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比较法,伊斯兰法的特性
伊斯兰法是一种自治宗教的法律体系，其基本内容主要基于《古兰经》。在这种体系里，你可以发现一个很重要的点与伊斯兰法相关，伊斯兰法律和实体权利是有区别的。在这一大多数人都信仰同一宗教的国家里，事实上，在伊斯兰国家是存在双重管制这一现象的。
伊斯兰”是阿拉伯语,它的意思是“方法”或“路径”，是一个术语，描述了每一个穆斯林的人必须遵循的方式。这个词实际上是他们所谓的伊斯兰法律。这个词可以应用到每一个宗教系统。在当今世界里，伊斯兰教法与穆斯林息息相关，同样它也适用于犹太教和犹太律法,或天主教和十诫。伊斯兰教法是一种法律框架，它用来监管人们的生活，穆斯林是一个神权国家,所以文本就是法律本身。
如今,伊斯兰法律是世界上三大最重要的法律制度之一,其他两个分别是法国集团(罗马或民法)和英美法律一系。
在这过去的50或60年,世界中心都不在阿拉伯国家,特别是在第二次世界大战时,大部分的边界是由国外设置的。
Comparative law, characteristics of the islamic system
Comparative law, characteristics of the Islamic Law
The Islamic law is an autonomous religious system of law which is based mainly on the Koran. Here, one can see one of the most important points related with this law: there is a difference between the ISLAMIC LAW and the POSITIVE RIGHT of a country in which most of the population follows this religion. In fact, a double jurisdiction exists in countries under Islamic law.
“Sharia” is an Arabic word which means “way” or “path” and is a term describing the way that every Muslim person must follow. This term is in fact what they call the Islamic law. This word could be applied to every religious system. In modern times, sharia has been related with the Muslim world, but it also applies to Judaism and the Torah, or Catholicism and the Ten Commandments. Sharia is thus the legal framework in which life is regulated. Muslim states are theocratic, so this text is law itself.
Nowadays, Islamic Law is one of the three most important legal systems, the other two being the French group (roman or civil law) and the common law group.
Within the last 50 or 60 years, states were founded within the Arabic world, especially after the Second World War when most of the borders were set by foreign countries.
In most of these states a jurisdiction problem exists between the Islamic law (connected with the religion) and the ability of the state to make its own positive law. Due to this dichotomy, over the years various states have approached this problem in different ways, to the extreme: from the Taliban in Afghanistan to Turkey, which is striving to attain a western legal system. In the middle, one can find as many answers to this dichotomy as Muslim countries exist.
One important and unique principle of this legal system is that the state can create new laws only in the fields which Allah had not revealed. Thus, the law is tied directly to the Muslim faith and only Muslims can be charged within this legal framework. Due to this principle, a problem emerges for the governments which have non-Muslims living in their jurisdiction because the religious law could not be applied to them. It is because of this issue that in many countries both public and private law were set together in a new fashion so that it could be applied to the entire population, even to non Muslims.
Origins: The Islam's history
According to Muslims, Sharia is founded on the teachings of Allah and sayings of Muhhamad as founded in the Quran and Sunnah. However it is necessary to know how the Arabic world was before the IV century when Muhhamad makes his appearance around the year 570 or 580 BC.
This old world did not know a central political organization but tribes which were composed by relatives. Each tribe had a tribal leader and everybody reported directly to him. Most of these tribes had a nomadic lifestyle but others settled down and gave origin to different cities. Although they did not have a community sense, every tribe could recognize a common historical beginning, a culture in which they based their beliefs or religion; they were polytheists. Because of this origin, leaders agreed in depositing some objects which represented their worship and adoration in the same place. They built a cuboidal black house in the important city of Mecca: The Kaaba which would become the most sacred place of the Islam. Every tribe made a pilgrimage each year to this place to adore the Kaaba, which is now a ritual taken literally for Muslims.
Around the year 570 or 580 BC the family in charge of watching over the Kaaba had a kid who would be known as Muhammad. This man at the age of 12 took part in a typical caravan among tribes, cities, etc, which allowed him to have contact with Arabs, Jews, Catholics and so on. Back in his home city Muhammad, around the age of 40, claimed that Allah had revealed to him the last and definitive laws for the people. It wouldn't be either a break nor a rejection of the Old and the New Testament but the last one. This new religion was called ISLAM which means “to be a believer” and so far means Muslim.
It took time to get the message across to people. Many people, especially the rich of Mecca, did not believe in it, so they pushed away Muhammad and his followers from Mecca. This prosecution of Muhammad came to be known as Hegira and this moment would be taken by Islam as the year 0 later on.
Because of this rejection, Muhammad and his followers travelled through the desert till finally they were accepted in a city which would be called Medina (Today Saudi Arabia), which means City of the Prophet. After Muhammad was accepted in Medina, he and his followers began to convert the people of Medina to follow his religion, changing the society by implementing a more centralized process.
As long as Muhammad gave his message orally, there was no code or law which contained it. Due to this, the closest and wisest people started to write down what the Prophet had said, and this is what is known as the QURAN.
Another problem which appeared at this time was the issue of succession because he had recognized no leader. This problem led to the division of the Islamic world into different schools of thought, which is a division that exists to this day. The most important schools were:
- Shiites
- Sunnis: this is the most conservative and closest to Muhammad's behave.
Shiites and Sunnis
These schools of thought are the most important ones within the Islamic world. The number of followers of each one and the distribution among the countries is hard to define. The background of this division is given by Muhammad's death in 632. Since there were no instructions left for his succession, these schools took choose different ways to follow, which are still held nowadays. Over the years the relation between them has been marked by cooperation and conflict.
“Sunnis” is a world which comes from Sunnah or Prophet's behaviour, which is the second source of Islamic law. Thus, this is why they are more conservative. This school of law held that Muhammad's successor should be elected by the community as the Quran says and so far, the leaders of the community proposed Abu Bakr as the successor and with the support of other groups, this caliph took the leadership of the Islamic community.
On the other side, Shiites kept claiming their candidate who was Ali, Muhammad's cousin., was the appropriate successor. They held that the Prophet had chosen Ali as his successor when he was still alive. Ali was a leader in battle and often entrusted with command. Muhammad left him in charge of Medina when leaving to convert Mecca.
The Islamic law is based completely on the Quran, and so is Muslim society. The Quran is the holy book of Islam and it contains every revelation which Allah has given to Muhammad, the last prophet. For Muslims, it has all the wisdom of the universe, not only in the legal aspect but in every aspect of the life. Muslims must have a total submission to it.
The Quran is not a code itself because its legal requirements are not enough to be considered a real code. Additionally, some of the fundamental institutions of Islam do not appear in it. It regulates people's lives and their relationships between themselves and with god. Furthermore, a judge of one of these countries is not obligated to interpret it but he must refer to the doctors who have studied and interpreted it before. In addition, the judge may not interpret the Quran but the actions of the person.
In its legal parts, which is less than 10 percent of it, the Quran is not really a tidy and systematic code but almost impossible to understand if one does not have enough knowledge. It does have some dispositions about criminal law, civil law, etc. It contains also the punishment for murderers, traitors, Islam's enemies and adulterers.
Sunnah
Because the Quran was revealed in a relatively short period, the small population which was following it had to deal with new situations as this religion grew. In controversial cases, it was necessary to have a look in complementary sources. The Sunnah is one of these sources. It is the prophet's tradition, his words, actions and silence. It is part of the Sharia as the second source behind the Quran. In this way, when facing a legal situation without answer in the Quran, judges must interpret prophet's actions, sayings, tacit consent and acknowledgement of activities and statements. The justification can be found in the Quran when it commands every Muslim to follow Muhammad as an example.
This source was the cause of the division between Muslims due to the fact that Shiites followed the interpretation made by Ali who was called Muhammad's successor, and Sunnis did not take this interpretation and accepted others as well.
Rationales and derivatives
Idjma or Consensus
This is the third source of the Islamic law and it is the consensus of the community. The idjma is legitimatized by many verses in the Quran:
- “My followers will never agree upon an error or what is wrong”
- “God's hand with the entire community” which means that what community thinks it is good, so it is for Allah.
Neither the Quran nor the Sunnah could solve every problem or situation in life, and so for solving this insufficiency the Idjma developed this source.
Obviously it is not expected that the whole society agree on all issues and that is why it is understood that this source references to the consensus of the doctors or wisest people within the community. Therefore, one can appreciate this difference of Islam in comparison to other legal systems- the conception of this legal custom which is a consensus of the people within the Islamic law. For idjma to work, most of the population needs to have the same custom to make it law, as long as there is no law which prohibits this fact. In the Islamic law, the consensus is only among the wisest people who give or have given their point of view facing some circumstances.
One important point of this source is that judges must consult the Idjma because it is the last and infallible interpretation of the original and revealed sources.
Itjihad
This is the last source within the Islamic law and it is the effort of the Cadi or judge for solving a problem when the answer for it cannot be found within the previous sources. In these cases the judge will consider different aspects of the issue and will make a final decision that can not be against the previous sources but that can be founded in different external sources, as for example another legal system.
The Itjihad is one more point of argument among the different Islamic schools due to the use of external sources. The more conservative Muslims support the idea that every answer must be within Islamic sources, thus they do not believe in the authority of the Itjihad.
Having the last point in mind, it must be said that Sunnis accept one more source and it is the reasoning through analogy or QUIYAS. They base their acceptance of this source in that every legal injunction guarantees a beneficial objective. Eg: Quran prohibits wine because its intoxicating power, so sunnis believe that every intoxicant can be prohibited.
Characteristics of Islamic Law
Mover al comienzo?
The fact that the Islamic law has been consolidated during the Middle Ages explains some features of the system, such as the archaic aspect of some institutions, its mystique and the absence of systematizing. It has been developing itself case by case. On the other hand, it is odd in comparison with other legal systems. First of all, its base is a holy revealed book and because of this it must be considered totally independent of the other legal systems due to the fact that they do not share the same source.
One very important characteristic is that Islamic law was born as a religious law which did not distinguish between religion and government. For it both are the same and the authorities are nothing but its servants. Therefore there is no authority that could modify it in those aspects. In the modern world authorities usually appeal to administrative regulations to create laws which regulate those aspects that the Quran does not totally prohibit or command but advice or condemn.
Islamic law says how a Muslim must behave and who does not obey it is a sinner. To clarify this point, it should be said that Islam has 5 kinds of actions and only two of them are commanded or prohibited. The others are in the middle and are condemnation, advisable, or praiseworthy. In this way, the person who realizes an action which is a command will be rewarded by God, and the person that does the prohibited action will be punished by the cadi (judge). Those people, who realize one of the other kinds of actions could be either punished or condemned, rewarded.
Another controversial point is really close with the last one and it is about the extension of this law. In theory Islamic law cannot be applied to non-Muslims but before saying that one should examine all the circumstances of the environment. At a first view, it can be said that it does not apply to those people who are not member of this religion and therefore do not follow or do not even know its rules. On the other hand, there are some circumstances under which Islamic law governs over non-Muslims and the base of this is known as the Public Order.
Public order aa public order crime is that behaviour against the norms, social values and customs. These crimes do not have a single victim but rather the whole society as a group. Every person could feel themselves affected by this attitude and so the State and justice system punish them. Authorities must care for society's welfare and integrity, and that is why they could not allow people to go on with this kind of acts, because it could damage the fundamental right of every person.
Conflicts of laws
Because of the previous point, it is clear that conflicts of laws appear constantly due to the fact that people are constantly moving from country to country, and interacting with each other. In this context it is really necessary to have a clear understanding of how this problem can be solved, but there is not a real answer. Each country deals with this issue differently. The application of the Islamic law may create tension, especially when regarded as family law, but it is still possible. It is necessary to clarify that in this item just private law is considered as long as the public law or state administration cannot be changed because of one person and state's organization is always a public matter.
It should be said that the German way of approaching this issue is really different to the other legal systems like the Anglo-American or the roman one. The anglo-american system looks at the most significant relationship between the case and the law. Most of the countries approach this problem with the aim of keeping the welfare of the people and as long as they do not disturb the public order the foreign law could be applied. From this we could say that in most of the countries it is examined case by case. In the German law, one could find something really new and original: the procedure is clearly detailed from the beginning.
In Germany, in cases concerning the areas of family law and the succession, the application of legal norms is often determined on the basis of nationality rather than domicile. But in this cases in which the application is incompatible with the main principles of German law including the constitutional civil rights, German law is then applied instead of the foreign one.
Comparing Islamic law
With the Jewish law
They are both similar, finding their main expression in the law, developing themselves from the debate of their holy books and their interpretations. The main difference is the political function of the Quran. While it defines the political organization as well, the Torah does not have any political function in Israel with the exception of the orthodoxies.
With the canonical law
Both are the law of a community of believers but at the same time they are quite different.
Islamic law takes part of the religion in every detail, it is revealed and that is why nobody could modify it. Who does not obey its rules, is a sinner and who discusses the solutions is a heretic.
Catholicism had been propagated within a society with a high level of civilization and in which Law had a great prestige. Due to this, canonical law had not replaced the Romanic but affect just people's ethics and moral. In addition, it is not a revealed law.
Islamic Law's principles
Islamic law is the law of Allah and every person is taken as equal to others. Nobody is better or superior than the other with the exception of the Prophet and the caliph as his successor and as an indirect agent of god.
As long as Islam is the last religion, it recognizes the existence of the previous ones and because of this, it allows other people to follow and believe in them. That is the reason why during the Jihad or holy war, many populations could keep their religion. It had not been imposed to the conquered people. In this direction, it is really important to know that Islam is not applied because of territory as the modern legal systems, or because of discrimination among people like the Romans. It is fundamentally religious; therefore Islamic law applies only to Muslims.
Islamic law does not distinguish between matters of church and matters of state. It does not have really public legislation regarding the administration and therefore it is a field in which states can create new law.
Adaptation of the Islamic Law to the modern world
Islamic law is immutable due to its revealed character but at the same time it offers different resources to face new situations. It is in fact a really flexible law. It is obvious that its archaic character makes an update of this law extremely needed so it can be prepared for the contemporary world. In regard to this, Islamic law has different procedures that make it possible to avoid any type of conflict with the traditional principles, and in this way it keeps the community sense for the followers at the same time that society advances.
- Custom
- Private conventions
- Administrative regulations
- Stratagems or legal fictions
- Rulers intervention
Custom
Islam is the second religion all over the world with more than a billion of followers and because of its extension it is not possible for it to have only one kind of custom. These vary from place to place but as long as Islam wanted to keep uniformity among its people, custom was not considering as a part of the Sharia. Nevertheless Sharia does not condemn people for having different customs as it respects Islamic law.
Many of the Islamic law experts explain this with an extract of the Quran: “what followers have considered as good is good for Allah”.
Private conventions
Islamic law does not have so many commands and leaves a wide margin for man's freedom. In this way it is possible that he who wishes to update his life can make a private convention or contract as long as he keeps his loyalty to Islam.
“It is not an offense to make conventions besides what is prohibited by law”. This is a principle which allows people to introduce changes in these subjects in which Islamic law advices but not commands. So far before marriage, the spouses could set the repudiation right which will allow the husband to divorce himself from his wife, or vice verse.
Stratagems or legal fictions
The Sharia demands the respect for the law in itself and not for its spirit or real meaning. The Cadi (religious judge) does not worry about the conscious neither the hidden intentions of the doer but the external aspect. In this way, one could avoid different rules just making up the needed outside appearance but with a different aim. Eg:
- Islamic law prohibits the interest in loans but one could avoid this making a double selling or giving to the seller as a guarantee an asset which produces benefits.
- The interest prohibition just applies to real people but not for banks.
Rulers intervention
People in the government are nothing but servants of the religion and law. They could not make new laws but they have the authority to make new regulations based in the fact that they must care about the justice and welfare.
Reality is different from this and authorities make laws which are not limited to this aspect.
Law in Islamic countries and a current application
More than 400 million Muslims are the majority of the population of 30 countries, and big minorities in others. None of these states has only Islamic law but also custom or laicism legislation bring new things which make some of the Islamic laws useless. It happens even if Islamic law is proclaimed from the beginning. In this context it is necessary not to confuse the religious law with the positive law of a Muslim State.
This occurs in Christian countries as well, a religious society does not get confused with the civil society. These societies had always lived under laws and customs which were based in the religion.
Through the years three special events happened which affected the Islamic law application:
Administrative regulation has been developed as it has never been. This not only affects the aspects that Islam does not consider but also others.
Muslim countries have taken a lot of institutions and regulation of occidental legal systems.
Double jurisdiction has been eliminated in several Muslim countries. Therefore both common and Islamic law will be applied by the same judge.
Islamic law had always recognized the ability of the authorities to make laws with the aim of keeping the welfare of the population but during the last century these authorities have been using this ability in a stronger way developing a complete new law. In addition, many times the use of this ability has affected rules that come from the Islamic tradition. Several changes had been accepted as long as they did not mean a change in the private law (family, people, etc)
It needs to be said that during the last decades, a new revival of the Islamic law has been taking place in several countries where pro-Islam groups are active. However, the Islamic law does not take place in any country as it was known originally.
Jihad or Holy war
It is an Islamic term which means “struggle” and it is considered as a duty for Muslims. A person engaged in Jihad is called Mujahid. The term “Jihad” appears often within the Quran and the common usage idiomatic expression means “striving in the way of Allah”. During the last few years, it has been said by almost every person in the world but the term is seldom used correctly.
As the Quran itself, the term is not clearly defined in this revealed book and that is why different meanings has been given to it. In this way the modern Arab gives it the meaning of struggling and so Jihad could be used in several ways.
The most important debate nowadays is if Jihad means holy war against an enemy of it is just the struggle that one could do to live in peace and stick to Islam. In this sense the two biggest Islamic schools have different opinions. For the Sunnis, which are more conservatives, it means fighting against the enemy which is everyone who does not stick to the Quran. For the Shiites it means something more peaceful and this would be to keep to Islam and represent it as well as possible, and obviously trying to show others which is the way to follow.
A PARTIR DE AQUí ES TODO RETOCADO POR JAVIER
Islam, Culture and Women
First of all we have to eliminate all of the prejudices about Islam if we want to understand this religion and its culture. It is thought that Islam goes against the women and their wills by making them marry strangers, wearing burqas, forcing them into polygamous marriages, mutilating the genitals, forbidding them to drive cars and humiliating them by instant divorces...In fact, none of these practices are Islamic at all.
If we want to understand Islam, we must first separate the religion from the cultural norms and style of a society.
In fact in certain areas of Africa and Egypt female genital mutilation is still practised, however this is viewed as an inconceivable horror by the vast majority of Muslims.
Forced marriages may still take place in some parts of India, Pakistan and Bangladesh, but Islam marriages are based on the free consent of the bride and the groom, so such marriages could even be illegal under religious law.
These are 6 points about Women within the Islamic law that we would like to apply to:
1) Equality
Islam considers women and men as moral equal. It also encourages the families to be matriarchal although it is clearly patriarchal since most of the times men are in charge of the house.
The Koran says that man and woman "were created of a single soul”. Women have the right to inherit property, to vote, to divorce, to have access to knowledge and to conduct business.
The differences emerge most strongly when it comes to pregnancy, child-bearing, menstruation and also clothing.
The Muslim woman's active participation in community affairs was established from the earliest days.
2) Dress code
The woman's use of veil is a more difficult issue. The Koran orders them to behave and dress modestly, but this also applies to men. Only one verse refers to the veiling by saying that the Prophet's wives should be behind a hijab whenever his male guests converse with them.
A woman must cover her whole body because this minimizes sexual enticement. But this is the same for both men and women. Obeying the dress code is a form of obedience to God.
The Islamic dress code of covering the head of women doesn't imply the inferiority of women towards men. The Koran explicitly says that the reason for her dressing this way is that she will be respected in this way. The message that the woman gives when she wears Islamic dress is as follows: “Respect me for who I am. I am not a sex object.”
3) Female circumcision
It's only a cultural practice and doesn't have any textual evidence on the Koran. It is simply a regional custom in the places where it is practiced. It's nonsense as many medical professionals consider it to have detrimental effects for the girls who have their clitoris removed by the operation.
This custom is not allowed to continue as within Islamic Law, preservation of the person is a legal necessity. Anything that compromises this legal necessity by bringing harm to the person is unlawful.
4) Beating women
When is it allowed for a man to punish his wife physically?
There are important exceptions: he may do so only if her ill-will is wrecking the marriage - but then only after he has exhausted all attempts at verbal communication and tried sleeping in a separate bed.
-The Noble Qu'ran says (An-Nisaa 4:34 )
Men are the protectors and maintainers of women, because Allah has made one of them to excel the other. Therefore the righteous women are devoutly obedient (to Allah and to their husbands), and guard in the husband's absence what Allah orders them to guard (e.g. their chastity, their husband's property, etc.). As to those women on whose part you see illconduct, admonish them, refuse to share their beds, (and this is the last thing to do) beat them (lightly, if it is useful), but if they return to obedience, seek not against them means (of annoyance).
This is what the Koran says about this point. Moreover, we have to remark that by the time the Prophet was alive, he never hit a woman, a child or old person, and those who attempted to do so, they could never regard themselves as good Muslims.
The Prophet explicitly stated that you should never hit "one of God's handmaidens".
"The most perfect Muslim in the matter of faith is one who has excellent behaviour and the best among you are those who behave best toward their wives." (Tirmithi)
- The Only Way to Beat .
Beating can only be done if it doesn't imply physical harm to the person. It should only be done in very exceptional cases, for example, a flagrant disobedience to the man.
From the prophets we got the knowledge that the words "beat your wives" in The Koran refers to strike with something relatively soft such as a bundle of thin grass or at worst a flimsy stick. The beating must not be done with severity. We have to note that for women is completely “haram” (forbidden) to abuse her husband or children.
Islam does not consider as an abuse to gently strike someone in response to flagrant disobedience to follow instructions. In fact, such gentle beatings cause embarrassment and bring clarity for the seriousness, in order to repair and revitalize the relationship and guide the person back to Islam. Although a wife or child can both be beaten (always lightly as mentioned throughout this article), wives must not be treated in the same way as children, as the conditions and situations are completely different.
Men can also be beaten, and should be under an Islamic government, for certain crimes (public drunkenness) by other men. These beatings are usually stronger as the ones done at home, as they are in response to crimes in society.
5) Muslim marriages
When we talk about Muslim marriages we always relate this to polygamy and the limit of four wives per man. This is because the Prophet lived at that time when continual wars produced large numbers of widows, who were left with little or no provision for themselves and their children.
Under such circumstances, polygamy was encouraged as an act of charity. Needless to say, the widows were not necessarily sexy young women, but usually mothers of up to six children, who came as part of the deal.
For several reasons, polygamy is no longer common. The wives need to be treated fairly and equally and if a husband wishes to take a second wife, he should not do so if the marriage will be to the detriment of the first.
In Islam sexual intimacy outside marriage is forbidden, and this also includes sex before marriage, adultery or homosexual relationships. Nevertheless, within marriage, sexual intimacy should be raised from the animal level to “sadaqah” (a form of worship) so that each one considers the happiness and satisfaction of the other, rather than mere self-gratification.
One of the things that really impressed us is a declaration of one of our Muslim's friends saying that, whenever Muslim people wanted to have sex with a prostitute when one or both were already married, he was only permitted to do so if he signed a contract for one hour of marriage and so they could have sexual intimacy together.
When a Muslim woman gets married, she can't do so against her will as her consent is essential. If she did accept, she is not expected to give up her family name for her husband's name. It is even more important, on a practical level, that she was always considered a separate financial entity.
When she marries, her property remains her own and her husband has no access to it without her consent. She isn't even required to share in with the family's expenses even if she were a lot richer than the man. She was entitled to an explicit share of inheritance from family members. That share might be less than her male counterpart but that was only fair considering that her money was hers to keep while his money belongs to his whole family including his wife and any other women in his family who need financial support.
6) Divorce
As marriages in Islam are contracts with conditions whenever one of the parts breaks the conditions, divorce is usually expected, but not allowed. Nevertheless, a hadith makes it clear that: "Of all the things God has allowed, divorce is the most disliked."
A Muslim has only one reason for divorce and this happens when a wive's behaviour goes against the sunnah of Islam, in other words, if he or she has become cruel, vindictive, unfaithful, neglectful, selfish, sexually abusive, tyrannical, perverted - and so on.
But it must be said that before divorce can be contemplated, all possible efforts should be made to solve a couple's problems. In order to do so, there is a three-month period after an intention to divorce is announced.
If, by the end of each month, the couple have had sexual intimacy, the divorce should not proceed. The three-month rule ensures that a woman cannot remarry until three menstrual cycles have passed, so if she gets pregnant, the child will be supported and paternity will not be in dispute.
The woman in Islam is, at first, expected to accept her man as the head of her household. She must, therefore, take care to marry a man she can respect, and whose wishes she can carry out with a clear conscience. However, when a man expects his wife to do anything contrary to the will of God, he has the right to refuse her.
Her husband is not her owner; a Muslim woman has only one owner and that is God. Moreover, if her husband does not represent God's will in the home, the marriage contract is broken.
However we must take in care the fact that divorce is the last resort and highly discouraged and it can be used only if it attempts for reconciliation by family members and even the judge have failed.
The Nature of Allah's Commands (The 5 actions)
All the commands of Allah to humans are within the domain of human capability and capacity. There is not a single command in the Koran that humans cannot carry out or perform.
In the Islamic Divine law the Ahkam and the legal regulations in regard to all human behaviour can be divided into five categories:
1. Wajeb or Fardh (Required, Obligatory):
This category contains obligations such as daily prayer, obligatory fasting, etc., which every Muslim, male or female, who have fulfilled the requirements of takleef, or the ability to do them, must follow. The requirements that every Muslim should fulfil in order to perform these obligations are:
1st: being mature by reaching the age of puberty (children are not obligated in Islam, but they are encouraged).
2nd: by having sound reasoning (insane, comatose people, or people in a similar unconscious states are not obligated).
This type of required behaviour is binding and it is established by definitive proof in the Koran and Sunnah. The performance of Wajeb or Fardh acts is rewarded. According to the Koran and Sunnah, if a Muslim rejects performing these required behaviors they would be punished, both in this world and in the afterlife.
The Fardh or obligations are divided into two kinds:
One is called Fardhu 'Ayn which means individual or personal duties that every Muslim is responsible to do. Each Muslim is responsible for their own prayers, almsgiving and fasting and are held individually accountable for the performance of these duties.
Second: are those called Fardhu Kifaya, which means collective duties, such as attendance at funeral prayers, or commanding the good and forbidding evil. If some member of the community did this duty in a way that fulfils the goal, then it is no longer obligatory on the rest of the community to do it, and they are absolved from this duty. Those who perform this duty are the ones who will be rewarded. If no one achieves this duty, then the whole community will be held accountable.
2. Mandoob (Recommended):
This hukm is also called: mustahabb, masnoon, and nafl. Mandoob is any act that is recommended but not required. While there is no punishment for the neglect of duties which are Mandoob, there is reward for performing them.
The Mandoob or recommended acts include extra prayers, fasting Monday and Thursday, praying sunat alfajr, charitable acts, and pious deeds of different kinds.
Documenting transactions and debt among people is not obligatory but recommended in order to protect the rights of people and their inheritances in cases of denial or forgetfulness.
3. Mubah (Permitted but Morally Indifferent):
This is also called: ja'ez and halal (lawful). Mubah is any act that is left to the personal decision and to individual liberty. Muslims can make the decision whether or not to perform any act that is considered Mubah. There is neither reward nor punishment for the performance or avoidance of the Mubah.
There is a rule in Islamic law that all things in their original or natural state are Mubah (halal or lawful) unless there is a regulation of their prohibition because Allah said in the Qur'an:
“He is who created for you all that is on earth [outside the earth or hidden inside it].” (Qur'an, 2:29)
Although there is neither reward for doing mubah nor punishment for avoiding it, the intention might turn a mubah act into a rewarding act. For example eating with the sincere intention to strengthen your body so you can work more and help your parents is an act of reward, because of the sincere intention toward the parents.
4. Makrooh (Discouraged or Abominable):
An action that to avoid doing is preferable than doing it. One good example for this act would be divorce because for the Prophet Muhammad that is “The most abominable of permissible things in the sight of Allah.”
However, for acts of doing makrooh there is no punishment, and for the avoidance of these acts there is reward.
Another example: the Prophet Muhammad made it clear that it is makrooh to offer to buy something for which another person has made an offer to purchase, or trying to offer an engagement to a woman who was already engaged to another person.
Makrooh is the opposite of mandoob, meaning that the neglecting of a mandoob act is discouraged and leads to a makrooh.
5. Haram (Forbidden or Prohibited):
It is also called mahdoor. Haram is any act that is prohibited by the religion. These acts are binding by definitive proof in the Qur'an and Sunnah. For the performance of haram there is punishment and for the avoidance of haram there is reward.
Some examples of haram are killing, stealing, unlawful sexual activity or adultery, drinking alcohol, and gambling.
The prohibited acts are clearly mentioned in Islam with the word of prohibition or other words similar in meaning in the Arabic language. An example is this verse from the Qur'an:
“Those who unjustly eat up the property of orphans, eat up a fire into their own bodies: they will soon be enduring a blazing fire!” (Qur'an, 4:10)
By doing what is haram or prohibited a person is subjecting himself to punishment; in this world or in the hereafter. Specific punishments are prescribed penalties and are applied according to Islamic Divine law, and can only be performed by an Islamic court with qualified judges.
According to the tradition of the Prophets, abstaining from haram is an act that deserves the rewards in the hereafter.
Every Haram in Islam is prohibited, by the Qur'an and Sunnah, in order to secure benefits, the rights of people, to enhance the society, or to prevent harm.
Haram or the prohibited are of two kinds:
The first type is haram lidhatihi, meaning that it is harmful itself, and it becomes forbidden for the harm that is intrinsically possessed. Harm will be inflicted on the user of such a thing. An example of this is found in the Qur'an, where Allah said:
"He has only forbidden you to eat dead meat, and blood, and the flesh of swine" (Qur'an, 2:173)
The same can be said about killing and stealing. Adultery, murder, and theft, are all forbidden for the same reason.
The Second kind is haram lighayrihi or an act that is forbidden for a reason other than itself. This kind of haram is not harmful in itself, and might be very useful, but it is associated with something else that deprives it its value and turns it to haram. An example would be as follows: prayer is wajeb, but to pray in a house or on land that is taken illegally and unlawfully from others make the prayer itself unacceptable. A contract of business or sale that takes place during the time of the Friday congregational prayer is a haram of this kind, although sale and business is not forbidden, but during this specific time it becomes haram lighayrihi.
Here we have a table that summarizes the five kind of actions:
Main differences between Shias and Sunnis.
Westerners observers often attribute fundamentalism to Shiites. However, Muslims in general do not consider Shiites to be fundamentalist. They point instead to Wahhabis, a group of Sunnis who are fundamental in regards to the strictest interpretation of biblical texts and the refutation of praying to saints or beloved Sufi leaders. Of great importance is remembering that it is only the “One God” to which people may pray. Any other prayers are polytheistic and against the fundamental teaching of Islam.
-Theological differences:
On the one hand, the best known modern example of the Shia supreme Imam is the late Ayyatollah Khomeni. This Imam is impregnated with Pope-like infallibility and their religious hierarchy is not dissimilar in structure to that of the Catholic Church within Christianity.
On the other hand, Sunni Islam, more closely resembles the countless independent churches of American Protestantism.
-Sunnis do not have a formal clergy, just scholars and jurists, who may offer non-binding opinions.
-Shias believe that their supreme Imam is a fully spiritual guide, inheriting some of Muhammad's inspiration ("light"). Their imams are believed to be inerrant interpreters of law and tradition. Shia theology is distinguished by its glorification of Ali. In Shia Islam there is a strong theme of martyrdom and suffering, focusing on deaths of Ali and, particularly, Hussein plus other important figures in the Shia succession. Shi`ism attracted other dissenting groups, especially representatives of older non-Arab (Mawali) civilizations (Persian, Indian, etc.) that felt they had not been treated fairly by the Arab Muslims.
However, there remain significant differences between the two forms of Islam and these tend to be emphasized. Many Sunni's would contend that Shias seem to take the fundamentals of Islam very much for granted, shunting them into the background and dwelling on the martyrdoms of Ali and Hussein. This is best illustrated at Ashura when each evening over a period of ten days the Shias commemorate the Battle of Karbala, with a wailing Imam whipping the congregation up into an aberration of tears and chest beating.
It is alleged that instead of missionary work to non-Muslims, the Shia harbor a deep-seated disdain towards Sunni Islam and prefer to devote their attention to winning over other Muslims to their group. There is ongoing violent struggle between Sunnis and Shias in Pakistan. On the other hand, in recent years there has been signification co-operation between the two groups in the Lebanon. And some of the most dynamic developments in Islam today are taking place in Shia-dominated Iran.
-Practical Differences
On a practical level, Shias have a different call to prayer, they perform wudu and salat differently including placing the forehead onto a piece of hardened clay from Karbala, not directly onto the prayer mat when prostrating. They also tend to combine prayers, sometimes worshipping three times per day instead of five.
The Shias also have some different ahadith and prefer those narrated by Ali and Fatima to those related by other companions of the Prophet. Because of her opposition to Ali, those narrated by Aisha count among the least favored. Shia Islam also permits muttah - fixed-term temporary marriage - which is now banned by the Sunnis. Muttah was originally permitted at the time of the Prophet and is now being promoted in Iran by an unlikely alliance of conservative clerics and feminists, the latter group seeking to downplay the obsession with female virginity which is prevalent in both forms of Islam, pointing out that only one of the Prophet's thirteen wives was a virgin when he married them.
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Sunni Accusations against the Shia:
Classic Sunni religious literature is replete with assertions regarding the heterodox nature of the Shia. Some of the more common claims against the Shiites are:
The Shiite belief in Ali accords him divine status, thus contradicting the primary tenet of Islam, the uniqueness of Allah.
The Shiite doctrine of the infallibility (ismah) of the Imams positions them as Prophets along side or, as critics of the Shia claim, even above the Prophet Mohammad. Moreover, Shiite beliefs in the ability of the Imams to intercede are seen as a clear contradiction of the finality of Muhammad.
The Shiites have a Quran that includes verses which are not in the Sunni Quran and that were forged in order to justify Ali's right to succession. In doing so, the Shiites distort the Quran. It is also claimed that the Shiites have forged hadiths in order to justify their doctrines. The Shiites revile the first Caliphs and the Companions of the Prophet who in their eyes usurped the Caliphate that rightfully belonged at that stage to Ali. The Shiites are debauchees who allow temporary marriages. The Shiites practice dissimulation and therefore cannot be trusted even when they propose rapprochement.
There is indeed an official negative attitude towards the Shiites in Saudi Arabia promoted by the Wahhabi. The Wahhabi scholars tend to subscribe to all the traditional criticism of the Shiites, updating them with political content. The Shiites are accused not only of religious deviation and heresy, but of treachery against Arab Muslims. The Shiites are accused of acting against the history of Islam, scheming to destroy the Ummah from inside. The main motifs of these claims are:
Shiism is an invention of the Jews. Wahhabi detractors of the Shia find similarities between Shiite and Jewish or Zoroastrian customs and beliefs. It is said that it was Abdullah bin Saba, a
Jew who, pretending to be a Muslim, coined and propagated the divine right of Ali Bin Abi Talib to the Caliphate as the successor to the prophet Mohammed. The Shiites are a bad influence of non-Arab revolutionary Iran inside the Arab world. Shiite doctrine permits killing a Sunni. The Shiites are acting in accord with a long-range plan to topple Sunni Islam and to take over the Holy Places in the Hijaz. The above motifs are well expressed in the following recent anti-Shiite text from the pro-al-Qaeda website,:
“The threat posed by the Shia to the [Islamic] nation is equal to the threat posed by the Jews and the Christians. They harbor the same ill will against the nation, which needs to protect itself from them and from being deceived by them” They pose a danger not only to Iraq, but to the whole region. If the Shia have influence over Iraq, or if they obtain some kind of autonomy in southern Iraq, they will be so much closer to extending their influence. After all, they exist in considerable numbers in Saudi Arabia, Kuwait, and Bahrain. If these Shia get organized and if their initiatives get support from countries that sponsor them “ Iran, Syria, and Lebanon” it will mean that they have reached advanced stages in their 50-year plan. We also caution against those who advocate befriending the Shia. Such an approach can only cause further harm to the nation. To get close to the Shia is more dangerous than getting close to the Jews, because the animosity of the Jews is well known, while the Shia pretend [to be friendly] and deceive the nation.
Shiite Atitudes towards Sunnis and Wahhabis
The Shiite writings regarding the Shiites-Sunnis conflict are largely defensive. Traditional Shiite beliefs also contain a number of severe charges against the Sunni majority in Islam. These include accusations of Sunni treachery against the fourth Caliph, the Imam Ali, customs such as the burning of effigies of the Caliph Omar, and in Iran, deeply rooted feelings of cultural superiority toward the Arabs.
These beliefs permeate Shiite texts and popular imagery. Nevertheless, traditional Shiite doctrines implicitly accept the Shiite status as a minority within Islam and refrain from positions that would strain the Sunni-Shiite relationship to a point of no return, where the two would irrevocably separate into two religions. An example of this restraint is the Shiite claim that two verses that were originally sent down to the Prophet and prove his choice of Ali as his successor, were deleted from the canonical text of the Quran. Despite the claim, and despite the claim that the actual text of those verses is known, no Shiite sect has re-inserted them into its version of the Quran. It would seem that both Shiites and Sunnis are aware that such an act would create two separate scriptures and even lead to a final separation between two Islams. It also may be interpreted as following the lead of Shiite tradition of submission to the stronger party until the return of the hidden Imam as the Mahdi and the vindication of his believers. One may claim that this in the eyes of traditional Shiite Islam is the example of the Imam Ali who accepted, for the sake of unity, the first three Caliphs despite the fact that he knew that he had been the Prophet's choice, and of his son Hassan who abdicated his claim to the Caliphate for the same reasons.
Hence historically, Shiite animosity towards the Sunni majority of the Muslim world has been much less vehement and widespread than its Sunni correlate and for the most part it has been defensive, aimed at refuting the Sunni charges and defending the Shia against Wahhabi attacks. Some of the main motifs of the Shiite attacks on the Wahhabis are:
Comparing the Wahhabis to the the sect which, in the eyes of both Sunni and Shiite Islam exceeded the limits and caused dreaded internal strife among the early Muslims. Some Shiite polemists even find the Wahhabis worse than the Khawarij in that the former represents corruption and internal strife (fitna).
Implications that the Saudi Wahhabis are uncultured nomads, who after accepting Islam returned from the civilization of al-Medina to the backward ingorance (jahili) of desert life.
Asserting that the Wahhabis are the agents of western imperialism. The Saudi State serves the interests of the Americans and the British (and, of course, Israel) in the Muslim world. The Wahhabis (Saudis) even agreed to hand Palestine to the Jews. This is, in essence, the Shiite version of the Sunni accusation mentioned above regarding Jewish influences over the Shia.
ARTICLE BY GEERT WILDERS The following article is based in a recent declaration by a Dutch politician who was reticent with the Islamic religion and its customs and reflects somehow the way of thinking of a little part of Western observers. We wanted to make a reflection about this issue because this man occupies a relevant position in the Dutch government and there must be some people that agree with his point of view:
“I don't hate Muslims, I hate Islam.” Geert Wilders
This article is about a European politician, who claims ‘to hate the Islam' and calls the Koran a ‘fascist book', which should be outlawed in the Netherlands, like Adolf Hitler's “Mein Kampf”.
According to him “The book incites hatred and killing and therefore has no place in our legal order.” He calls the prophet Mohammed ‘devil' who would have been hunted down as a terrorist these days. Also he would like to introduce a €1000 a year ($1500) excise tax on headscarf wearing.
Geert Wilders is founder of the Dutch Freedom Party (PVV), and he was voted politician of year 2007 by the Dutch political press.
Geert Wilders considers himself as a libertarian. He opposes the Dutch political system, because among other things they tolerate the ‘intolerants' (Muslims), the first article in the Dutch constitution, because it guarantees equality, which according to him should exclude Muslims, but stand out Christians, Jews and human traditions.
He also opposes the EU, because of its strong governmental influence, his expansion projects (Turkey) and he wants to abolish the European Parliament.
Immigrates from non-western countries should be banned for 5 years or paid to leave the Netherlands. They also shouldn't have the right to vote.
He also wants to reunite Flanders and the Netherlands.
He wants to apply Israel's administrative detention in the Netherlands, a practice heavily criticized by human rights groups, which he calls ‘common sense'. ‘We [in the West] are all Israel. Israel is the West's first line of defense.'
Meanwhile he considers Islam as a backward religion. ‘Islam is the Trojan Horse in Europe. If we do not stop Islamification now, Eurabia and Netherabia will just be a matter of time. One century ago, there were approximately 50 Muslims in the Netherlands. Today, there are about 1 million Muslims in this country. Where will it end? We are heading for the end of European and Dutch civilization as we know it.'
He matches Islam to terrorism. His intention was “a debate about freedom of speech and the threat of Islamisation of our Western societies', but his selfish behaviour endangered Dutch soldiers and citizens and provoked and insulted Islamic countries.
Jordan has summoned Wilders to judge, with the film deemed to “incite hatred”. Al-Qaeda issued a call to murder Wilders after its release.
He was also controversially banned from entering the United Kingdom between 12 February 2009 and 13 October 2009, with the Home Office viewing his presence as a “threat to one of the fundamental interests of society”. The ban was overturned after Wilders appealed. He visited the UK on October 16, 2009.
He is also indicted in his own country. The cause is that in a democratic system, hate speech is considered so serious that it is in the general interest to draw a clear line and that “The court also considers appropriate criminal prosecution for insulting Muslim worshippers because of comparisons between Islam and Nazism made by Wilders.”
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