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Overview Of Shari’a and Prevalent Customs In Islamic Societies - Divorce and Child Custody

By Kristine Uhlman

UmHani

Submitted January, 2004

Contents

[Part 1] [Part 2] [Part 3] [Part 4]

Shari'a, the Arabic term for Islamic law, first appears in the Quran to mean "path" or "way."[1] A divine law considered the expression of God's will and justice, Shari'a governs all aspects of life.[2] Its provisions set forth rules regarding marriage, divorce, child custody, and many other matters of family and community relations. Although a number of Islamic countries have revised their legal systems to incorporate other secular systems, Shari'a continues to influence and shape the family laws of many such nations. It is important to understand the basis of the Islamic family structure when approaching custody disputes, and to understand the abduction risk factors unique to the Islamic world.

1.0 - Sources of Shari'a

Shari'a is derived from four principle sources: the Quran, the sunna, the ijma, and qiyas. The main source of Shari'a is the Quran, a collection of revelations the Prophet Mohammed received from God. However, while it sets forth certain fundamental legal rules, the Quran does not provide specific legal prescriptions in many areas.[3] For this reason, Islamic jurists looked to other sources to compile a detailed body of law. The sunna, or the practice, conduct, and tradition of the Prophet, is the second most authoritative source of Shari'a.[4] If neither the Quran nor the sunna provides guidance on a given point, jurists generally look to ijma, or consensus among Islamic scholars. If all the scholars of a certain era agree on the legal point at issue, their view is authoritative. In the event that none of these three sources provides the necessary legal authority, a jurist may resort to qiyas, or reasoning by analogy, and apply an accepted principle or assumption to arrive at a rule of law.[5]

2.0 - The Emergence of Islamic Schools of Thought

During the life of the Prophet Mohammed, legal questions were decided without controversy based on revelations he received from God, or on his personal opinion subsequently confirmed or corrected by revelation. Following his death, however, different schools of legal thought developed.[6] While jurists generally agreed on the four sources of law, their views differed regarding textual interpretation, the definition of consensus, and the value that should be attached to analogy.[7] The two main juristic schools, the Sunni and Shia schools, developed as a result of a political dispute over the succession of the Prophet after his death.[8] While the Shia held that leadership should remain in the Prophet's family, the Sunnis believed that leadership could pass to other worthy individuals.[9] This political division gave rise to philosophical differences between the two sects. Over time, different schools of thought developed within the Shia and Sunni sects. Today, Sunnis comprise the majority of Muslims. Although many Sunni juristic schools existed in the past, only four main schools have survived: the Hanifi, Hanbali, Maliki, and Shafii schools.[10] Shiism consists of three main schools: the Ithna-Ashari (Imami, or Twelve Shias), Zaidi, and Ismaili schools. While the different schools agree on certain fundamental legal issues, their various interpretations and views of the sources of Shari'a have given rise to different rules on many points of law.

3.0 - Geographical Dispersion of the Juristic Schools

3.1 - Sunni Schools

Hanafi School: Of the Sunni schools, the Hanafi school is the most widespread and widely applied in modern Shari'a-based legislation.[11] It is dominant among the Muslim populations of Turkey , Afghanistan , Pakistan , India , China , Bangladesh , Iraq , Albania , the Balkans, and the Caucasus.[12] Syria , Egypt , and Jordan have based their family laws on Hanafi jurisprudence.[13]

Hanbali School: The Hanbali school is the juristic school officially applied in Saudi Arabia and Qatar .[14] It also has followers in other parts of the Arabian Peninsula, Jordan , Syria , Egypt and Iraq .[15]

Maliki School: Today, the Maliki school is widespread in North and West Africa, Egypt , Sudan , and eastern-central Arabia.[16] Morocco , Algeria , and Kuwait have adopted the Maliki school as the basis of their family laws.[17]

Shafii School: The Shafii school has a following in Jordan , Palestine, Lebanon , Syria , Yemen , Egypt , Indonesia , Brunei , the Philippines , Darussalam, Malaysia , Singapore , Sri Lanka , Thailand , and the Maldives .[18]

3.2 - Shia Schools

Ithna-Ashari School: Most Shias follow the Ithna-Ashari school, which is the official school of Iran and has a following in Lebanon , Syria , Iraq , Afghanistan , and Pakistan .[19]

Zaidi School : Followers of the Zaidi school are found mainly in Yemen .[20]

Ismaili School : The Ismaili school has followers in India , Pakistan , Southern and Eastern Africa, and in certain regions of the Middle East.[21]

4.0 - The Influence of Shari'a on Modern Laws

Shari'a has influenced the legal systems of modern Islamic nations to differing degrees. Turkey , which has a predominantly Hanifi Sunni population, has a secular legal system based on European models. However, the family laws of Saudi Arabia ,[22] Yemen , Libya , Sudan , and most Arab Gulf States are derived solely from Shari'a.[23] Other countries such as Egypt , Kuwait , Morocco , Jordan , Iraq and Syria have family law legislation known as "personal status codes" that are based largely on Shari'a.[24] Many of these personal status codes do not follow exactly the teachings of any specific juristic school. In certain areas, legislation may borrow from the teachings of different schools or modify the traditional Shari'a rules. It is therefore important to have local counsel to obtain advice regarding the laws of a particular jurisdiction. For the sake of simplicity, the discussion contained in this text presents only a general overview of certain traditional rules of the main juristic schools.

Continue to Part 2 -[Part 1] [Part 2] [Part 3] [Part 4]

The information relating to the legal requirements of specific foreign countries is obtained from past experience and is not necessarily authoritative. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. The author appreciates the editorial support and review of this article by the Washington office of Baker Botts L.L.P.

About the Article: Prepared for the California State Bar 2004 Winter Section Education Institute / International Law / Family Law Workshop on International Custody Abduction: Non-Hague, Islamic Countries. Reprinted with permission.

Copyright © 2004 Kristine Uhlman. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder, except as follows: You may link this article to your website, either directly or through an ExpertLaw Library index page, provided your link does not depict this article, its author, or expertlaw.com in a negative manner.