate companies. Eliminate the concept of limited or no liability companies. Organisations are not subject to error - people are ...

Appoint the highest ranks in society to the teaching class ... or make it mandatory that professionals should allocate time to teach.

Start to deal in real valuables rather than artificial value

Bolster religious institutions to encourage people to struggle and put effort in to helping society. When the perception of "greatness" shifts from "wealth" to who can be most "philanthropic" then the society is ready to appoint its leader rightly.

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Re: The Constitution of Medina & Sharia

ok, let say we want the system in pakistan where leadership will be given to those who really deserve it. Which groups should strugle for it and how?

the suggestions you give are only applicable when leadership is already religious, So if leadership is not from religious scholars then how one should acheive that?

or you say that, if society does not like religiousity then relligious groups should sit back and watch?
Actually I want to know what role religious groups should play when they are not in power?

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Re: The Constitution of Medina & Sharia

Peace ajazali

Religious people should sit with other religious people and learn from scholars. The religious groups are to be focusing as teaching organisations. Since, the way to turn minds and hearts is through education and a lot of patience. The people of today need to understand the importance of taking a Shaykh who can guide them through exercises to improve their characters.

Power has never been a requisite - Islamically speaking ... We need to simply be Muslim and make sure our children are Muslim. Teach ourselves and families how to be charitable, friendly, humble and simple. This is the extent of most of our influence and the limit of any reasonable impression we make to society. If there is oppression, any unIslamic behaviour we need to be vocal and remind government of that, if the government take the oppression to a level where it becomes like what it had become like in Syria then the people should wait for the Ulema to declare Jihad and rally for the government to be disbanded. If it resists then the people need to defend themselves without overstepping the rules of engagement. When and if the situation leads to toppling the government then the people restore order by giving up their weapons to people in charge. They return to normal life or join the army.

For Muslims winning or losing a war is not important ... Dying in a state of responsible duty or living to uphold the principles and defending the realm from injustice is what is important. Those who get killed are martyrs and those who survive are honoured but have to fulfill the rest of the bargain ... that is to remove themselves from power so it goes in to the hands of those who deserve it ... not those who won it in a fight.

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Re: The Constitution of Medina & Sharia

It seems that most of European countries already have a shariah law implemented there.

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Re: The Constitution of Medina & Sharia

the extent you mentioned is no more impressing people.
and why you think that opression is the only other option?
and do you think that it could come true without gaining power?
gaining power does not imply the enforcement of Islamic laws without will of people, afterward.

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Re: The Constitution of Medina & Sharia

Peace ajazali

That is true ... but we must stay within our limits
No, oppression is when intervention is required - otherwise we do not stand up against established leadership
Yes that is also true that we do not ensure Islamic laws are implemented - merely to remove the injustice and oppression. That is why weapons are given back ... to the government.

The religious step down and carry on teaching again ... The solution is not desire an immediate solution, but to do what is within our permissible remit to do. Every country's law system in the world has some aspect of Shari'ah in it.

Gradually when society is ready they will appoint a leader who will uphold the values of Islam ... until that point let them appoint leaders who represent them.

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Re: The Constitution of Medina & Sharia

The concept of Shariah came during the Prophet's (pbuh) own lifetime. He gave laid out the laws and principles upon which the state should be run.

For example, during his life, he revealed the following verse of the Quran (5:38). "[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah . And Allah is Exalted in Might and Wise."

And similarly, from the hadith (number 765 from Bukhari), "Narrated 'Uqba bin Al-Harith: An-Nu'man or the son of An-Nu'man was brought to the Prophet on a charge of drunkenness. So the Prophet ordered all the men present in the house, to beat him. So all of them beat him, and I was also one of them who beat him with shoes. "

It is incorrect to say that Islam favours democracy over Shariah. The Quran itself states (4:59) "O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result."

This means that in all matters, if Allah or the Prophet (pbuh) provided an instruction, it should be obeyed. This is the source of Shariah - the set of laws and principle stated by the Prophet during his life, which all Muslim societies after his death are obligated to follow.

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The idea of Khalifah is mentioned in the Quran as well in verse 2:30 in a broader concept. The idea of the institution of Khalifah as a succession to the institution of Prophethood also came in several hadiths, such as this one record by Al-Tirmidhi (No. 1441)

"An-Nu'man told on Hudhayfah's authority that Allah's Messenger (peace be upon him) said, "Prophecy will remain among you as long as Allah wishes it to remain, then Allah Most High will remove it. Then there will be a caliphate according to the manner of prophecy as long as Allah wishes it to remain, then Allah Most High will remove it. Then there will be a distressful kingdom which will remain as long as Allah wishes it to remain, then Allah Most High will remove it. Then there will be a proud kingdom which will remain as long as Allah wishes it to remain, then Allah Most High will remove it. Then there will be a caliphate according to the manner of prophecy." Then he stopped. Habib said: "When Umar ibn AbdulAziz became caliph I wrote to him, mentioning this tradition to him and saying, "I hope you will be the commander of the faithful after the distressful and the proud kingdoms." It pleased and charmed him, i.e. Umar ibn AbdulAziz."

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The majority of modern day Islamists (the Maududi and Hassan Al Banna descended groups) have generally aligned on the idea of Islamic democracy, where people elect leaders to interpret and apply Shariah, and to legislate on the issues where there is no Shariah ruling applicable.

For example, most of Pakistan's Islamist political parties do not press for any further constitutional changes to Pakistan because they agree that Pakistani already has a constitution that is in line with Shariah requirements.

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Re: The Constitution of Medina & Sharia

Considering the extent to which society has been damaged the recovery is highly unlikely with approach you mentioned IMO. This approach you mentioned alone would not work without gaining power as the other side would not even let you impress the people, not to speak of opression or breaking the limits or immediate solution.

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Re: The Constitution of Medina & Sharia

Then as long as there is no oppression ... You live with it as we are today. And it happened in the time of jahiliyya ... It can happen again.

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Re: The Constitution of Medina & Sharia

The Origins of Islamic Law - Constitutional Rights Foundation

The Origins of Islamic Law
Islamic law represents one of the world’s great legal systems. Like Judaic law, which influenced western legal systems, Islamic law originated as an important part of the religion.

Sharia, an Arabic word meaning “the right path,” refers to traditional Islamic law. The Sharia comes from the Koran, the sacred book of Islam, which Muslims consider the actual word of God. The Sharia also stems from the Prophet Muhammad’s teachings and interpretations of those teachings by certain Muslim legal scholars. Muslims believe that Allah (God) revealed his true will to Muhammad, who then passed on Allah’s commands to humans in the Koran.

Since the Sharia originated with Allah, Muslims consider it sacred. Between the seventh century when Muhammad died and the 10th century, many Islamic legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire. The classic Sharia of the 10th century represented an important part of Islam’s golden age. From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues. In the modern era, the influences of Western colonialism generated efforts to codify it.
Development of the Sharia

Before Islam, the nomadic tribes inhabiting the Arabian peninsula worshiped idols. These tribes frequently fought with one another. Each tribe had its own customs governing marriage, hospitality, and revenge. Crimes against persons were answered with personal retribution or were sometimes resolved by an arbitrator. Muhammad introduced a new religion into this chaotic Arab world. Islam affirmed only one true God. It demanded that believers obey God’s will and laws.

The Koran sets down basic standards of human conduct, but does not provide a detailed law code. Only a few verses deal with legal matters. During his lifetime, Muhammad helped clarify the law by interpreting provisions in the Koran and acting as a judge in legal cases. Thus, Islamic law, the Sharia, became an integral part of the Muslim religion.

Following Muhammad’s death in A.D. 632, companions of Muhammad ruled Arabia for about 30 years. These political-religious rulers, called caliphs, continued to develop Islamic law with their own pronouncements and decisions. The first caliphs also conquered territories outside Arabia including Iraq, Syria, Palestine, Persia, and Egypt. As a result, elements of Jewish, Greek, Roman, Persian, and Christian church law also influenced the development of the Sharia.

Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law.

Following a period of revolts and civil war, the Umayyads were overthrown in 750 and replaced by the Abbasid dynasty. During the 500-year rule of the Abbasids, the Sharia reached its full development.

Under their absolute rule, the Abbasids transferred substantial areas of criminal law from the kadis to the government. The kadis continued to handle cases involving religious, family, property, and commercial law.

The Abbasids encouraged legal scholars to debate the Sharia vigorously. One group held that only the divinely inspired Koran and teachings of the Prophet Muhammad should make up the Sharia. A rival group, however, argued that the Sharia should also include the reasoned opinions of qualified legal scholars. Different legal systems began to develop in different provinces.

In an attempt to reconcile the rival groups, a brilliant legal scholar named Shafii systematized and developed what were called the “roots of the law.” Shafii argued that in solving a legal question, the kadi or government judge should first consult the Koran. If the answer were not clear there, the judge should refer to the authentic sayings and decisions of Muhammad. If the answer continued to elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from “the precedent nearest in resemblance and most appropriate” to the case at hand.

Shafii provoked controversy. He constantly criticized what he called “people of reason” and “people of tradition.” While speaking in Egypt in 820, he was physically attacked by enraged opponents and died a few days later. Nevertheless, Shafii’s approach was later widely adopted throughout the Islamic world.

By around the year 900, the classic Sharia had taken shape. Islamic specialists in the law assembled handbooks for judges to use in making their decisions.

The classic Sharia was not a code of laws, but a body of religious and legal scholarship that continued to develop for the next 1,000 years. The following sections illustrate some basic features of Islamic law as it was traditionally applied.
Family Law

Cases involving violations of some religious duties, lawsuits over property and business disputes, and family law all came before the kadis. Most of these cases would be considered civil law matters in Western courts today.

Family law always made up an important part of the Sharia. Below are some features of family law in the classic Sharia that would guide the kadi in making his decisions.

Usually, an individual became an adult at puberty.
A man could marry up to four wives at once.
A wife could refuse to accompany her husband on journeys.
The support of an abandoned infant was a public responsibility.
A wife had the right to food, clothing, housing, and a marriage gift from her husband.
When the owner of a female slave acknowledged her child as his own, the child became free. The child's mother became free when the owner died.
In an inheritance, a brother took twice the amount as his sister. (The brother also had financial responsibility for his sister.)
A husband could dissolve a marriage by repudiating his wife three times.
A wife could return her dowry to her husband for a divorce. She could also get a decree from a kadi ending the marriage if her husband mistreated, deserted, or failed to support her.
After a divorce, the mother usually had the right of custody of her young children.

Criminal Law

The classic Sharia identified the most serious crimes as those mentioned in the Koran. These were considered sins against Allah and carried mandatory punishments. Some of these crimes and punishments were:

adultery: death by stoning.
highway robbery: execution; crucifixion; exile; imprisonment; or right hand and left foot cut off.
theft: right hand cut off (second offense: left foot cut off; imprisonment for further offenses).
slander: 80 lashes
drinking wine or any other intoxicant: 80 lashes.

Officials of the caliph carried out the penalties for these crimes.

Crimes against the person included murder and bodily injury. In these cases, the victim or his male next of kin had the “right of retaliation” where this was possible. This meant, for example, that the male next of kin of a murder victim could execute the murderer after his trial (usually by cutting off his head with a sword). If someone lost the sight of an eye in an attack, he could retaliate by putting a red-hot needle into the eye of his attacker who had been found guilty by the law. But a rule of exactitude required that a retaliator must give the same amount of damage he received. If, even by accident, he injured the person too much, he had broken the law and was subject to punishment. The rule of exactitude discouraged retaliation. Usually, the injured person or his kinsman would agree to accept money or something of value (“blood money”) instead of retaliating.

In a third category of less serious offenses such as gambling and bribery, the judge used his discretion in deciding on a penalty. Punishments would often require the criminal to pay a reparation to the victim, receive a certain number of lashes, or be locked up.
Criminal Procedure

The victim of a criminal act or his kinsman (“the avenger of the blood”) was personally responsible for presenting a claim against the accused criminal before the court. The case then went on much like a private lawsuit. No government prosecutor participated although certain officials brought some cases to court.

The classic Sharia provided for due process of law. This included notice of the claim made by the injured person, the right to remain silent, and a presumption of innocence in a fair and public trial before an impartial judge. There were no juries. Both parties in the case had the right to have a lawyer present, but the individual bringing the claim and the defendant usually presented their own cases.

At trial, the judge questioned the defendant about the claim made against him. If the defendant denied the claim, the judge then asked the accuser, who had the burden of proof, to present his evidence. Evidence almost always took the form of the direct testimony of two male witnesses of good character (four in adultery cases). Circumstantial evidence and documents were usually inadmissible. Female witnesses were not allowed except in cases where they held special knowledge, such as childbirth. In such cases, two female witnesses were needed for every male witness. After the accuser finished with his witnesses, the defendant could present his own.

If the accuser could not produce witnesses, he could demand that the defendant take an oath before Allah that he was innocent. “Your evidence or his oath,” the Prophet Muhammad taught. If the defendant swore he was innocent, the judge dismissed the case. If he refused to take the oath, the accuser won. The defendant could also confess to a crime, but this could only be done orally in open court.

In all criminal cases, the evidence had to be “conclusive” before a judge could reach a guilty verdict. An appellate system allowed persons to appeal verdicts to higher government officials and to the ruler himself.
Islamic Law Today

In the 19th century, many Muslim countries came under the control or influence of Western colonial powers. As a result, Western-style laws, courts, and punishments began to appear within the Sharia. Some countries like Turkey totally abandoned the Sharia and adopted new law codes based on European systems. Most Muslim countries put the government in charge of prosecuting and punishing criminal acts. In the area of family law, many countries prohibited polygamy and divorce by the husband’s repudiation of his wife.

Modern legislation along with Muslim legal scholars who are attempting to relate the will of Allah to the 20th century have reopened the door to interpreting the Sharia. This has happened even in highly traditional Saudi Arabia, where Islam began.

Since 1980, some countries with fundamentalist Islamic regimes like Iran have attempted to reverse the trend of westernization and return to the classic Sharia. But most Muslim legal scholars today believe that the Sharia can be adapted to modern conditions without abandoning the spirit of Islamic law or its religious foundations. Even in countries like Iran and Saudi Arabia, the Sharia is creatively adapted to new circumstances.
For Discussion and Writing

How did the Sharia develop differently than Western law systems like our own?
What differences do you see between the criminal law and court procedures of the classic Sharia and the criminal justice system in the United States today? What similarities are there?
Which features of the classic Sharia do you agree and disagree with the most? Why?

For Further Reading

'Awa, Muhammad Salim. Punishment in Islamic Law : A Comparative Study. Indianapolis: American Trust Publications, 1982.

Bassiouni, M. Cherif, ed. The Islamic Criminal Justice System. London: Oceana, 1982.

Hallaq, Wael B. Law and Legal Theory in Classical and Medieval Islam. Brookfield, Vt. : Variorum, 1995.

Khadduri, Majid, Law in the Middle East, edited by Majid Khadduri and Herbert J. Liebesny. Washington: Middle East Institute, 1955.
A C T I V I T Y
The Classic Sharia and Early Islamic Society

Laws can tell us much about a culture. They can inform us about the society’s government, economy, geography, family relations, religious beliefs, technology, and much more.

Listed below are seven statements concerning the classic Sharia of the 10th century. Form small groups. Assign each group one of the statements. Members of each group should:

(1) Examine their assigned statement and any other material relating to it in the article.

(2) Write down as many facts about early Islamic society as they can infer from the statement.

(3) Report the facts they have discovered to the rest of the class in order to develop a picture of early Islamic society.
Statements From the Classic Sharia

A Muslim could be tried and punished for not performing his religious duties.
A woman counted as one-half a man if called as a witness in a trial.
When the owner of a female slave acknowledged her child as his own, the child became free. The mother became free when her owner died.
The most serious crimes in the Sharia included adultery, highway robbery, theft, and drinking alcohol.
Islamic criminal courts exercised due process of law.
If witnesses were not produced, the defendant could be asked to take an oath before Allah that he was innocent.
Punishments included death by sword and stoning, mutilation, lashes, retaliation, "blood money," reparation, and imprisonment.
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Re: The Constitution of Medina & Sharia

so gaining power to have a comfortable/effective postion through available means, democracy for example is not an option at all for religious groups?

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Re: The Constitution of Medina & Sharia

We are not talking about few things in penal code, but complex structure of governing nations with diversity and different beliefs. Btw, as shown (in previous article) Sharia as a governing structure was developed & codified long after death of Prophet SAW, and still there is no actual agreement on what Sharia really is.

If anything, if you look at early days of Islam, both during the Prophet's life time and Khulafa-e-Rashideen's time, governing was more less based on consent, and it's more comparable to the system of democracy, than various Sharia based governing systems established by subsequent Muslims rulers.

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Re: The Constitution of Medina & Sharia

Well, not necessarily. It happens in direct democracies, and I have personally voted on many issues based referendums on building local roads, changing zooming laws, etc. So, what you're saying is not 100% accurate.

[quote]
...one need not be democratic and not compliant with Shari'ah. They are not exclusive.
[/QUOTE]

So, what you're saying is that Sharia supports the concept of democracy or vice versa?

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Re: The Constitution of Medina & Sharia

Of course. During the life of the Prophet (pbuh), if you had a question about what the Islamic ruling was, you would just go and ask him. After he died, if you had another question, you would just go and ask one of his close friends who probably heard someone else ask him a related question.

In the centuries after the Prophet (pbuh) died, Muslim society became urbanized and developed to an unprecedented extent. Without the presence of the Prophet (pbuh) or his companions, a whole body of rulings had to be deduced from the primary sources.

There is no actual agreement on what Shariah is because the greatest scholars of Islam always argued that Shariah should not be codified, as a safeguard against corruption. As long as Muslims would always be able to constantly debate what exactly was Shariah, there would be no risk of the truth being forever lost.

I believe that it was Ahmad bin Hanbal who was invited by an Abbasid Khalif to determine a single set of rulings that would be Shariah, and he refused on these grounds.

Absolutely. And most modern Islamists would argue that the subsequent systems abused Shariah to derive legimitimacy. Maududi's writings are full of the importance of rule based on consent and consensus.

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Re: The Constitution of Medina & Sharia

I want to share some knowledge about Islam and get information for any purpose. I seen the video after that I remember the religion were we spend our life and follow the role of Islam. So I like to appreciate to Hareem01 who tell us about Khaleefas and other Muslim leaders. Like as
· Abu Bakr
· Umar Ibn Al-Khattab
· Uthman Ibn Affan
· Ali Ibn Abi Talib
These are Khaleefas who are followers of the prophets. He also we get information why we chose the Imam and Sultan. I hope you are such a nice and informative person and I want to say something to the other peoples if someone has knowledge so you must share with all the members.