There is a perception that many Muslim-majority countries have legal systems governed entirely by Islamic law (also commonly referred to as Shariah). This is the case in a small number of countries. However, most Muslim-majority countries have mixed systems of law incorporating elements of Islamic law into common law or civil law frameworks, and many others have entirely secular legal regimes.
There are three types of Islamic law systems: classical, mixed, and secular.
Classical
Countries adhering to the classical model of Islamic law either incorporate Islamic law as their common law, have legal codes based completely or partly on Islamic legal principles, or invoke Islamic law if there is no relevant controlling statute.
- Countries following this model include Saudi Arabia, Iran, and the Maldives.
- The state adopts Islamic laws derived from the Quran and Sunnah. These national laws may or may not be codified, but typically are based on Islamic legal principles governing civil, criminal, and personal status disputes.
- Legal provisions may be similar to those in secular countries, particularly for emerging areas of law, science, and technology.
- Islamic law may be interpreted in parallel by both judges (empowered by the ruling government to decide legal cases) and Islamic law scholars.
The Difference Between Judges and Scholars
Qadhis usually serve as the acting judge in a case, taking on a role similar to judges in secular legal systems. When required to apply Islamic law to a matter, Qadhis tend not to issue opinions on broad areas, but instead deduce rules that apply to the specific case before them. Qadhis are usually trained in civil, criminal, and Islamic law at public and private universities.
Ulema are religious scholars trained in Islamic schools and seminaries. Depending on their training and expertise, they may issue fatwas or legal opinions to help resolve disputes. Ulema usually operate independently of the state but may be called on to provide an opinion that can be applied by a Qadhi. The status of Ulema and the binding nature of their opinions varies depending on the country. Their opinions can be extremely influential among Muslims, even if not formally enforceable by the state.
In Saudi Arabia, Islamic law applies directly as the common law of the country. The Saudi legal system is overseen by the King, who serves as the final court of appeal and exercises the power of pardon. There are two types of court structures, each with courts of first instance, appeals, and final appeal. One is the Sharia Court system and the other is the Board of Grievances. Courts within the Board of Grievances system have jurisdiction over administrative matters as well as cases brought by and against the government. In recent years, Saudi Arabia has begun to codify many Islamic laws and rulings into statutes and royal orders. Historically, they were uncodified, and judges relied upon scholarly text. Interest is strictly forbidden under Islamic law, and Saudi banks are not permitted to charge interest. Although banks in some Islamic countries do charge interest, referred to as a “commission” or “service charge,” these transactions are not legal in Saudi Arabia. Courts and other tribunals do not award interest in any form, but contracts containing interest provisions are severable.
The head of Iran, the Supreme Leader, is required to be an Islamic jurist. He is elected to leadership by the Assembly of Experts, a deliberative body of publicly elected officials. The Supreme Leader appoints the head of the judiciary who oversees judicial administration. Iran’s legal system is inquisitorial; courts enforce and apply codified law. First instance courts are separated into civil, family, and criminal divisions. There are intermediate appellate courts, and a supreme court. Specialized courts include military, clergy, administrative, and arbitration courts. The Revolutionary Courts adjudicate crimes against national and international security, conspiracies against the government, spying, smuggling, narcotics, and certain financial crimes.
Mixed
Countries with mixed systems incorporate Islamic law into legal statutes. The constitution may require that laws do not violate Islamic principles, but the state may also have laws incorporating customary law or non-Muslim legal principles.
- Countries following this model include: Egypt, Iraq, Syria, Afghanistan, Nigeria, Algeria, Morocco, Indonesia, Malaysia, the Philippines (BARMM), and Mali.
- Secular civil and criminal codes may be influenced by Islamic law or drafted so as not to violate Islamic legal principles.
- Personal status laws (addressing inheritance, marriage, divorce, and custody) are typically regulated by Islamic law. Many mixed-Islamic law systems recognize the religious law of other faiths, including Christian, Jewish, and various denominations within Islam.
- Islamic law may be interpreted in parallel by both judges (empowered by the ruling government to decide legal cases) and Islamic law scholars.
- The application of personal status laws varies on a country-by-country basis. Generally, personal status laws are not codified entirely, requiring the application of uncodified Islamic rulings. These rulings are based on the country’s dominant Islamic school of thought, or the school of thought commonly adhered to by the parties to the dispute. In cases where parties abide by different schools of thought, judges may turn to Islamic scholars or scholarship to identify and determine the applicable law.
In Egypt, personal status laws are guided by the Hanafi school of jurisprudence for Muslim citizens; non-Muslim citizens apply the laws of their respective religions that govern such matters.
Nigeria’s legal system is a hybrid of English common and statutory law, customary law, and Islamic Law. Its constitution prohibits the federal and state governments from establishing a state religion but gives the country’s thirty-six states considerable autonomy to establish judicial systems that enforce local religious and customary practices. The secular court system governs all civil and criminal cases. There are also customary and Islamic (Sharia) courts which may serve as first instance courts in parts of the country (mostly the northern states). The jurisdiction of the Sharia Courts in northern Nigeria is limited to Muslims, though non-Muslims may consent to the jurisdiction of a Sharia Court. Rulings by these courts are subject to review by the common law courts and may be appealed in the secular court system.
Malaysia’s federal system incorporates secular common law, Islamic law, and customary law. Islamic law is regulated by the states. Most states have Islamic law (“Syariah”) courts with jurisdiction over Muslims for the adjudication of cases involving personal status, family law, and minor criminal offenses (those subject to smaller fines and no more than three years imprisonment). Syariah courts do not have jurisdiction over non-Muslims. In civil cases where Syariah courts have jurisdiction, federal law prohibits federal courts from exercising jurisdiction. Some Malaysian states also have customary law courts that operate in tandem with the federal secular courts and Muslim Syariah courts.
Although Morocco is not formally a secular country and Islam is the official religion, the legal system is based primarily on the French civil law tradition and consists of a mostly secular court system with first-instance, regional, and appellate courts as well as a supreme court (Court of Cassation). There are specialized first-instance courts with jurisdiction over personal status disputes for Jewish and Muslim citizens. These “Sadad” courts are divided into different sections: Sharia, Rabbinical, civil, commercial, administrative, and penal. Although the criminal code is largely based on French legislation, the Moroccan criminal code expressly prohibits attempts to undermine Islam and to convert Muslims to other religions.
Secular
In Muslim-majority countries where the legal system is secular, as well as countries where Muslims are a minority, Islamic law may be followed by citizens in matters affecting family law, personal property, and lifestyle (e.g., prayer rules, the giving of charity, and interpersonal conduct). The state, however, does not formally incorporate Islamic law into its laws or jurisprudence.
- Muslim-majority countries with secular legal systems include Tunisia, Azerbaijan, Albania, and Senegal.
- In Muslim-majority countries with largely secular systems, there may be government offices responsible for religious affairs or mandates that specify government positions be filled by certain religious or ethnic groups.
In Turkey, the principle of secularism is constitutionally enshrined, but the government Office of Religious Affairs (Diyanet) administers places of worship and religious education in schools.
In Lebanon, civil and criminal laws are largely secular, except for personal status laws where the religious laws of those affected by a dispute govern the matter. In addition, the constitution mandates that certain political offices be held by representatives of certain ethno-religious communities (Maronite Christians, Sunni Muslims, and Shia Muslims).