Fiqh-Ul-Arabic

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The Qur'an asserts that there are innate differences between women and men. Therefore, Islam places different rights over the husband and wife.



Some similar rights which both the husband and wife owe to each other are:



The right to enjoy each other.

The right to inherit from each other.

The right of confirmation of the lineage of their children.

Some rights which the husband owes to his wife are:



The dower (Mahr)

Support

Kind and proper treatment
Marital relations

Privacy

Justice between multiple wives

To be taught her religion

Defense of her honor

Some rights which the wife owes to her husband are:




Being head of the household

To be obeyed in all that is not disobedience to Allah

Marital relations

That she not allow anyone in the house of whom he disapproves

That she not leave the house without his permission

That she protect his property

To be thanked for his efforts

That she can only undertake a voluntary fast with his permission

The first of the four common marriages[citation needed] that existed in pre-Islamic Arabia was marriage by agreement. This consisted of an agreement between a man and his future wife's family. This marriage could be within the tribe or between two families of different tribes.



Some women were forbidden from marrying outside of their tribe and had to either marry another member of the tribe or a stranger who would agree to live with the tribe.



In the case that involved a man and woman of two different tribes, the woman would leave her family and permanently reside with her husband. The children of these marriages were considered part of their father's tribe, unless a different arrangement had previously been made which returned the children to their mother's tribe.



The reason for intertribal marriages was to ensure the protection and possession of the children the couple would produce.[4] Women in intertribal marriages had more freedom and retained the right to dismiss or divorce their husbands at any time. The women had precise rituals they used to inform their husbands of their dismissal, such as this: "if they lived in a tent they turned it around, so that if the door faced east, it now faced west, and when the man saw this, he knew that he was dismissed and did not enter".

Marriage by Mahr was a more traditional marriage practice. These marriages consisted of the groom or groom's father paying the bride "Mahr", to marry them. (Mahr is very important in Islamic marriage. Allah has used the word "faridah" for it.[better source needed] It means something fixed, decided and obligatory.[better source needed] It is obligatory on the husband to pay mahr to his wife unless she expressly by her own will without any pressure forgives him or returns the amount of mahr to him. Mahr belongs to the wife and it is to be given to her only. It is not the property of her parents or her guardian. No one can forgive the husband to pay the Mahr except the wife herself or, in case she did not go to her husband and the marriage ended without consummation, then in that situation her guardian can also forgive the mahr on her behalf. If a husband dies without paying mahr to his wife, it will be an outstanding debt on him and it must be paid before the distribution of his inheritance among his heirs. It helps the women during the time of divorce).

Marriage by capture, or "Ba'al", was a common pre-Islamic marriage practice. Most often taking place during times of war, marriage by capture occurred when women were taken captive by men from other tribes and placed on the slave market of Mecca. From the slave market these women were sold into marriage or slavery. In captive marriages men bought their wives and therefore had complete control over them. Women in these marriages had no freedom and were subjected to following their husband's orders and bearing his children. These women became their husbands' property and had no right to divorce.

Marriage by inheritance was "a widespread custom throughout Arabia, including Medina and Mecca". This practice involved the possession of a deceased man's wives (When a man died, his son inherited all his wives except his own mother) being passed down to his son. In such a case, the son has several different options. He could keep them as his wives, arrange a marriage by purchase for them to enter into from which he would receive a dowry for them, or he could simply dismiss them. In these cases, as in the majority of marriage practices at this time, the woman had little or no rights and was subjected to follow the orders or her inheritor.

Nikkah

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Al-Azmeh



Islamic law is the third major type of law, which covers the whole thing, counting from the norms of our daily life to the most sophisticated business issues. Islamic law was emerged in seventh century A.D.4 and spread throughout the Arabian empire. It was widespread even in most parts of central and middle-eastern Asian countries before the introduction of westernization. Today, in several countries such as Saudi Arabia, Bangladesh, Gambia, Libya, Mauritania, Morocco, Oman, and Yemen, Islamic jurisprudence is in power. Most recently, some countries, such as Afghanistan, Iran, Sudan and, increasingly, Pakistan, have moved to Islamic models. This shows how mighty influence Islamic law has.



When it comes to the source of religious law, we could say that they are the books and sayings taken by divine power or religious leaders like prophets and are called as sharia (meaning ‘the path to follow’ or equally referred as ‘Syariah’) as a whole. And, the Quran, the Sunna, judicial consensus, and analogical reasoning are considered to be the four fundamental sources of law5 in Islamic law.



- The Quran (literally means Reading) is a sacred book of Muslims, which is the compilation of Allah’s words. The directives written in Quran are more general, so other sources of Islamic law base their main analogy on Quran.

- The Sunna (paths taken by prophet) comprises full explanation of Mohammed’s behavior, deeds, and sayings. Other religion followers later compiled all of the prophet’s actions and it is called Hadith. Yasin Dutton identifies it as a ‘Quran in action’.

- Judicial Consensus (Ijtihad like Ijma) is established by ‘a common religious conviction’ of major traditional legal scholars/jurists1

- If those sources lack of solving a problem, the fourth source, analogical reasoning (Qiyas al Fuqaha) will be used in judicial processes. The religious leaders such as khalifa / amir who have enormous authority and flexibility to form the rules and regulations will conduct analogical reasoning. That adds another dimension to the adaptability of Islamic law.



In addition to the above sources, the practices of the Khulafa-e-Rashidun2 (the first four rulers of Islam), the decisions of the judges and the customs of the people are also considered sources of Islamic law in the cases, which are not given or specified in the Quran and the Sunnah.



Well, if you look at the statistics of the world, you will notice that 20% of world population is Muslim and 35 nations have Muslim majority (of which 20 nations have 85% Muslim population) and another 20 nations have significant Muslim minority. That means that religion has a true meaning and influence on majority. In Turkish, there is a proverb: “reason has one way wisdom gives same one way”. That means the wisdom, internal personal integrity, frankness, fairness, truthfulness, justice and honesty which are the right underlying features of Islamic law will produce the same laws as other types of laws do.



Although there is a clear different inclination towards law between these two systems, we cannot judge whether one is superior to the other.



Comparison between Common law and Civil law is linked to their different history of evolution. Common law is considered to be found and enforced by the English people. Civil law on the other hand is rooted far to the legal actions of ancient Romans. That is why it is called as a Roman law in lieu.



The main difference between these two legal systems, however, is the use of case law (stare decisis) and codifications. Common law puts case law as the first priority, whereas civil considers it as a supplementary. Codifications in common law also do not have the same role as they do in Civil law.



Unlike civil law, in common law, the appeals will be rarely taken, mainly because of the certainty of case law. Every case will be fully detailed and will be in power in later cases. However, the fully detailed process sometimes causes many difficulties in exploitation and makes the law rather stiff than flexible.



The sources in both systems could not be easily altered. However, the long process of enacting a law will play as a basis for the long continuity of the law itself, because, any law will face obstacles, and severe criticism before being inserted to the system. That makes both legal systems complete and perfect.



Islamic law as we have mentioned is not a system of law, it has rather more complicated and mixed with the deep morality of people. Unlike common or civil legal systems, Islamic law is the toughest one when it comes to bring new regulations and newly identified norms. Islamic law identifies deception and dishonesty as a “serious moral wrong”1 whereas in civil/common law it is mended by paying compensation. This of course effects on the trade relations between the merchants. The contracts between the individuals and the treaties between authorities will be dealt or approached differently in each legal system. In Civil law, written form of agreement is a chief immune of the assurance, but in common-law or Islamic law, verbal communication will also be counted as a main form of evidence.2 The difference in these two legal traditions is very huge. For instance, Islamic law could be differently imposed to different people depending on their religious beliefs whereas common or civil law systems are equal for every people regardless of their religious preference.



In Islamic law, the punishment for the crime is much severer than in Common or Civil law. For instance, for robbery, in Islamic countries, they cut off the guilt’s hand, whereas in civil/common law countries, the robber will be made to pay compensation and sentenced for a few years. Furthermore, for fornication, the guilty people will be lashed 100 times, or even be put to death. False accusation of breaching chastity, drinking alcohol, you will get the same credit (80 and 40 lashes respectively). In addition, in Islamic law, unlike civil/common laws, the freedom of religion is prohibited and controlled very strictly. The apostasy of men will be punished by death, or the apostasy of women will be imprisonment. These offences are called as Hudad (violation against God’s law) and will be prosecuted and punished by the state. All the citizens have to obey these mandatory regulations. Quessas offences (violation against other people: specified in Quran) and Ta’azir offences (violation against other people: not specified in Quran) are the other two types of offences which will be punished differently from civil and common-law countries.



In Islamic countries, law is considered absolute and constant, whereas it is much more flexible, changeable and negotiable in Civil/Common laws. One of the main reasons for this is the different origins of law. In Islamic law, God created the law, in Civil/Common law, people made legislations. That consequently leads a clear separation between religion and law in westernized legal systems, whereas they are one united notion in Islamic law. Another difference between these two types of legal traditions is the categorization of law. In Islamic law, the type of punishment will categorize the crimes; in western legal system, crimes will be categorized due to the severeness of the harm. The Quran, in Islamic law, outlawed prevalent customs such as idolatry, gambling, liquor, promiscuity, unbridled polygamy, usury, etc.1 but in most civil/common law countries, it has become legalized.



“The law must be stable and yet it must not stand still.”



Roscoe Pound



Although there are clear differences in the implementation of law between these systems, still each of them plays the same role and possesses the same functions. All of these systems are effective in their place.



International law has sufficient power almost in every civilized country. Nevertheless, if we look at the origins of international law, we will notice that international law is derived from the principles, norms and procedures established in domestic law. That consequently makes a first step in convergence of laws. Although civil law countries are the dominant countries in making an international law, Common or Islamic law countries are equally obliged to obey it.



Today there are many common types of law being used among those countries that have different legal systems.



Ta’azir offences in Islamic law, for example, will be mostly codified, because the existing sources of law could not be used to solve the problem given. That means there is something that co-exists between Islamic law and civil law.



Common law countries has begun to use legislation somehow, Civil law countries are using case law as an interpretation. There is a great tendency towards merging legal traditions. And of course, all of these amalgamations are for the good.



“Law is nothing unless close behind it stands a warm, living public opinion.” Wendell Phillips



Yet, there is something to do in Islamic law. (Though the Islamic law covers everything) it would be much better if Islamic countries will also accept equality in gender, wealth and power and there has to be some adaptations to social change and modern technologies, (we would proudly call it honest facing to globalization). Some Islamic countries are still facing some problems. For instance, Bahrain these days is on the brink of infrastructural change in the legal regulation of the country. In addition, this could be resolved with the gracious look over other foreign legal systems. Thus, convergence, integration and harmonization of these systems will be of much effectiveness, although it cannot be taken fully as all of them have different traditions, histories, ideology, fundamental moral values1



Weighing everything up, I would like to say that the three legal systems, Common, Civil and Islamic Legal Systems, are being effectively used in different countries. No any other system could be substituted to the other one abruptly. The public has already accepted it. However, taking a step to converge some parts of these systems would be a best idea to implement and to develop the existing sources of law to make applicable to all cases.

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Sharia stands for Islamic or sacred law. It is an Arabic word meaning “the way” or “the path to water.” For centuries, Muslim scholars have given a broad definition of Sharia reflecting the diversity of interpretations on how Muslims have attempted to best understand and practice their faith.



The general definition of Sharia as understood by most American Muslims is as follows:



Sharia represents how practicing Muslims can best lead their daily lives in accordance with God’s divine guidance. It may be generally defined as the Islamic law revealed by God to the Prophet Muhammad. That divine law was then interpreted by Muslim scholars over the centuries. Among the primary aims of the Sharia are the achievement of justice, fairness and mercy.



The five major goals of the Sharia are the protection of sound religious practice, life, sanity, the family, and personal and communal wealth. The acknowledgement of sound local customs throughout the world is one of the five basic maxims of the Sharia according to all Islamic schools of law.



Sharia is overwhelmingly concerned with personal religious observance such as prayer and fasting. Just as many observant Jews follow Halakha, many observant Muslims follow some aspect of Sharia.
Within Islam, there are four principle sources of Sharia, which are accepted by consensus. They are (1) the Qur’an, Islamic sacred scripture, which Muslims believe God revealed to humanity through the Prophet Muhammad, (2) the Sunna (or Prophetic model of behaviour recorded in a literature called the Hadith), (3) the consensus of religious scholars, and (4) analogy. Many regional and local customs are also accepted as a source of the Sharia when they are consistent with the general good. Thus, the Sharia mandates that Muslims follow the good and generally wholesome customs of the lands in which they live.



The revealed and other sources of the Sharia require interpretation for the creation of substantive law. The process of legal interpretation is called “fiqh,” which means understanding. It requires trained scholars and is similar to the roles of religious scholars in working out the details of Rabbinical law in Judaism. Islam has a number of valid traditional schools of law, each of which constitutes a distinctive methodology in deriving the law from its sources and applying it to concrete situations. Each school offers a vast body of rulings and opinions. Islamic law is one of the richest sources of Islamic civilization through the ages and must be applied appropriately to new times and places.

Within Islam, certain interpretations and applications of Sharia have changed over time and continue to change today. There is no one interpretation called “Sharia.” A variety of Muslim communities exist around the world, and each understands Sharia in its own context. No single official document encapsulates Sharia.



Since interpretation is a human process, it has always been pluralistic, prone to error and dependent on human understanding, no matter the religion in question. Interpretation is also subject to conditions and times specific to a particular community of believers. Interpretations may vary significantly from country to country and community to community. This explains the great variety of ways Muslims have practiced their faith all over the world for the past 1400 years.