We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time. Find out more Modern Sharīʿah Courts - Oxford Islamic Studies Online
Select Translation What is This? Selections include: The Koran Interpreted, a translation by A.J. Arberry, first published 1955; The Qur'an, translated by M.A.S. Abdel Haleem, published 2004; or side-by-side comparison view
Chapter: verse lookup What is This? Select one or both translations, then enter a chapter and verse number in the boxes, and click "Go."
:
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result

Modern Sharīʿah Courts

By:
Allan Christelow
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Modern Sharīʿah Courts

Sharīʿah courts in the modern world vary from one setting to another. In many places they are limited to family law, but in others their jurisdiction extends to criminal law and the regulation of public behavior. All of these court systems have had to respond to challenges arising from the modern context. These have produced pressure both for the adaptation of Islamic law to global norms, and for a return to the original principles of Islamic law. Thus when a government takes up commitment to change in one direction, it can still face pressures to limit the degree of change. An effective way to explore the range of experiences is to look at individual cases illustrating different distinctive settings.

Algeria: The Dispute over the Codification of Family Law

Once the French had consolidated their control over Algeria, they began the process of centralizing the Islamic court system, and they sought to create a code of family law. The quest for codification began in 1865 and was finally abandoned in 1919. It encountered opposition first from urban legal scholars, led by al-Makki Ben Badis, who thought that it would limit judges’ autonomy, and then from rural leaders fearing a loss of authority in family matters.

After Algeria became independent in 1962, there were again discussions of codification. In 1984 a family law code that appealed to conservative elements was pushed through the National Assembly. Those who supported a progressive vision protested against the code’s relegating women to the status of minors. A key issue was the lack of protection for women’s rights in matters of divorce, especially relating to economic matters. As Algeria faced growing economic problems in the late 1980s, the impact of the code could be seen in the growing number of impoverished divorced women.

This issue and women’s rights was revived by an incident in the oil production center of Hassi Messaoud in 2001. One evening in July a crowd of young men, inspired by a local imam, attacked a neighborhood where single women were living. The imam had claimed that women living without male guardians were violating Islamic law. The women had come to earn money in domestic service or as secretaries to support their families in the coastal regions of Algeria. While local authorities did little to suppress the violence, women in Algerian emigrant communities abroad worked to mobilize global protest to demand greater support for women’s rights within the Algerian legal system.

In 2005 the government finally pushed through reforms of the family code, giving women greater rights to make their own choices in marriage, or in the decision to travel outside the country. Yet for opponents of the 1984 code, these were far from adequate measures.

Saudi Arabia: Adapting to Globalization

When ʿAbd al-ʿAzīz Ibn Saʿūd created the kingdom of Saudi Arabia in 1924 he faced a formidable task: bringing together the relatively cosmopolitan setting of the Hijaz, which had been a part of the Ottoman Empire, with his native Najd, a region where the fundamentalist views of Wahhābī Islam held sway. He was able to establish a modern hierarchical court system in the Hijaz, but the conservative clerics of the Najd rejected such measures. It was not until the reign of King Faisal (1964–1975) that work proceeded to establish a centralized judicial system for the entire country. Presiding over it was the Supreme Judicial Council.

By the 1980s Saudi Arabia was becoming interwoven with the world outside its borders. One strand involved Saudi men going to study or work in the West. Some married Western women. Another strand was the growing number of foreign workers coming in to the kingdom. A third was the globalization of media.

Marriages to Western women often ended in divorce and disputes over child custody. Saudi Sharīʿah courts favored the rights of the father, and both legal and economic conditions made it difficult for divorced Western women to stay in Saudi Arabia. But there were growing protests in the West, and in 2002 the United States Congress sent a mission to bring pressure for change.

Immigrant labor created legal issues ranging from abuse of servants by their employers to whether foreign women working in skilled jobs had the right to be with unrelated men in a public setting. The most serious problems involved female domestic workers who came mainly from Indonesia, the Philippines, and Sri Lanka.

Global media created challenges since news from within the kingdom was easily transmitted to the west and could provoke sharp criticism. In 2004 a recording was made of the head of the Supreme Judicial Council, Salih al-Lahaydan, proclaiming that Islamic principles supported crossing the border into Iraq to fight against the Americans. Shortly after this, in 2005 Crown Prince ʿAbdullah became king and began efforts to reform the judicial system, dismissing al-Lahaydan as head of the Supreme Judicial Council. He then established a High Court to control the judicial system. Its role was to create principles to guide the lower courts—in effect to work toward codification—and thus avoid the kinds of decision that would stir a global backlash.

But at this point new issues took the center of the judicial stage, ones which involved a type of crime that could carry the death penalty yet was impossible to clearly define let alone codify: sorcery. In the modern age it could be personal or electronic. In one case a Lebanese man famous for a television show in which he made predictions of the future was arrested while on pilgrimage to Mecca and accused of sorcery. After pressure from the Lebanese government he was pardoned.

The courts also handled cases of accusations of sorcery made against immigrant workers. Many Saudis still understood problems of health and behavior as being the result of the effects of jinn, or spirits. Sometimes they turned to spirit healers, often women from Africa, to keep jinn under control. And sometimes they brought accusations of sorcery to the courts, often against female domestic servants from South or Southeast Asia.

Thus Saudi judicial policy was caught in a dilemma, with elements of the government pressing for reform, but clerics opposing change and issuing sentences which the reformers had no means to block, above all because they lacked an alternative vision in which an understanding of Islamic law was linked to a scientific understanding of life’s misfortunes rather than a traditional spiritual one.

Nigeria: Islamic Law in a Federal System

Nigeria is a diverse political unit cobbled together by the British in the early 1900s. Islam was the dominant religion in the Northern Region, and Islamic law was respected by British authorities. In Northern Nigeria judicial councils presided over by traditional rulers played a major role in matters of property and criminal law.

It was not until the late 1940s that the question of control from above through a hierarchical court system began to emerge. In 1958 a Muslim Court of Appeal was established for the Northern Region. The regional system was dismantled in 1967 and replaced by a system of smaller states. This brought an end to the Northern Region’s Muslim Court of Appeal and subordination of the region’s Sharīʿah courts to the federal system.

With frustrations arising from an economic downturn in the 1980s, protests in northern Nigeria took on Islamic elements. This made established authorities realize that it might be useful to make concessions on the issue of Islamic law. After a return to elected government in 1999, twelve states in the north implemented the restoration of Islamic law in criminal matters. Several dramatic cases involving charges of adultery against women came before the courts. But in the appeal process judges found problems with the evidence, especially relating to proof that the sexual relation had been consensual, and no executions took place. A thief’s hand was amputated, but he then claimed disability benefits from the state government, discouraging further amputation sentences. Since there was no federal level Islamic court of appeal it became clear that local judicial authorities needed guidance from above that carried religious authority. Thus there emerged the Supreme Council for Sharia in Nigeria (SCSN).

In 2003 a new debate erupted over an issue that illustrated tensions between Muslim northern Nigeria and the wider world. The World Health Organization called for a campaign of polio vaccination in Nigeria, but there was deep suspicion that stemmed from resentments over the American drug company Phizer’s irresponsible behavior in testing a vaccine for cerebrospinal meningitis in 1996. This had resulted in the deaths of eleven children. Rumors about contaminated vaccine were spurred by both popular suspicion and global internet sources. After vaccinations were stopped polio spread from Nigeria to countries as far away as Indonesia.

International organizations encouraged Muslim leaders from northern Nigeria to examine vaccination programs in other Muslim countries. The issue was eventually resolved through discussion in the SCSN, which happened to be headed by a medical doctor, Ibrahim Datti Ahmed. The northern states arranged purchase of the vaccine from Indonesia. The process took time but won public confidence which was essential for the program to succeed.

Indonesia: Between Localization and Globalization

Indonesia is made up of a long string of islands in Southeast Asia. Its population of some 235 million is some 85 percent Muslim, but the Muslim population is diverse, and the Chinese immigrant and native Christian minorities play important roles. After Indonesia gained its independence from the Netherlands in 1949, secular nationalism took a dominant role. But by the 1990s President Suharto began to turn to Islamic movements for support, and issues related to Islamic law gained prominence.

One of these was the status of non-Muslims in Indonesia, both those of Chinese origin and local Christians. In the final years of the Suharto regime, and after his resignation in 1998 in the wake of the Asian financial crisis, there were incidents of violence between Indonesian Muslims and the minorities.

After a period of instability under presidents who had been leaders of Islamic organizations, Megawati Sukarnoputri, leader of a secular political party, was elected president in 2002. Under her leadership Indonesia began to resolve its complex problems. One approach to this was a process of decentralization. In 2005 an agreement was reached granting autonomy to the province of Aceh where there had been a long running insurgency. The agreement allowed the provincial government to extend the rule of Islamic law into criminal matters. In other regions the local government was able to formulate new regulations based on Islamic law. Such local concessions contributed to stability at the national level. At the same time, regulations to clarify and protect the rights of minorities were put in place.

Two important elements in Indonesian Islam are the large numbers of Islamic schools, and the presence of girls in those schools, and of women’s branches in the major associations that support the schools. Some of the schools follow a traditional Islamic curriculum but others have an “integrated” approach, combining Islamic studies with a modern curriculum. This has made it possible for prominent Islamic spokeswomen such as Lies Marcoes-Natsir to emerge in Indonesia, articulating arguments for respect for women within an Islamic framework. Thus as Aceh extended the rule of Islamic law, judges received training to help them understand gender issues.

Conclusion

An examination of these four cases illustrates several challenges facing Islamic court systems around the world. As these states took shape or gained independence from colonial rule during the twentieth century, they worked to establish national governments that ruled over a clearly defined territory in which there would be a uniform system of Islamic law. Yet regional differences persisted within countries, especially large and diverse ones such as Indonesia and Nigeria, and the situation was made more complex by the movement of people between regions. By the early 2000s these countries had become engaged in the process of globalization as more and more people crossed borders between nation states pursuing work or study, seeking political refuge, or joining spouses of another nationality.

One response to these challenges was to pursue a policy of decentralization, allowing greater scope for Islamic law at the local or regional level but avoiding extreme measures through the oversight of national authorities. It has proven more difficult to meet the challenges of globalization. They have been handled largely on a case by case basis, but they point to the need for a systematic approach involving dialogue that crosses national and religious boundaries.

Bibliography

  • Bowen, John R. Islam, Law, and Equality in Indonesia: An Anthropology of Public Reasoning. Cambridge, U.K., and New York: Cambridge University Press, 2003.
  • Christelow, Allan. Algerians Without Borders: the Making of a Global Frontier Society. Gainesville: University Press of Florida, 2012.
  • Commins, David. The Wahhabi Mission and Saudi Arabia. London: I.B. Tauris, 2006.
  • Doumato, Eleanor Abdella. Getting God’s Ear: Women, Islam, and Healing in Saudi Arabia and the Gulf. New York: Columbia University Press. 2000.
  • Harnischfeger, Johannes. Democratization and Islamic Law: the Sharia Conflict in Nigeria. Chicago: University of Chicago Press, 2008.
  • Human Rights Watch. “‘As If I Am Not Human’: Abuses Against Asian Domestic Workers in Saudi Arabia.” 7 July 2008. www.hrw.org/reports/2008/07/07/if-i-am-not-human.
  • International Crisis Group. “Islamic Law and Criminal Justice in Aceh.” Asia Report, No. 117, 31 July 2006. https://www.crisisgroup.org/asia/south-east-asia/indonesia/ islamic-law-and-criminal-justice-aceh.
  • Jeppie, Shamil, Ebrahim Moosa, and Richard Roberts, eds. Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges. Amsterdam: Amsterdam University Press, 2010.
  • Jurquet-Bouhoune, Baya, and Jacques Jurquet. Femmes algériennes: de la Kahina au code de la famille. Paris: Éditions Le Temps des Cerises, 2008.
  • Otto, Jan Michiel, ed. Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present. Leiden, Netherlands: Leiden University Press, 2010.
  • Wadud, Amina. Inside the Gender Jihad: Women’s Reform in Islam. Oxford: One World Publications, 2006.
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result
Oxford University Press

© 2019. All Rights Reserved. Cookie Policy | Privacy Policy | Legal Notice