Overview Of Shari’a and Prevalent Customs In Islamic Societies - Divorce and Child Custody
Submitted January, 2004
- 1.0 - Sources of Shari’a
- 2.0 - The Emergence of Islamic Schools of Thought
- 3.0 - Geographical Dispersion of the Juristic Schools
- 4.0 - The Influence of Shari’a on Modern Laws
- 5.0 - Marriage
- 6.0 - Divorce
- 7.0 - Recognition of Divorces Obtained in Secular or Foreign Courts
- 8.0 - Child Custody Following Divorce
- 9.0 - Gender Relations and Restrictions on Women
- 10.0 - Children and the Parent-Child Relationship
- 11.0 - Custody Abduction to the Islamic Countries
Shari'a, the Arabic term for Islamic law, first appears in the Quran to mean "path" or "way." A divine law considered the expression of God's will and justice, Shari'a governs all aspects of life. 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.
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. 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. 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.
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. 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. 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. While the Shia held that leadership should remain in the Prophet's family, the Sunnis believed that leadership could pass to other worthy individuals. 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. 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.
Hanafi School: Of the Sunni schools, the Hanafi school
is the most widespread and widely applied in modern Shari'a-based legislation. It is dominant among the Muslim populations of
Hanbali School: The Hanbali school is the juristic school
officially applied in
Maliki School: Today, the Maliki school is widespread
in North and West Africa,
Shafii School: The Shafii school has a following in
Ithna-Ashari School: Most Shias follow the Ithna-Ashari
school, which is the official school of Iran and has a following in
Zaidi School : Followers of the Zaidi school are found
Ismaili School : The Ismaili school has followers in
Shari'a has influenced the legal systems of modern Islamic nations to differing
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. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.