A brief background of Islamic Law
In order to appreciate the legal arguments on the Freedom of Religion within the Islamic Law, some preliminary matters have to explained first.
1. Islamic Law and Shar’ia Law
Literally, the “Shari’a”(41) means “the straight path”(42). De Seife describes the Shar’ia as the law of Islam(43).
Mayer notes(44) that in the Universal Islamic Declaration of Human Rights (UIDHR)(45), the phrase “the Law” refers to the Shar’ia, and that the Shar’ia is defined in the Explanatory Notes section of the UIDHR as:-
“the totality of ordinances derived from the Quran and Sunnah(46) and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence”.
As such, Shar’ia Law is the Islamic Law. When the said reservations make reference to “Islamic law” or subject to the constitution or domestic laws which are based on the Muslim religion, it is in fact referring to the Shar’ia Law.
Brown notes that although Shar’ia is often translated as Islamic Law, it encompasses a much broader range than just a legal system – it also reflects the morals and religious teaching of Islam
2. Sources of the Shar’ia Law
De Seife(48) refers to George M. Baroody’s Shar’ia: Law of Islam(49) for the sources of the Shar’ia. Basically, there are four sources which are as follows:-
(a) The Quran – God’s own words told to the Prophet Muhammad;
(b) The Sunna – a record of what the Prophet said and did. A compilation of these are the Hadith;
(c) The Ijma – consensus of scholars on problems whose solutions are not found in (a) and (b) above; and
(d) The Qiyas – reasoning by analogy to be applied to problems not covered by the other sources.
It should be noted therefore that there is no one compilation of the Shar’ia Law like a written Constitution or a Declaration or a Statute. As will be seen later, this will result in a lack of consensus on certain matters. This also resulted in the establishment of “different theological or juridical schools” within the orthodox Muslim Community, four of which have survived i.e. the Hanafi school, the Maliki school, the Shafi’i school and the Hanbali school(50)
3. Definition of a Muslim
De Seife comes up with this definition - “Islam means submission to the will of God. A Muslim is one who submits to the will of God”(51).
Pearl and Menski in their book(52) noted that the definition of a Muslim is “a matter of religion than of law”. They find it is a combination of belief and practice(53).
As such, it is a matter of the will. A person cannot therefore be “born into the faith”.
Having said that, two Judges from Pakistan found great difficulty in finding a definition of what is a Muslim(54). Justice Muhammed Munir and Justice Kayani observed that the definition provided by various ulama (teachers of the faith) in Pakistan differ significantly.
Abdullah Saeed comments that “If the ulama of Pakistan could not agree on the definition of a Muslim, the difficulties of arriving at a universally acceptable definition of ‘apostasy’ and ‘apostate’ are obvious”(55).
4. How does Islam view children
Pearl observes(56) that under Islamic Law, a child has no legal capacity in Islamic law(57). There seems to be 3 different stages in the life of a minor. The first stage, a child is totally incapable of anything. Above that age, he attains perfect understanding and can participate in legal acts but subject to interdiction by the guardian if it is in the best interest of the minor. Finally, after a certain age, there will no longer be any interdiction.
Siraj Sait(58) notes that under classical Islamic formulations, the end of childhood is marked by the first signs of puberty. In case of doubt, the recognise age of manhood is 15 years, although some schools prefer 18 years.
According to the UIDHR(59), the child has “the right to be maintained and properly brought up by its parents”. Further it is provided that it is “forbidden that children are made to work at an early age or that any burden is put on them which would arrest or harm their natural development.”
Article 7 of the Cairo Declaration on Human Rights in Islam(60) provides that “every child has rights due from the parents, society and the the State to be accorded proper nursing, education and material, hygienic and moral care.”
As such, a child is viewed as one who is in need of protection and nurturing. There however do not seem to be any view that a child possess any of the participatory rights that are included in the CRC.
_________________________________
(41) Including the variations eg “Syariah”, “Shar’iah”, “Shar’ia”
(42) Used in the Quran, eg Quran 1:6 “Show us the straight way”
(43) De Seife, RJA The Shar’ia – An Introduction To The Law of Islam Austin & Winfield, Publishers 1994, at pg 1
(44) Ann Elizabeth Mayer Islam and Human Rights – Traditions and Politics Westview Press 1999 at pg 76-77
(45) See the following website: http://www.alhewar.com/ISLAMDECL.html
(46) For definition, see below
(47) Nathan J. Brown Islamic Constitutionalism in Theory and Practice in Cotran, Eugene and Sherif, Adel Omar (Eds) - Democracy, the Rule of Law and Islam Kluwer Law International 1999
(48) See note 43 above at pg 25 - 34
(49) Shar’ia: Law of Islam Aramco World, November – December 1966, pg 27
(50) See note 43 above, pg 36
(51) Ibid at pg 5
(52) Muslim Family Law (3rd Edn) Sweet & Maxwell Ltd 1998
(53) A combination of the belief in the Islamic Creed and the practice of what is commonly known as the 5 Pillars of Islam, namely to recite the creed, worship, give alms, fast and pilgrimage
(54) See Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1935, Lahore: Superintendent of Government Printing, 1954. The issue arose when 2 groups of Muslims accused each other of unbelief and labeled the other side as non-Muslims
(55) Abdullah Saeed and Hassan Saeed Freedom of religion, apostasy and Islam Aldershot: Ashgate 2004, pg 50
(56) In his article, A note on children’s rights in Islamic law found in Children’s Rights and Traditional Values Douglas, G and Sebba, L (Editors), Dartmouth Publishing Company Limited 1998
(57) This is based on the Islamic principle of ‘akl (reason). M. Siraj Sait agrees with this in his article – see note 3 above
(58) See note 3 above, pg 42
(59) See note 45 above, at Article XIX(d)
(60) Adopted by the Organisation of Islamic Conference in Cairo, Egypt on 5 August 1990
1. Islamic Law and Shar’ia Law
Literally, the “Shari’a”(41) means “the straight path”(42). De Seife describes the Shar’ia as the law of Islam(43).
Mayer notes(44) that in the Universal Islamic Declaration of Human Rights (UIDHR)(45), the phrase “the Law” refers to the Shar’ia, and that the Shar’ia is defined in the Explanatory Notes section of the UIDHR as:-
“the totality of ordinances derived from the Quran and Sunnah(46) and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence”.
As such, Shar’ia Law is the Islamic Law. When the said reservations make reference to “Islamic law” or subject to the constitution or domestic laws which are based on the Muslim religion, it is in fact referring to the Shar’ia Law.
Brown notes that although Shar’ia is often translated as Islamic Law, it encompasses a much broader range than just a legal system – it also reflects the morals and religious teaching of Islam
2. Sources of the Shar’ia Law
De Seife(48) refers to George M. Baroody’s Shar’ia: Law of Islam(49) for the sources of the Shar’ia. Basically, there are four sources which are as follows:-
(a) The Quran – God’s own words told to the Prophet Muhammad;
(b) The Sunna – a record of what the Prophet said and did. A compilation of these are the Hadith;
(c) The Ijma – consensus of scholars on problems whose solutions are not found in (a) and (b) above; and
(d) The Qiyas – reasoning by analogy to be applied to problems not covered by the other sources.
It should be noted therefore that there is no one compilation of the Shar’ia Law like a written Constitution or a Declaration or a Statute. As will be seen later, this will result in a lack of consensus on certain matters. This also resulted in the establishment of “different theological or juridical schools” within the orthodox Muslim Community, four of which have survived i.e. the Hanafi school, the Maliki school, the Shafi’i school and the Hanbali school(50)
3. Definition of a Muslim
De Seife comes up with this definition - “Islam means submission to the will of God. A Muslim is one who submits to the will of God”(51).
Pearl and Menski in their book(52) noted that the definition of a Muslim is “a matter of religion than of law”. They find it is a combination of belief and practice(53).
As such, it is a matter of the will. A person cannot therefore be “born into the faith”.
Having said that, two Judges from Pakistan found great difficulty in finding a definition of what is a Muslim(54). Justice Muhammed Munir and Justice Kayani observed that the definition provided by various ulama (teachers of the faith) in Pakistan differ significantly.
Abdullah Saeed comments that “If the ulama of Pakistan could not agree on the definition of a Muslim, the difficulties of arriving at a universally acceptable definition of ‘apostasy’ and ‘apostate’ are obvious”(55).
4. How does Islam view children
Pearl observes(56) that under Islamic Law, a child has no legal capacity in Islamic law(57). There seems to be 3 different stages in the life of a minor. The first stage, a child is totally incapable of anything. Above that age, he attains perfect understanding and can participate in legal acts but subject to interdiction by the guardian if it is in the best interest of the minor. Finally, after a certain age, there will no longer be any interdiction.
Siraj Sait(58) notes that under classical Islamic formulations, the end of childhood is marked by the first signs of puberty. In case of doubt, the recognise age of manhood is 15 years, although some schools prefer 18 years.
According to the UIDHR(59), the child has “the right to be maintained and properly brought up by its parents”. Further it is provided that it is “forbidden that children are made to work at an early age or that any burden is put on them which would arrest or harm their natural development.”
Article 7 of the Cairo Declaration on Human Rights in Islam(60) provides that “every child has rights due from the parents, society and the the State to be accorded proper nursing, education and material, hygienic and moral care.”
As such, a child is viewed as one who is in need of protection and nurturing. There however do not seem to be any view that a child possess any of the participatory rights that are included in the CRC.
_________________________________
(41) Including the variations eg “Syariah”, “Shar’iah”, “Shar’ia”
(42) Used in the Quran, eg Quran 1:6 “Show us the straight way”
(43) De Seife, RJA The Shar’ia – An Introduction To The Law of Islam Austin & Winfield, Publishers 1994, at pg 1
(44) Ann Elizabeth Mayer Islam and Human Rights – Traditions and Politics Westview Press 1999 at pg 76-77
(45) See the following website: http://www.alhewar.com/ISLAMDECL.html
(46) For definition, see below
(47) Nathan J. Brown Islamic Constitutionalism in Theory and Practice in Cotran, Eugene and Sherif, Adel Omar (Eds) - Democracy, the Rule of Law and Islam Kluwer Law International 1999
(48) See note 43 above at pg 25 - 34
(49) Shar’ia: Law of Islam Aramco World, November – December 1966, pg 27
(50) See note 43 above, pg 36
(51) Ibid at pg 5
(52) Muslim Family Law (3rd Edn) Sweet & Maxwell Ltd 1998
(53) A combination of the belief in the Islamic Creed and the practice of what is commonly known as the 5 Pillars of Islam, namely to recite the creed, worship, give alms, fast and pilgrimage
(54) See Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1935, Lahore: Superintendent of Government Printing, 1954. The issue arose when 2 groups of Muslims accused each other of unbelief and labeled the other side as non-Muslims
(55) Abdullah Saeed and Hassan Saeed Freedom of religion, apostasy and Islam Aldershot: Ashgate 2004, pg 50
(56) In his article, A note on children’s rights in Islamic law found in Children’s Rights and Traditional Values Douglas, G and Sebba, L (Editors), Dartmouth Publishing Company Limited 1998
(57) This is based on the Islamic principle of ‘akl (reason). M. Siraj Sait agrees with this in his article – see note 3 above
(58) See note 3 above, pg 42
(59) See note 45 above, at Article XIX(d)
(60) Adopted by the Organisation of Islamic Conference in Cairo, Egypt on 5 August 1990
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