BEYOND THE BAR: Sharia law Part II: How Does It Work, 0914 SCBJ, SC Lawyer, September 2014, #13

• Author: Warren Moise, J.

BEYOND THE BAR: Sharia law Part II: How Does It Work?

Vol. 26 Issue 2 Pg. 13

South Carolina BAR Journal

September, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Warren Moise, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0My last column dealt with the wave of anti-Sharia laws being enacted by state legislatures, including a South Carolina bill to that effect. These statutes and/or constitutional amendments generally bar states from recognizing Sharia law in their courts, though some don't expressly mention Sharia.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This column gives a brief and very general idea of Sharia law itself. Sharia literally means "the path" or the "path to water." For many Muslims, it is both a moral and a legal code covering all aspects of life, similar to how the Old Testament controlled religious and moral life. Under Iran's criminal code and consistent with Sharia, "[a]ll crimes have a divine aspect." 2 Iranian Crim. Code of Pro. for Public and Rev. Courts at § 2 (1999).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Be forewarned! There are many different variations of Sharia in Muslim countries such as Indonesia, across Africa and the Middle East. Sharia may be just a part of a country's legal system or comprise all of it.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Saudi Arabia is a good example of how Sharia is applied differently depending on the country. In Saudi Arabia, Sharia law is the basic legal system, but it's never been codified. Certain areas of the law (e.g., intellectual property) are supplemented by decrees from the House of Saud. On the other hand, Saudi criminal law (which was codified in 2001) is ignored to a large extent. There are not one but two sets of secret police in Saudi Arabia: the state-run Mabahith and the Islamic secret police called the Mutawa.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Then there are the problems of political instability, civil war and revolution. A country's legal system may be based on one theory of jurisprudence such as Sharia at bedtime and due to a coup, follow an entirely new legal theory at breakfast the next morning.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Sharia "Constitution"

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0There are two main bases for Islamic law. You might think of them as the Sharia Constitution. First, the Koran is seen as divine law given to mankind through the Prophet Mohammed. It has only a limited number of passages relating to law. Second, there is the Sunnah. The Sunnah is...