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The Impact of Incorporating Sharia Law into Contemporary Legal Systems on the Safeguarding of Human Rights in Muslim-Majority Nations.”

Abstract

This dissertation critically examines the incorporation of Sharia law into contemporary legal systems, focusing on its implications for safeguarding human rights in Muslim-majority nations. Islamic law, whose sources are the Qur’an and Hadith, called Sharia, shapes the lives of Muslim men and women, in the personal and in the whole of society. Yet it is frequently integrated into modern legal systems, and as a result, attracts a series of complex tensions, especially as regards its relationship with international human rights standards. The historical and theoretical dimensions of Sharia law are researched with their historical transformation and principal goals of which Maqasid al-Sharia (the objectives of Islamic law), which promote justice, welfare, and the safeguard of basic human dignity are emphasized.

In this study, we focus on a comparative examination of legislative frameworks, judicial practices, and case studies drawn from the selection of Muslim majority countries including Saudi Arabia, Pakistan, and Malaysia. In addition, these jurisdictions utilize Sharia law in various ways in eight different areas, including family law, criminal law and economic regulation. Through analysing and unpacking substantial court rulings, legislative policies and insights of jurisprudence, the dissertation examines the interplay between evolving global norms and traditional Islamic legal principles. This thesis identifies the challenges and the opportunities for harmonizing Sharia with contemporary human rights standards by giving specific attention to recent case law and academic scholarship.

The dissertation endeavors to shed light on possible ways in which Islamic jurisprudence can be reconciled with universal human rights frameworks. The analysis of this study is crucial and nuanced, a reading of potential ways in which Sharia law can be contextualized and reinterpreted for the modern legal setting whilst maintaining its core principles, and which can also be compatible with international standards. This dissertation adds to the ongoing scholarly and policy debates on the complex interplay between religion, law, and human rights in an increasingly interconnected world, and it does so through a broad range of perspectives.

Structural Methodology

The purpose of this work was to examine the integration of Sharia law into modern legal systems, its impact on various areas like family law, criminal law, economic law, and its relationship with international human rights. The study focused on how Sharia has evolved across different socio-political contexts and explored how legal systems in various countries (e.g., Pakistan, Saudi Arabia, Malaysia and other Muslim Majority Nations) incorporate Sharia principles while also grappling with contemporary legal and human rights challenges. In Chapter 1 we will look at the historical developments of Sharia law where in 1.1 we will loo at the origins (sources) of Sharia law and in 1.2 will discuss the objectives of the Sharia law as the guiding sourcefor the Musilm Ummah. In 1.3 we will discuss how Sharia law has evolved throughout Islamic history which will involve early interpretations to fast forward in this modern era. In Chapter 2 we will look how different modern Islamic Nations have incorporated Sharia into their legal frameworks differently from a strict perspective of Saudi Arabia to a much contemporary framework of Malaysia we will thoroughly examine particularly these three nations as a reference and will give out a comparative analysis. In the Chapter 3 we will look at the interplay of Sharia with Family law. In 3.1 we will discuss the Marriage and Divorce laws, while in 3.2 we will discuss about Gender Equality. In Chapter 4 we will discuss how the Sharia governs Criminal laws. In 4.1 we will talk about the Hudood offences and Qisas Laws and in 4.2 we will discuss how Muslim Majority countries face challenges implementing these strict criminal penalties in todays contemporary society with strict adherence to human rights. In Chapter 5 we will discuss how Sharia has been incorporated in todays modern Economic laws especially the Banking sector as Sharia explicitly prohibits Interest. In Chapter 6 we will discuss how Sharia can adhere to the Human Rights Norms in todays world and that this is possible. In Chapter 7 we will give a brief overview about our discussion and then we will evaluate how in the near future, the interplay between Sharia and Modern laws be implemented and what future directions must be taken to improve this gap.

Introduction

The incorporation of Sharia law into contemporary legal systems has been a subject of extensive and ongoing debate, particularly in Muslim-majority nations. Sharia, which is derived from the primary sources of Islam—the Qur’an and Hadith—provides a comprehensive legal, moral, and ethical framework that governs the lives of Muslims. It deals with all kinds of things: personal conduct and family relations, economic transactions and governance. Sharia is a system of social, political and legal thought which is as much about how to live a moral life and community, as a theological and legal framework. Nevertheless, such integration faces major difficulties in the light of the main characteristics of contemporary law systems, namely modern governance, and the global legal order which rests on the universally accepted human rights standards.

Sharia and the interpretation and application of for Sharia differ across various jurisdictions are subject to historical, cultural and political factors that magnify these challenges. For example, Muslim majority, countries such like Saudi Arabia completely adopts Sharia as the sole source of law, while others, including Pakistan and Malaysia combine Sharia with secular legal principles in a dual legal system. Blue first demonstrates this variation in the context of broader tension surrounding maintenance of traditional Islamic jurisprudence, and corresponding adherence to the changing norms of global human rights frameworks. Hotspots for problems tend to occur in the areas of gender equality, freedom of religion, criminal justice, and family law, in which certain interpretations of Sharia often seem to clash with convention, such as the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

This dissertation seeks to explore the intricate dynamics in assimilating Sharia law into today’s legal systems, to assess how it influences the protection of human rights in Muslim majority countries. Instead, it aims to critically evaluate how Sharia law is adapted and applied to various legal sovereignties, the mechanisms and interplay of convergence and divergence of the religious legal principles and contemporaneous legal standards. The study takes a comparative approach and uses case studies from selected Muslim majority countries like Saudi Arabia, Pakistan and Malaysia. The dissertation accomplishes this goal by analyzing legislative frameworks, judicial practices, and landmark court cases in order to bring light to the subtle ways in which the Sharia law interacts with modern legal principles and its implications for human rights.

Additionally, this research’ expands on the basics of Sharia including the Maqasid al-Sharia (objectives of Islamic law) as the protection of vital human interests – life, intellect, religion, property, and family. It investigates how these maxims can be based on extracting a nodal agreement between Sharia and international human rights norms. The dissertation also analyzes the work of religious scholars, jurists, and policymakers in flexing Sharia to suit contemporary situations and discusses contentious matters pertaining to the treatment of women, religious minorities, and criminal justice dealt under Islamic law.

The primary research question driving this study is: What is the effect of the wisdom of incorporating Sharia law into modern times legal systems in the human rights’ protection in Muslim majority countries? An attempt to answer this question is made through a multidisciplinary use of legal analysis, historical inquiry, and sociocultural perspective. In addition, the thesis examines the effect of global human rights discourse influencing the interpretation and application of Sharia in contemporary legal systems.

Overall, this dissertation attempts to participate in the ongoing scholarly and policy debate related to the implementation of Sharia law in modern legal systems by providing a balanced and nuanced analysis of the incorporation of Sharia law into such legal systems. The study aims to contribute to policymakers, legal practitioners, and scholars grappling at the juncture of Islamic jurisprudence and international human rights law by identifying core areas of conflict and ways for how these key conflicts can be harmonized.

Chapter 1: Historical and Theoretical Foundations of Sharia Law

1.1 Origins of Sharia Law

Sharia law, meaning “the clear path,” is an all-encompassing legal and ethical system derived from two principal sources: the Qur’an and the Hadith. The Holy book of Islam the Qur’an is a final version of God’s holy word, that was revealed to Prophet Muhammad (PBUH) over 23 years. It acts as a guide for all departments of moral conduct, legal principles and spiritual development. Although the Holy Qur’an does not constitute a legal text in the sense known today, some 500 verses refers to legal issues, such as family law, inheritance, economy and criminal justice. For example, Surah An-Nisa (4:Inheritance is dealt with at length (11-12) with detailed rules ensuring that (at least) a fair share of an item is kept behind by the deceased for his or her heirs, again in keeping with Qur’anic themes of fair play.

The Hadith comprised of sayings and actions of Prophet Muhammad (PBUH), add to the Qur’an by elaborating on principals through practical examples. For instance, while the Qur’an emphasizes the importance of regular prayers (Surah Al-Baqarah 2:The Hadith (110) explains the number of daily prayers, the times and timings, and the procedure. The scholars of Islam including Imam Bukhari and Imam Muslim carried out the job of compilation and authentication of Hadith, whose collection is undoubtedly being central to Islamic jurisprudence.

Their conjunction constitutes not only the basis of Sharia law, but also for individual and collective responsibilities. They offer a holistic frame work in achieving justice, getting social harmony and compliance to divine principles. Those sources still deserve to be consulted, for the reason that they can be still used as sources that can supply moral and legal direction in many situations. This being showed in Muslim majority societies, for example, Saudi Arabia, where Sharia is the base of organization and the world monetary scene in Malaysia where Islamic finance flourishes.

Sharia law’s origins establish its dual dependence on the divine revelation and prophets’ tradition creating a single legal and ethical system. The combination of broad principles together with precise directions makes Sharia as an enduring foundation for justice and equity in Muslim communities.

1.2 Principles and Objectives (Maqasid al-Sharia)

The concept of Maqasid al-Sharia, or the higher objectives of Islamic law, lies at the heart of Sharia’s moral and legal framework. Imam Al-Ghazali first established these objectives which later received further improvements through Ash-Shatibi. Maqasid works to protect human interests while ensuring prevention of all forms of harm and roots Sharia within the core principles of fairness and compassionate justice.

Maqasid al-Sharia emphasizes five key objectives: the preservation of faith (din), life (nafs), intellect (aql), progeny (nasl), and property (mal). A just and harmonious society cannot be established without each essential objective. For example, the preservation of life is a fundamental principle, reflected in the Qur’an’s prohibition of murder and emphasis on the sanctity of human life (Surah Al-Ma’idah 5:32). The protection of human intellect achieves safeguarding through rules which ban intoxicating substances because these substances disrupt normal thinking abilities. Preservation of property is encouraged by strict laws against theft and fraud and by detailed rules of inheritance to the end of equitable distribution of wealth.

Maqasid al-Sharia is relevant also in contemporary legal and ethical problems. For example, the 2014 Egyptian constitution mixes Maqasid principles with those of Islamic law to counterbalance with the principles of democratic governance. Likewise, the Islamic finance industry in Malaysia adopts Maqas a means to stimulate ethical investment and fair distribution of wealth. The examples show the continued relevance of Maqasid to solving contemporary issues in an Islamic framework.

Finally, principles and objectives of Maqasid al–Sharia establish Sharia’s orientation toward justice, welfare, and human dignity. Maqasid focuses more on universal values, from which are derived a method of reconciling Islamic law with today’s practical legal and ethical problems.

1.3 Evolution of Sharia Through Islamic History

Sharia law is an adaptive law whose evolution is proof of its resilience to many of the historical, cultural and socio political changes that have taken place over the centuries. For after Prophet Muhammad (PBUH) died in 632 CE, the challenges for recording, interpreting, and applying divine law to the Muslim community were large. These laws were both codified and interpreted, giving rise to the Islamic jurisprudence, fiqh, the human attempt at understanding and applying divine law in whatever ever changing social and political occurrences.

Sharia law was vitally shaped by the development in the early 8th and 9th centuries of Islamic jurisprudence. Each newly acceptable methodology of interpreting the Qur’an and the Hadith culminated to the four major Sunni schools of thought. Regionally and intellectually, these schools, Hanafi, Maliki, Shafi’i, and Hanbali, all provided different views.

MADARGHAR (1997) characterizes the Hanafi school, founded by Imam Abu Hanifa, as that which gave considerable primacy to reason and analogy (qiyas) and, consequently, was most capable of adapting to the diverse cultural contexts. The school’s flexibility meant its application could range from the Ottoman Empire which adopted the Hanafi school and included local customs and practices to govern such a large, and diverse, population.

Imam Malik ibn Anas founded the Maliki school and had the practices of the people of Medina as representation of the Prophet’s Sunnah. The emphasis on the amal (practice) of the people of Medina led to a legal system which strove to be based in the customs and manners of the community, with the example of the integration of Maliki jurisprudence in West Africa. In Sudan, for example, and in parts of Morocco, indigenous African practices were blended with Maliki principles.

Imam Al-Shafi’i’s school, the Shafi’i, put the Qur’an and Hadith as their main source and limited the use of analogy and consensus (ijma) to help settle cases. The more structured sources of Sharia of this school allowed it to confront legal challenges more standardly.

Imam Ahmad ibn Hanbal claimed to found Hanbali school which was the most conservative of the four schools and was the strict follower of Qur’an, Hadith and consensus the same could not be said for the use of analogical reasoning unless absolutely necessary. Despite its rigid approach to textual sources, and so its lack of flexibility to new circumstances, it was very influential in more conservative communities.

Then, the glory of the Ottoman Empire which is a good example of Sharia adjusting itself in a pluralistic society. Whilst the main school followed by the Ottoman state was Hanafi, Islamic law was combined with the local custom, administrative system and Ottoman state law (Kanun). This dual system made it possible to administer justice in a vast empire so heterogeneous as to ethnic, religious, and legal communities. Thus, the Ottoman legal system ensured not only the application of Sharia, but also that it was able to interpenetrate secular institutional structures, thereby regulating those connections between all the empires diverse population.

In a parallel event, in West Africa the application of Maliki jurisprudence on indigenous practices provides a rich case study in the malleability of Sharia. Many Muslim majority states in the region, like Nigeria or Senegal, adopted the Maliki school of thought along with customary law. The first reason for fusing these systems centered on a common need for governing multi ethnic societies, which needed to accommodate what Sharia presented alongside the inclusion of traditional African legal systems that were compatible with local customs in multi ethnic territories.

Sharia has been changed greatly in modern era, its changes being due to colonialism, establishment of nation states and emergence of legal reform movement. Sharia has been codified to satisfy modern governance structures within Muslim majority countries, and many of them have worked to codify Sharia into their legal systems within a framework which meets contemporary requirements.

For example, Sharia has been integrated into Egypt’s national legal system, and can be seen in family law there. The vast majority of Egyptians are governed by Egypt’s Personal Status Law, which was passed in 1955 and based on Islamic principles, on matters of marriage, divorce, inheritance and child custody. However, the Egyptian legal system does also contain secular laws in criminal and commercial matters and accordingly creates a legal system which operates on Sharia principles for matters personal but which do not extend to all areas of public law.

The case of Safia Bibi v. Another illustrative example of Sharia’s moving interaction with modern legal systems is State in Pakistan. The case concerned a woman charged with committing adultery under Hudood Ordinances of 1979 that reintroduced Sharia based criminal laws into Pakistan. The Hudood Ordinances that mandated a harsh and inhumane punishment of stoning and amputation for crimes had generated very hot debate in legal circles as to their conformity with Pakistani constitution, international human right and procedural fairness. Because of the Safia Bibi case, there were especially large-scale questions regarding proper application of punishments in modern judicial systems.

The reintegration of Sharia law into the Nigerian legal system has been contentious in northern states in the early 2000s after the adoption of Sharia criminal law in that country. Perhaps the most famous of these was Amina Lawal, who was sentenced to be stoned to death for adultery under Sharia law where again she was on trial again under the Nigerian constitution (NCSW 2006). Nigeria’s legal system, based on both common and customary law, and on Sharia law in northern states, has been struggling to reconcile religious laws with constitutional guarantees made to Nigerians. The case of Amina Lawal, who was later acquitted on appeal, points up the difficulties of enforcing Sharia in pluralistic polities in which several legal systems exist side by side.

Sharia law, through the historical mirror of its own endured evolution, remains resilient and adaptable fortified in a wide spectrum of historic, cultural, and socio – political frameworks. Sharia has been at the heart of Islamic governance ever since the Sunni schools were established and fiqh developed, and it has grown to face contemporary legal challenges. The examples from Egypt, Pakistan, Nigeria, and other Muslim countries have great tension in the negotiation between religious principles and modern laws.

The continuing quest of societies to handle the interplay of religious legislation, human rights, and constitutional authority implies Sharia law will probably continue being a subject of lawful and educational scrutiny. The continuing adaptability of Sharia shows its continued vitality as a religious system of law, and as an element of contemporary legal systems which seek to combine traditional values with modern governance.

Chapter 2: Sharia in Modern Legal Systems

2.1 Integration in Legislative Frameworks

There is a wide variation in the extent to which Sharia has been integrated into modern legal systems across the Muslim world, a reflection of the divergent ways with which different Muslim majority nations have accommodated Sharia in the context of formal laws, regulations and courts.

Saudi Arabia is the most explicit and comprehensive application of Sharia law in present day world. As the birthplace of Islam, Saudi Arabia has structured its entire legal system around Sharia principles. The kingdom’s constitution is essentially the Qur’an and the Hadith, and all legislative and judicial processes are grounded in Islamic law. The Saudi legal system places heavy reliance on the Hanbali school of thought, which adheres strictly to the Qur’an, Hadith, and consensus (ijma), without significant recourse to legal analogy (qiyas). Saudi courts, including those that address criminal law, family law, and commercial disputes, operate without a formal codified legal code. Sharia law governs areas such as marriage, divorce, inheritance, and penal law, including corporal punishments such as flogging and amputation. For instance, in the Qutb v. Saudi Arabia case (2010), a defendant was sentenced to a corporal punishment for theft in line with Saudi penal law, which is rooted in the application of Sharia principles of retribution (qisas).

During the implementation of Sharia law in Pakistan, these laws have been put selectively into the framework of the national laws. In its effort to integrate Islamic legal principles into the remainder of its otherwise secular legal system, Pakistan tried to incorporate Islamic law criminal law doctrines into its system after the enactment of Hudood Ordinances in 1979, which reinstituted some aspects of Sharia criminal law. The existing Hudood Ordinances, which covered crimes of theft, adultery and consumption of alcohol, and referred to their respective hudud (‘fixed’) punishments, including amputation for theft and stoning for adultery, were repealed. While these laws have been contested and selectively implemented judicially, they pose a danger not only to the fundamental right to vote, but also to the emerging right of all citizens to hold other public offices. The case of Zafar Ali Shah v. For instance, Pakistan (2000) challenged the constitutionality of these ordinances. In addition to most Hudood laws not being Sharia law, the Supreme Court ruled that the interpretation of Sharia law in Hudood laws would have to conform with constitutional fundamental rights protecting due process and fairness. Thus, in the years that followed it became possible to see experiments to reconcile the principles of Sharia with constitutional guarantees, and Islamabad has repeatedly found itself facing a complicated legal framework that combines Islamic principle with demands of modern constitutionalism.

Other than that, Malaysia’s model is based on dual legal system which consists of both the Sharia law and civil law. The Personal and Family Law of Muslims in Malaysia is governed mainly by Sharia, and the Malaysian legal system for Muslims and non Muslims are distinct. Included in it are things like marriage, divorce and inheritance. Matters pertaining to Muslim citizens are given to the Sharia courts while criminal law, commercial law etc jurisdiction matters pertaining to Muslims and non-Muslims are given to the civil courts. Kuala Lumpur City Hall v. Siti Fatimah (2006) which was about a Muslim woman’s right to obtain a divorce from her husband under the Sharia if he had already divorced her under civil law. The case highlighted the contradictory forces between civil law and Sharia law in cases to which both systems apply to parties. Therefore, the Federal Court raised the court of first instance with this point and claimed that Sharia shall override civil law in such issues, pursuant to Sharia’s own dual system which states that Sharia should be favored to be applied in personal matters concerning Muslims.

2.2 Judicial Practices

Significant differences in the implementation of Sharia law appear also in the field of judicial practices. In Saudi Arabia, where judicial decisions are made by sharia judges (qadis) who have their roots firmly planted in classical Islamic jurisprudence, this is a problem, she argues. Both these judges enjoyed a large degree of discretionary capacity in their interpretation of the Qur’an and Hadith and the judicial process is not governed by a formal codified legal processions. Because there is no written code, judges depend in large measure on what they know of Islamic law and they apply the traditional interpretations of Islamic law. For instance, in the case of Al-Jedda v. According to a strict interpretation of Sharia, Saudi Arabia froze (2014) an individual with corporal punishment for drug trafficking. Later the case was appealed to highlight the loose and discretionary nature of judicial decisions in the kingdom.

Pakistani judicial practices are a hybrid system, on the other hand. However, Sharia is just as important, but Pakistani courts have a document to follow (the Constitution) and secular principles as well. In Pakistan, judges are enjoined to reconcile Sharia with constitutional promises of justice, specifically the right to a fair trial and the protection from cruel or unusual punishment. For instance, in the Asma Jilani v. Indeed, Pakistani Supreme Court in the Government of Punjab (1972) ruled that Islamic law is relevant and imperative but it can not supersede the basic constitutional structure of the country. This ruling depended the weight that Sharia cannot interfere with constitutional protection such as due process and fair trials ensuring compatibility of Islamic law with human rights norms.

Also in Malaysia, Sharia courts sit alongside civil courts and conflict frequently arises at the interface of the two. Primarily, Malaysian Sharia courts are charged with adjudication of family law and personal matters for Muslims. But criminal and commercial law remain the province of the civil courts, over which these courts have no jurisdiction. A prime example of how these dual systems are in conflict is the Case of Lina Joy (2007). A Muslim woman who converted to Christianity, Lina Joy, was unable to officially change her religious status for the state due to Sharia law which means Muslims have to remain in the religion. Tension between individual religious rights and Sharia jurisprudence was exemplified in the Federal Court ruling in favour of the state’s application of Sharia law over her conversion.

2.3 Comparative Analysis

The way in which Sharia law was integrated into legal systems varies among Saudi Arabia, Pakistan and Malaysia. The most traditional, conservative model where the ruler of Saudi Arabia has said repeatedly it will remain faithful to Sharia law that dictates its legal system, with no separation between religion and state. Pakistan provides the most practical example of Sharia law, which is selectively applied, in criminal law, in compatible with the constitutional and human rights principles. The Hudood Ordinances and cases like Zafar Ali Shah v. The Pakistan paper shows how Pakistan reconciles Islamic legal tradition with the modern constitutional framework.

Malaysia’s dual legal system is a unique model of legal coexistence—a special case of the more common situation in which Sharia law governs personal matters of Muslim subjects, with civil law being applicable to a wider and more diverse legal domain. Lina Joy serves as proof of potential conflicts among two different legal systems and decisions such as Siti Fatimah shows how Sharia law is affecting family disputes settlement under the civil legal system framework.

Finally, the path of integration of Sharia in current legal systems is dictated by the socio political state of that nation, its legal traditions as well as its historical trajectory. Other nations such as Saudi Arabia, which insist on the scrupulous observance of Sharia, Pakistan and Malaysia have adopted a mixed legal order which tries to combine Islamic law and constitutional and international human rights standards. However, these legal practices continue to be a function of both internal pressures, as well as global discourse on the relationship between religion and governance.

Chapter 3: Family Law and Sharia

3.1 Marriage and Divorce Laws

Marriage and divorce form the foundational sections of family law in Islamic jurisprudence and according to Sharia possess unique regulations for both. Marriage is regarded as a sacred contract called aqd (in the Islamic law) and Sharia views partners as having mutual rights and obligations vis a vis each other. But, in reality, marriage and divorce laws under Sharia, in terms of its gender roles and the rights of women vis a vis international human rights standards, have generated extensive debate.

Under Sharia Law marriage is a civil contract where both parties must consent. But monarchy in Sharia also permits the marriage of little kids, a practice now under legal examination. Marriage at a young age is allowed under Sharia in countries such as Saudi Arabia and, in some parts, marriage age is being reformed according to international standards. In Pakistan also, this is the same problem in which legal marriage age for women is 16 but minor girls are also married if a guardian approves it under some interpretations of Sharia, also concern about child marriage and protection of minor is a common problem. For instance, the case of Khadija Begum v. Legal challenges of child marriage were discussed in Government of Punjab (2005) and the need of safeguarding women’s right in accordance with constitutional grants of personal freedoms were focused.

Under Sharia, divorce is the right of both men and women but with marked differences of gender. Talaq or the process of divorce is criticized most for playing into the hands of men and giving them wide advantages. And under traditional Sharia law, it takes just saying the word ‘talaq’ – meaning dissolution of a marriage – three times for a husband to divorce his wife, or triple talaq or talaq-e-bid’ah, as it is known. This method has been widely practiced in India (especially) where marriage can be reduced without wife’s permission or her consent. The case of Shabnam Hashmi v. Practice of triple talaq has been identified by Union of India (2017) as being a matter of constitutional and human rights. India’s top court ruled that triple talaq is unconstitutional, striking it down as violative of Muslim women’s fundamental rights preserved under India’s Constitution including the right to equality and the rectification of gender bias.

Unlike Pakistan, Pakistan has implemented reforms to restrain abuse of the talaq by the Muslim Family Laws Ordinance (1961). This legislation makes it obligatory for a husband to lodge the talaq with the Union Council and a divorce shall only be made effective after the husband has spent the waiting period (iddah). With this goal of preserving women’s rights and stopping the arbitrary divorce in mind, the system continues to let men divorce unilaterally without giving the women much of a voice in the proceedings. Women can also seek the court’s permission to get khula (the wife’s right to divorce), although the process can last years in often unfair legal battles.

Another area where Sharia family law regularly conflicts with modern human rights norms is with regards to polygamy. Sharia does allow a man to marry up to four wives, but that practice involves the condition that the husband treats all his wives equally. In practice, this is generally not true, and raises human rights concerns. Polygamy is a permissible practice under the Sharia, maintains every country like Saudi Arabia and Indonesia, and since Saudi Arabia, while polygamy is allowed, the practice is strictly regulated. In Malaysia, polygamy is also legal but under strict state level Sharia courts and a husband cannot turn to polygamy without the permission of a Sharia court that shows financial capacity, with a very limited chance, to treat all of his wives equally.

The question of polygamy has become part of the debate on the issue of women’s rights at the international level, in relation to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, it is evident that the application of polygamous marriage is greatly problematic and raises grave questions about gender equity and justice in marriage and divorce laws under Sharia – firstly, when – when it is applied without sufficient consideration of women’s consent, and second, when women suffer unequal treatment.

3.2 Gender Equity

Issues of inheritance, custody and family are perhaps the most controversial aspect of Sharia law from a gender equity viewpoint. According to Sharia, the roles are distinct, though complementing each other, and the assumption is that the family unit is expected to operate according to these roles. Although these roles have been interpreted in many contemporary legal systems, conflict arises between the application of Sharia and contemporary human rights principles, which are clearly set out in international treaties, such as the CEDAW.

Of all of Sharia law, inheritance is one of the areas that clearly demonstrates gender disparity. A woman’s share of inheritance, according to the Qur’anic injunctions, is usually half of what is bequeathed to a man. For example, in the case of Fatima v. Hassan (2011) was a female heir in Pakistan who sought to challenge her view of the unfair division of inheriting her estate. While Sharia inheritance law presupposes that gender equality and Sharia do not sit well together, yet the court held that it applies Sharia, its principles, and the conflict gave rise to Pakistan’s Constitution. In balance of the religious law and the demand of equal gender in inheritance law, this case reflected how difficult it was. Although these decisions are governed by Sharia law, they frequently contradict the principle of equality in United States international human rights law.

Another area is child custody. The tradition of Sharia interpretation grants custody of young children to the mother, but the father continues to have the right to important decisions concerning the child education and religion. Yet, the custody can swing from mother to father in children’s custody cases where the children are older, and this can be productive when care giving becomes concentrated in one parent. For instance, in Jordan, the Sharia courts in the case of Ammar v. Layla (2005) ruled that even though the mother had custody of the children, she had better authority in determining the children’s future when the children reached a certain age, and by virtue of this fact, the will of the father prevailed. Human rights organizations have criticized this division, saying it may result in the denial of a family’s voice for women in issues where this voice matters.

In addition, CEDAW framework can be used also to challenge polygamy and the unequal rights of men and women in divorce and marriage proceedings. While legally allowing polygamy, Indonesia has come under heavy criticism with international bodies for the discrimination it faces in regards to women involved in such marriages. Women in polygamous marriages have very little legal recourse regarding their rights, as they do not have a right to seek justice if treated unjustly by her husband because of their decisions are taken by the husband. Polygamous practices in Nigeria have sparked alerts in 12 northern states that use Sharia where women rights, particularly with regards to inheritance and property division among polygamous families, are at stake. In such marriages, women may lack legal standing, since Sharia exalting a man’s authority does not sit well with contemporary standards of equality.

The problem of applying Sharia law in family affairs in women’s right in both national and international legal context continues. The gap between the gender specific provisions of Sharia law and the global push for gender equity has created continuous legal, social and ethical problems that must be negotiated between traditional interpretations and advancing demands of modern legal systems.

Finally, matrimonial, divorce and gender rule, Sharia law prescriptions meant to conserve family peace, are substantially against many human rights, especially women’s rights. However, even as sharia family law continues to intersect with modern debates about gender equity and with international human rights norms, case law drawn from a variety of Muslim majority states reveals the complexities that attend the enterprise of striking the proper balance between religious based law and constitutional and human rights guarantees. Given these issues are on the minds of legal systems everywhere, particularly in the West, the debate on Sharia as family law is part of a broader conversation concerning religion, law and human rights. But other cases, such as Shabnam Hashmi and Asma Jilani, and many others, are trying to interpret Sharia to advance gender equity and protect women’s rights. Big challenges remain in harmonizing Sharia’s normal decisions with current legitimate principles and global human rights principles. Ongoing attempts to achieve greater gender equality in Muslim-majority countries via the evolving interpretation of Sharia family law in each of these countries is a result of the interpretation of Sharia family law.

Chapter 4: Criminal Law and Sharia

4.1 Hudud and Qisas Laws

Sharia’s criminal law includes two main categories: hudud and qisas. Dedicated to the Qur’an and Hadith, these laws dictate particular punishments for a number of crimes regarded as offences against the divine law.

Offenses to which the hudud laws apply include theft, adultery, apostasy, and false accusation of adultery (zina). However, punishments under hudud are usually severe: a hand must be amputated for theft, a person stoned for adultery and a person flogged for alcohol consumption. These fixed punishments are intended as deterrent, and their application has been the subject of controversy, most recently in terms of the way that human rights groups have argued that these punishments are inhumane and disproportionate.

Sharia law, for instance, offers the amputation of a hand as punishment for theft. Application of this punishment in countries, like Saudi Arabia, where hudud laws remain in effect has attracted fierce criticism from international human rights groups. The global protests after the hand amputation carried out for a theft case in Saudi Arabia: Rashid al-Khuwaildi (2003). They say the punishment doesn’t take into account the socio economic condition that could lead to theft and that it is excessively harsh.

Meanwhile, stoning to death, the punishment for adultery under hudud law, has attracted wide international outrage. Perhaps one of the most widely discussed cases of stoning is that of Amina Lawal of Nigeria (2002), who is convicted of adultery, and sentenced to stoning, under Sharia law in the north state of Zamfara. This case generated approval from around the world for the penalization of stoning punishment. But following a lengthy legal battle, the Court of Appeal in Sokoto quashed the stoning sentence, with judges saying there were procedural flaws with the trial and that the punishment contradicted with Nigerian constitutional rights. Amina Lawal represents a case where Sharia criminal law overlaps with human rights, challenged as it is in enforcing hudud punishments with relatively modern judicial systems.

Other serious offenses under Sharia law include amputation for theft, stoning for adultery and in many interpretations apostasy, which involves renouncing Islam, in which the penalty is death in some countries. To take an example, in 2014 Meriam Ibrahim was sentenced to death for apostasy in Sudan, after this woman converted to Christianity. The outrage from international community was because this case was perceived as an infringement of freedom of religion. The sentence was eventually carried out, but overturned by the court, and the case is an example of the struggle between Sharia criminal law and global human rights principles.

With regard to Qisas, retributive justice, it requires to punish that ‘an eye for an eye,’ i.e., the victim of a crime has the right to reward or to get retribution equal to the penalty of the crime. For example, if a murder was committed, the family of the deceased may require that the killer’s life be taken or ant clear to accept the diya (blood money) as an alternative. On the one hand, this is presented as a means of justifying and memorizing the victims, but on the other hand, the furnishing of these principles has given rise to concerns with regard to the equitable application of such principles in the realm of gender. For instance in Pakistan, Qisas and Diyat Ordinnance (1990) allowed for the family of a murdered women to choose to receive diya (compensation) instead of demanding the death penalty for the perpetrator, which was often the result of women being viewed as less valuable than men in the eyes of the law. Critics of this law say it empowers the oppression of women and allows perpetrators in most cases by male relatives to escape full culpability.

4.2 Interpretation and Implementation Challenges

Implementing hudud and qisas laws raises serious competing challenges with its implementation such as in human rights concerned modern legal systems. One of the biggest difficulties is that the harsh, predetermined Sharia punishments don’t comply with credible protection, the principle of law, and the global human rights norms.

The Hudood Ordinances (1979) which brought strict hudud punishments to the country were infamous for their effect on women, especially in adulterous and false accusations of adultery (zina) cases. The Hudood Ordinances as they existed originally allowed severe punishment for a woman for a crime of adultery without adequate evidence or legal protection. Safia Bibi v. was perhaps the best known of these cases under these ordinances. Safia Bibi, a woman, was convicted of zina in The State (1983) based on a false accusation. The case showed how women are vulnerable under Sharia based criminal law since the law allows a conviction based upon the testimony of male witnesses and very difficult for women to prove their innocence.

In reaction to these worries, Pakistan reformed the Hudood Ordinances in 2006 under the Women’s Protection Act. In reforming the corpus of Islamic juridical law, this reform brought in stricter evidentiary demands, whereby four male witnesses were required to convict someone of zina, and gives greater protection to women by demanding that if wrongly accused, they have their legal recourse. Take the case of Safia Bibi as a crucial example the need for legal reform that would prevent the use of hudud punishments as a means to oppress women and would bring traditional sharia law into accord with guarantees of justice and equality in the constitution.

Likewise, certain state Sharia criminal law in Nigeria has been called upon to reformulate or to overturn hudud punishments to the extent they fail to comply with both Islamic standards of justice and modern human rights. The case of Yusuf v. In Kano State, the man was convicted for theft under the penal provisions of the hudud law State (2010). But, after being slammed worldwide, the ruling was appealed and the sentence was in fact commuted. Representing the conflict between hudud laws strictly and the force toward reforms of Sharia with constitutional rights, this case shows the viewpoint of the constitution and reveals the problem that Malaysia is faced with.

Human rights abuses committed in the name of religion are implemented throughout the world every day, either in the form of stoning, or other ‘hudud’ punishments. Human rights organizations, for example Amnesty International, have condemned the use of stoning and other ‘hudud’ punishments and called on governments to reform their laws to reflect principles of human rights, dignity and equality.

Chapter 5: Economic Law and Sharia

Islamic finance is Islamic because principles like usury (riba) are prohibited. This framework prohibits interest charged upon loans and replaces these with profit sharing models such as mudarabah (profit sharing) and musharakah (joint Venture), among a few others. Such so called arrangements allow both parties to share profits and these risks, and giving the impression of equivalence and partnership. In recent years, recent global growth of Islamic finance has been through an ethics based approach which reflects the philosophy of doing good business by associating financial practices with broader social welfare objectives. As a result, many Islamic savings accounts and home financing are now being offered by them to millions of Muslim clients. Islamic finance has not been limited to success in Middle Eastern economies, with Western economies also gaining access to this alternative via the home financing product, Murabah, offered by HSBC in the UK as a replacement to traditional interest based home loans. But this is not unique to Egypt; consistent with Islamic finance principles, these efforts show the ability for Islamic financial principles to run alongside secular legal and financial systems, without compromising Sharia requirements.

In recent decades, Sukuk, or Islamic bonds, are something of a revolution in Sharia compliant finance as they are backed by tangible assets as opposed to interest bearing debt, which makes the transaction compliant with Sharia law. The Sukuk is an adaptable and potentially lucrative tool to allow massive infrastructure projects to be financed with regard to compliance to Islamic principles. Malaysia is a key market player in the global Sukuk market, having issued more than 50% of global Sukuk issuances by 2020. These allow Sukuk Al Ijara—a lease based bond that returns are garnered from the income that is generated from the government owned assets such as the public building and infrastructure—as the tool that the country has employed in financing the public projects on the assumption of Islamic finance principles. Following on from this, Dubai has also raised capital for its important infrastructure projects through Sukuk bonds and likewise has illustrated how Islamic finance is expanding its role within the global market. Dubai issued a Sukuk bond in 2009 to restructure Dubai World conglomerate, which was then moribund, and despite the vagaries of the global financial crisis, Sukuk bonds proved a way to raise capital without compromising Sharia compliance. These case studies show how Sukuk has become a vital Sharia compliant financing instrument for countries wishing to harness global capital markets, yet at the same time adhere to Islamic ethical principles.

Additionally the rise of Sukuk bonds has international relevance. The UK’s first sovereign Sukuk was issued in 2014, £200 million raised for public infrastructure. The issuance of this Sukuk was groundbreaking as the UK became the first non Muslim majority country to issue Sharia compliant financial products, and such products are becoming increasingly more accepted in Western economies. The UK government tapped into the Middle Eastern market, while also diversifying its funding sources, using the issuance which was structured as an Ijara lease based Sukuk. This step has made it possible for Sharia-compliant finance to be more integrated within Western economies, importantly proving that though Sharia compliant finance can complement traditional finance, it can coexist and attract Islamic and non Islamic investors.

Apart from land or property, interest in trade and commercial laws is centered on fairness and transparency and prohibition of exploitation. Such prohibitions are consistent with ‘international business practice’ involving fair pricing, fair treatment in contract conduct and proper commercial conduct in general terms. In both Islamic and secular regulatory frameworks, the demand for ethical and transparent business practices is being increasingly reflected where the businesses and governments have an interest to prevent financial exploitation, consumer protection and to develop sustainable economic development. Although these principles that customarily are found in Islamic countries which implement Sharia Law, the overall implementation is subject to international trade regulations. For example, when in 2005 Saudi Arabia joined the World Trade Organization (WTO), it had to find a way in reconciling the WTO secular trade principles with Sharia law. In the meantime, Saudi Arabia managed to adjust its legal programming to its legal system, that is to say seriously incorporating exceptions of Sharia principles in international trade, in particular in the field of intellectual property protection and as regards anti-monopolistic practices. As such, it has made Sharia compliant economic policies sustainable while at the same time keeping itself an active partner in world trade.

As Sukuk (Sharia compliant) financial products continue to grow in global popularity, there is an ever growing need to use these products in line with international legal and regulatory regimes. Persuasive as these patterns of convergence had been, tensions remain between Sharia principles and global economic standards, for while countries like Malaysia and the United Arab Emirates (UAE) have integrated Sukuk into their broader financial markets, mounting the difficulties posed by bringing together features of Sharia compliant finance with the adherence to global best practices should not be trivialized. For instance, the Zakat (charitable giving) part of Islamic financial products that brings it together with the Islamic financial products can easily be at conflict with the tax laws of some countries and it, therefore, requires diplomacy and modification. Still, Islamic finance has shown the flexibility and appeal to grow in Islamic and secular countries.

Chapter 6: Reconciling Sharia and International Human Rights

6.1 Human Rights Norms and Sharia

The relationship between Sharia law and international human rights norms is often a complicated and controversial topic. Both want to establish a framework for justice and a moral conduct, but we find tensions with regards freedom of religion, gender equality and the rights of minorities. Most often these interpretations of Sharia diverge from traditional interpretations of the Universal Declaration of Human Rights (UDHR), a foundational document in international human rights law. For instance, the UDHR affords freedom of religion, but some readings of Sharia ban the conversion of Muslims to other religions and mandate very stiff penalties for apostasy. Likewise, the UDHR stresses gender equality while Sharia’s classical interpretations confer men preferent rights regarding inheritance, testimony, and family law (an area of huge concern for human rights campaigners).

Moreover, I contend that the scholars, especially, Abdullahi An-Na’im, though sharing with the secularists the position that these conflicts are irreconcilable, they believe that these conflicts can be handled through reinterpretation and reform that is embedded in the Islamic tradition. He advocates for a process of ijtihad (independent reasoning), in reexamining traditional interpretations of Sharia, of which norms to adjudicate within a modern human rights normative order. He argues that ijtihad should be directed by the Maqasid al-Sharia, the objectives of (the Sharia’s) preservation and protection of human interests (which include – life, intellect, religion, property and family). Whereas focusing on these overarching objectives will make it possible for scholars and jurists to come up with interpretations of Sharia which are closer to international human rights norms keeping Islamic moral currents in view.

In various case studies concerning conflicts between Sharia and human rights, the tension is clearly shown between Sharia and human rights in their relation to reforms which have been proposed or implemented. The great debate includes one example, the reform of Tunisian inheritance law. Previously, the Tunisian law was founded on a Sharia based system which saw male heirs inherit twice those of female heirs in cases of inheritance. In 2018 Tunisian President Kais Saied called for a reform to provide equal inheritance rights for men and women challenging this unequal distribution of inheritance rights. Tunisia’s legal system was supposed to catch up with international human rights norms, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), by reforming family law.

Conservative religious groups opposed the proposed reform, saying it violated Islamic law. Though, this reform was for the support of progressive faction in Tunisia, who defended this reform as it was essential for gender equality and modernization. The debate over the reform of inheritance law in Tunisia is a specific instance of a broader, and many times conflictual, attempt in Muslim majority countries to reconcile Islamic traditions with modern human rights standards. Although it has not been totally applied, it is already a big step forward in thinking about the role least responsive with Sharia as a response to modern legal systems and the necessity to harmonize with a universal framework of human rights.

Saudi Arabian law about women’s driving rights are other known cases. Before 2018, women in Saudi Arabia were not allowed to drive: a decree largely handed down in adherence to Sharia’s conservative application. Human rights groups widely accused the prohibition, which limited women’s right to equal mobility and opportunities. Last year, the lifting of the ban on driving by Crown Prince Mohammed bin Salman was hailed as a major turnaround in Saudi Arabia’s attitude to gender equality. Internationally, the move was praised as a gesture toward aligning Saudi law with international human rights standards, but also served to expose the contradictions between Sharia principles and the ever more nuanced Saudi state’s relationship with its women. The progress made for Saudi women continues, but other aspects of Saudi law, the guardianship system which needs women to acquire assent from a male tutor before they procure a couple of decisions, continues to be known to be in opposition to the principles of gender equality in international human rights law.

6.2 Pathways for Harmonization

A few possible ways to reconcile Sharia with international human rights norms has been proposed by scholars and activists. The Maqasid oriented approach would be one of these approaches focused on the objectives of Sharia instead of a rigid interpretation, such as the legal provisions. This approach addresses big picture goals behind the Sharia, such as justice, equality and welfare, and seeks to reinterpret specific ruling in a way that conforms to these big picture principles. Focusing the objectives instead of the specific legal mechanisms, it is possible to reconcile specific ones of Sharia with international human rights standards—gender equality and religious freedom—in preserving the meaning of the Islamic law.

Contextual ijtihad (i.e., that jurists make independent judgment, but in the light of the historical, social and cultural context), therefore, is another proposed pathway for reconciliation. This approach takes the position that interpretations of the Sharia change over time and that this change continues to change in response to changing societal norms and values. Contextual ijtihad of jurists who advocate it holds that contemporary interpretations of Sharia must respond to contemporary challenges, including the problem of international human rights norms. Revising, for instance, traditional rulings on women’s rights to inheritance, or apostasy, to reconcile with the principles of equality and the freedom of religion, might be included in this.

Finally institutional reform is among a key pathway of harmonization of Sharia with human rights norms. Strengthening the role of independent judiciary and human rights commissions in Muslim majority countries to guarantee that everything under the Sharia is in line with international human rights law. In this context, judicial review would serve as a means to prevent violations on two levels: by laws or policies at variance with Sharia principles on one hand, and with international human rights standards on the other.

Chapter 7: Conclusion

7.1 Summary

This clearly shows that there is considerable variation in Sharia law integration into modern legal systems, their socio political, historic and cultural internal differences of the various countries. Sharia is the very foundation of the legal frame in the country of Saudi Arabia, Sharia informs every bit of governance and the legal adjudication. On the other hand, Sharia is selectively applied in countries like Pakistan and Malaysia in respect to personal and family law only, its other facets being covered by the secular regime of law usually, criminal law, commercial law and administrative law. Despite its broad application, application of Sharia is regularly in direct conflict with international norms of human rights, especially in respect to gender equality, freedom of religion, and personal autonomy.

For instance, the landmark Asma Jilani v. The case in Pakistan (1972, Government of Punjab) illustrated the root conflict between how traditional interpretations of Sharia really apply to the constitutional protection of individual rights. In his ruling, Schneiderman revealed the minefield of conflict between constitutionalism and civil liberties and Sharia. Likewise, Tunisia’s 2018 inheritance law reform is a stark example of how Islamic law’s long held gendered inheritance rights are in tension with modern commitments to gender equality across international human rights law, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Yet this research finds that although there are conflicts between these notions, Sharia and international human rights norms can be reconciled such that they become mutually supportive in the development of just and inclusive legal orders. Achieving this reconciliation, therefore, necessitates a developing, and far more nuanced, reinterpretation of what undergirds its evolving principles, through the practice of ijtihad (independent reasoning) by which classical jurisprudence can be recontextualized in accordance with contemporary socio political and ethical realities. These defenders, including Abdullahi An-Na’im, believe in putting forth an approach to Islamic jurisprudence based upon Maqasid—that is, by interpreting Sharia in a way that puts forward the end goals of justice, fairness, and welfare instead of slavish adherence to particular looming punishments or interpretations. Moreover, this approach is not only kind to the ethical core of Sharia, but moreover ensures its compatibility with universal human rights norms. Cases that are illustrative of this are, as when the Saudi Arabian driving ban was lifted in 2018, to achieve revolutionary legal reform that would bring Sharia into alignment with current human rights practices even as Islamic ethical values are preserved.

7.3 Recommendations and Future Directions

Based on these findings, several essential recommendations can be made to shape the future research of scholars, as well as the ratification of the International Convention on the Rights of the Child by the Malaysian government, and subsequent developments in legal reformers’ efforts to harmonize Sharia with international human rights standards. First, the concerted effort must be made to foster contextual interpretations of the Sharia swinging between the spirit and the letter of Islamic law and at the same time contextualized according to the modern socio political situation. Such interpretations should not be arbitrary, nor imposed unilaterally, but rather should be scholarly consensus integrating diverse views from that same tradition, in conformity with the ethical precepts of Sharia as well as international human rights standards.

Drawing from political changes in Tunisia, it is possible to study an instructive case of Tunisian inheritance law reform to guarantee equal rights for both sexes in terms of inheritance. Although the reform was heavily opposed by conservative religious parties, it had some considerable support from progressive parties who had been supporting for gender equality. This dichotomy explains the vital need for legal reforms to be inclusive of, and consultative, Islamic scholars, policymakers, and civil society in producing law interpretations that are both sound legally and ethically.

Second, it calls on judicial systems to have an important role to play in the procedural safeguarding of people’s individual rights, particularly in protecting peoples right to freedom of religion, gender equality and protection from arbitrary punishment. The implementation of such hudud laws (prescribed punishments for offenses under Sharia), which frequently receive criticism from abroad for being too cruel, however, requires even greater attention. This is evident in Safia Bibi v. Pakistan (see discussion of Section 220(a) later in this chapter). In the State (2006, Pakistan), judicial intervention is required so as to protect the fundamental rights of women and to avoid the misuse of Sharia based laws. In this regard, the reforms to the Zina Ordinance are also illustrative of how judicial oversight can reconcile the competing requirements of the Sharia, the constitution and international human rights with regard to personal statutes.

These reform measures should further be followed by further research into the function of technology and digital platforms in helping to reinterpret and modernize Sharia law. Since the growth of the Internet and the growing availability of online resources, forums and fora for academic discourse, there is a huge chance to bring into common denominator a global community of expert scholars, legal professionals and activists within the debates on Sharia reform. Legal technology might also help legal technology financing the development of automated legal tools or digital platforms that will enable access to more progressive and diverse forms of interpretations of Islamic jurisprudence, which will strengthen other legal frameworks in building Islamic law in harmony with modern human rights standards.

In future research, regional case studies should be prioritized to examine the variety of ways in which different Muslim majority countries have taken to this challenge. Take, for example, cases where Sharia is considered part of the legal system, and the country’s legal system contains elements of Sharia; this is the case for example, in Indonesia with the country’s decentralized approach to Sharia, and in Turkey being a secular revenue court, yet with elements of Sharia. The case studies of these are able to provide insights into alternative models of Sharia implementation and the means by which legal systems can synthesize Islamic tradition with global human rights standards.

Accordingly, bureaucrats, scholars, and legal innovators may consolidate in their advocacy for legal frameworks that are in consonance with the ethical purposes of Sharia and sustainable justice, equality and human dignity for all persons (regardless of gender, religion, or social status). Harmonization is a very complicated road, but with continued scholarly and legal efforts it is a road to travel that must be pursued if we are to build a global legal system that respects both cultural diversity and human

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