Shari'ah: An Islamic Law Simulation

By Joan Brodsky Schur

Overview

This simulation is designed to help students understand the origins of Shari’ah, or Islamic law, and the kind of legal thinking and scholarship that went into formulating it during the Abbasid caliphate (749-1258 C.E.). In the simulation students play the roles of judges, claimants, and defendants. After hearing a case presented to them, the qadis (judges) must pass judgment on it by consulting a variety of Islamic sources.

The simulation does not go into the differences among the various schools of Islamic law nor does it pretend to help students arrive at “right answers” to legal questions posed in the simulation. Rather it is meant to help students understand the process by which Shari’ah developed and its import in molding a civil society across a vast geographical area.

Basim Musallam writes in the Cambridge Illustrated History of the Islamic World that during the Abbasid era, “There was such uniformity in the laws and institutions which bound each citizen to the urban community, and which were common to every Muslim city, that one can truly speak of a universal society which joined the urban centres of Islam from the Atlantic to China” (p. 164). Understood in its historical context, the development of Shari’ah thus enabled the spread of trade to flourish, bringing in its wake the exchange not only of goods, but of ideas critical to the achievements made during this period in science, engineering, medicine, philosophy and the arts.

Objectives

• To help students understand the role that shari’ah played in the development of Muslim civilization during the Abbasid caliphate.
• To acquaint students with both the religious and scholarly basis of Islamic law.
• To help students understand the differences and similarities between shari’ah and our system of jurisprudence, as well as to compare it the legal systems of other world cultures.

Standards

National Standards for History in the Schools http://www.sscnet.ucla.edu/nchs/

Era 4: Standard 2: Causes and consequences of the rise of Islamic civilization in the 7th-10th centuries

2B Analyze the sources and development of Islamic law and the influence of law and religious practice on such areas as family life, moral behavior, marriage, inheritance.

Curriculum Standards for the Social Studies, the National Council for the Social Studies http://www.ncss.org/

Strand I: Culture: Social Studies programs should include experiences that provide for the study of culture and cultural diversity.

Strand VI: Power, Authority & Governance: Social studies programs should include experiences that provide for the study of how people create and change structures of power, authority and governance.

Strand XI Global Connections: Social studies programs should include experiences that provide for the study of global connections and interdependence.

National Standards for Civics and Government, Center for Civic Education http://www.civiced.org/

IB grades 5-8: What are the essential characteristics of limited and unlimited government?

IA1 grades 9-12: Defining civic life, politics and government.

IB2 grades 9-12: Explain alternative ideas about the sources of law, e.g., custom, Supreme Being, statute law, international law.

Materials

You will need the following sources in order to enact this simulation with your class:

• A selection of ayahs from the Qur’an including provided in this lesson.
• A selection of Hadiths from An-Nawawis Forty Hadith provided in this lesson.
• "The Legal Principles of al-Ghazzali" included in the lesson.
• "The Origins of Islamic Law" from the Bill of Rights in Action, Constitutional Rights. Foundation, Winter 1998, Vol. 15. No. 1 at http://www.crf-usa.org/bria/bria15_1.html
• "What is Shari’ah? Major Sources and Principles of Islamic Law" an Islam Project lesson available at http://www.theislamproject.org/education/D01_IslamicLaw.htm
• Recommended: "The Ordering of Muslim Societies" by Basim Musallam, pp. 164-207. Found in The Cambridge Illustrated History of the Islamic World, ed. Francis Robinson, Cambridge University Press, 1996. This discusses the role of al-Ghazzali in the development of Islamic legal thought.

Procedures

Activity 1: Thinking About Legal Systems

Ask students what they know about our jury system, and what they value most about it. If they were a member of a jury, on what basis would they decide if a person were innocent or guilty? Would it be up to them to make the laws, or merely to judge if an existing law had been broken? What is the role of the judge in our system? Who in our society makes the laws? By what processes, and on what bases, do students believe our laws are made? Does religion play a role in our legal system? On what principles have other societies based their legal systems?

Now ask students what they know or what they think they know about Islamic law, or Shari’ah. In what context have they heard the term and from what sources? Tell students that they are going to learn about how Islamic law developed, the principles upon which it is based, and its role in the creation of a civil society in the Abbasid caliphate. They will then enact a variety of mock cases. Also tell students that while the basis of Islamic law (religion) differs from legal system, it nonetheless shares many features in common with ours. Ask students to think about what these features might be as they enact the simulation.

Activity 2: Understanding Shari'ah

Explain that to reach a decision in a legal case a Muslim qadi (also spelled kadi) would consult in the following order.



• The Qur'an
• The Sunnah (practices, habits, sayings) of Prophet Muhammad, including the Hadith which provide a written record of his Sunnah.
• Ijma: The consensus of the community of Muslim scholars and qadi.
• Qiyas: The process of making deductions by analogy or precedent to other cases.

To help students further understand these principles and how they developed distribute the following reading and accompanying worksheet.

1. "The Origins of Islamic Law" from the Bill of Rights in Action, Constitutional Rights Foundation, Winter 1998, Vol. 15. No. 1. http://www.crf-usa.org/bria/bria15_1.html (scroll down to World History, "The Origins of Islamic Law.")

This reading is necessary to the simulation for two reasons. First, it provides the sequence students will use when presenting evidence. Second, it lists some of the features of the classic Shari’ah which students will consult if they cannot find the answer to a legal issue after consulting the meaning of the Qur’an and Hadith.

Student Worksheet for "The Origins of Islamic Law"



• What does sharia (sometimes spelled shariah or shar’iah) mean? Why is it considered sacred?
• Before Islam was introduced to the tribes of Arabia, what kind of justice was there?
• What was the role of the kadis (also spelled qadis) in helping the Umayyad Empire to function smoothly? Suppose you were a traveler in 700 C.E. in the Muslim world. What would be the advantage as you traveled in having a similar system of justice throughout vast areas of the world? Explain.
• In 749 C.E. the Abbasids overthrew the Umayyads. How did the kadi’s role change in the Abassid empire? What did the kadi’s still control? What did the kadi’s not control?
• During the Abbasid period a split grew in how legal scholars thought the sharia should be interpreted. One group believed that only the teachings of the Prophet should make up the Sharia. However, another group believed the Sharia should include the reasoned opinions of learned scholars. A scholar named Shafii reconciled these two views and arrived at his own system of law which became greatly influential. List his "four" steps in trying to decide a legal case.
• For how many years did the Sharia continue to develop?
• Use the guide, "Preparing and Evaluating Content on Islam and Muslims" at the Islam Project website http://www.theislamproject.org/education/Prepare_eval.htm to evaluate this reading. According to the guide what problems, if any, do you find with "The Origins of Islamic Law"?
• For Research and Essay Writing: Read the section called "Family Law." Then write a paragraph about how you feel women were treated under Islamic law. How did their treatment in Sharia courts of law during this time period compare to that of the early Christian Middle Ages? Likewise, how did criminal law as it was formulated in the classic Sharia compare to systems of laws and punishments in Medieval Europe?

You may also wish to assign the following reading: "What is Shari’ah? Major Sources and Principles of Islamic Law" an Islam Project lesson available at http://www.theislamproject.org/education/D01_IslamicLaw.htm This is an excellent source of background information for more advanced students and provides a lesson you may wish to implement in conjunction with this one. It offers detailed information about an array of guiding principles qadis use in reaching a decision, such as istihsan, or favoring the public interest unless otherwise prohibited, urf or respect for custom, and ibahah, permitting that which is not specifically forbidden. More advanced students may want to cite these principals when arriving at a decision.

Activity 3: Setting Up the Role Play

Divide the class into the groups listed below to role play the defendants, claimants and witnesses in the court cases. Assign two to three other students to act as qadis for each case. Students who are in, let’s say case 1 can act as qadis for students in case 2, and so forth. Or, if you have a large class, assign some students to role play claimants, witnesses and defendants, and the remaining students to role play qadis. Decide how faithfully you want to adhere to gender roles for the trials. Females were claimants but rarely witnesses (see “The Origins of Islamic Law”). In any event, some girls can be assigned male roles.

Give students one class period to prepare their role-plays (or at least half a period if time is short). Qadis should review the sources of the law. Defendants, claimants and witnesses should formulate a brief script (either written or adlibbed that they will use to perform their case).. Students should then perform their role-plays in front of the entire class. Encourage qadis to ask questions of the claimant, defendant and witnesses. Answers to these will have to be adlibbed

Directions for the Students:

The imaginary cases you will role play are set during the Abbasid caliphate which lasted from 749 to 1258 C.E.

One person in the role play will enact the claimant. The claimant has a claim to make that some injustice has been brought upon him or her.

The second person in the pair will play the defendant. The defendant tries to defend him or herself against the accusations of the claimant.

Depending upon the case, other students will play witnesses.

As in our jury system, the defendant in these cases was presumed innocent unless proven guilty. The burden of proof is on the claimant who must produce evidence to prove his or her case. This was done mainly through the use of witnesses. (Only male witnesses were allowed except in special cases.)

If the claimant could not produce witnesses he could ask the defendant to take an oath. Thus the judge would ask for, "Your evidence or his oath." If the defendant swore he was innocent the case was dismissed. If he refused to take the oath, the accuser won. The defendant could also confess in open court.

When the case is over the qadis assigned to it will meet to consult first the meaning of selected passages of the Qur’an in translation. If they cannot find an answer to the problem there they will next consult selected Hadith. Finally the qadis will consult the other assigned readings about Islamic law (“The Legal Principles of al-Ghazzali,”and “The Origins of Islamic Law”) as they search for consensus (ijma) among Muslim legal scholars to help them resolve the case. (The principle of qiyas, or making deductions by analogy or precedent to other cases is too difficult to apply in the simulation.)

Qadis should then discuss the case among themselves and reach a decision. They will announce their decision to the whole class. The qadis must explain the legal reasoning that led them to reach their decision, citing their sources.

THE CASES

Case 1

The defendant is the owner of a khan, or inn.

The claimant was a traveler who stopped at the khan as he or she was traveling out of Baghdad. The claimant claims that he arrived very tired and was told there was no room in the khan. But what really upset the traveler was that he/she was also refused water because he had been on the road so long that without water, he would perish.

The claimant produces two witnesses.

The defendant can defend himself with whatever argument he/she wishes to make.

Case 2

The claimant is a rich merchant who enjoys going to the hamam (baths). He is well known in Baghdad for the luxurious silks he imports all the way from China, and he has grown rich from his shrewd bargaining. He claims that while he was in the hamam a robber broke into his khan and made off with his most treasured silks. The defendant is a poor boy often seen roaming the streets.

There are two witnesses in this case.

Case 3

A sister and a brother have recently lost their father who died of a fever. In his will, the father left the sister only half the inheritance he left the brother.

The claimant is the sister. She claims that the brother paid her a half share, and then did nothing to provide further for her. The defendant, the brother, says that he is not required to do anything else for his sister, as the father has provided for her by leaving her money from his will.

There are no witnesses in this case,

Case 4

There is a woman whose husband has died. The claimant is the husband’s brother. He claims that the woman has remarried a mere 5 months after his brother has died, not a fitting time to mourn someone who deserves great love and honor. Her actions have thus dishonored his family. The wife is the defendant who says that that she has waited the proper amount of time before she has remarried, and that she cannot support herself without a husband.

There are no witnesses in this case.

Case 5

The claimant is an elderly gentleman who runs a carpet business in a local suk. He claims he was in a masjid (mosque) saying his Friday prayers when he was rudely interrupted by a young child playing in the mosque. He could not concentrate and lost his place in his prayers. The child in question does this regularly at the Friday prayers and he feels it is time the mother and child were forbidden from coming to Friday noon time prayers.

The defendant is the mother who says that her child has only been playing quietly.

There are two witnesses to this case

Case 6

A husband and wife come to court. The claimant is the husband. He is in business importing rugs from Isfahan (Persia) into Baghdad. For this reason he must travel a good deal. The defendant is the wife who often accompanies him on journeys. However, on the last trip she refused to go. He claims that it is his wife’s duty to join him and accompany him. She defends herself by saying that she is currently pregnant and that he cannot make her go.

There are two witnesses to this case.

Case 7

A woman is the claimant. She goes to the hamam (bath) regularly with her sister. She claims that a man regularly waits outside the hamam to harass her and offends her modesty. She is afraid to go for the embarrassment and shame this situation could bring her family.

The defendant is a young man of good repute who is in love with the young woman.

There are two witnesses in this case.

Case 8

The claimant is a shop owner in Baghdad. The shop owner is one who trades in metal ware, such as beautiful plates and pitchers. His shop is right next to a halal butcher’s. The claimants complaint is that the butcher obstructs the road by leaving the rotting bodies of animals in the road, thus obstructing the pathway to his shop. The halal butcher defends himself by saying that he does not obstruct the street, and if he does so it is only for a short while until the carts take the refuse away.

There are two witnesses in this case.

Case 9

There is a husband who has recently repudiated his wife three times, thus divorcing her. They have two children. The husband is the claimant in the case. He accuses his former wife of unlawfully keeping their children and refusing to give them to him. He believes it is his right as a father to have custody over his children, a boy who is 6 months and a girl who is 10 years- old. The wife, who is the defendant, disagrees and feels she is entitled to keep her children, especially because she had no say in the divorce.

There are no witnesses in this case.

Case 10

A terrible murder has taken place in the bazaar in Isfahan, Persia. A man was killed down a small alley way in front of a storeowner who sells pens and paper for writing. The claimant is the dead man’s brother. He claims the shop keeper must have seen the murder, but did nothing to prevent it. He neither intervened, nor called for help, but simply observed what happened and did not report what he saw. The defendant is the shop owner who claims he was in the back of his shop and saw and heard nothing at all that day.

There are two witnesses in this case.

Case 11

The claimant is a young woman. Since the death of her mother and father she has lived as the ward of her uncle, a well-to-do doctor. The uncle, the defendant, insists the young woman marry a far off relative who already has one wife. The young woman claims that her own father would never have married her to a man who already has one wife, and that the uncle merely wants to be rid of the charge of taking care of her as quickly as possible.

There are not witnesses in this case.

Case 12

The claimant is a middle-aged woman. She has been married to the defendant, her husband, for over 15 years . The husband has recently taken a second wife. The claimant now wants a divorce on the grounds that her husband has taken a second wife whom he clearly favors not only with his time and affection, but with the money he spends to provide a lavish lifestyle for her. On these grounds the claimant, the first wife, petitions the court to be granted a divorce.

There are two witnesses in this case.

THE SOURCES

The Qur’an

(The meaning of the Qur’an in English from Translation of the Meanings of The Noble Qur’an in the English Language. Madinah: K.S.A. King Fahd Complex for the Printing of the Holy Qur’an)

2:333 The mothers shall give suck to their children for two whole years, (that is) for those (parents) who desire to complete the term of suckling, but the father of the child shall bear the cost of the mother’s food and clothing on a reasonable basis. No person shall have a burden laid on him greater than he can bear. No mother shall be treated unfairly on account of her child, nor father on account of his child. And on the father’s heir is incumbent the like of that (which was incumbent on the father). If they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. And if you decide on a foster suckling-mother for your children, there is no sin on you, provided you pay (the mother) what you agreed (to give her) on a reasonable basis. And fear Allah and know that Allah is All-Seer of what you do.

2:34 And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days, then when they have fulfilled their term, there is no sin on you if they (the wives) dispose of themselves in a just and honourable manner (i.e. they can marry). And Allah is well-acquainted with what you do.

5:8 O you who believe! Stand out firmly for Allah as just witnesses; and let not the enmity and hatred of others make you avoid justice. Be just: that is nearer to piety; and fear Allah. Verily, Allah is Well-Acquainted with what you do.

4:3 ...Marry women of your choice, two, or three, or four: But if ye fear that ye shall not be able to deal justly (with them), then only one, or that your right hands possess. That will be more suitable, to prevent you from doing injustice.

4:19-21 Oh ye who believe! Ye are forbidden to inherit women against their will... Live with them on a footing of kindness and equity.

4:129 Ye are never able to be fair and just as between wives, even if it is your ardent desire. But turn not away from a woman (altogether) so as to leave her (as it were) hanging (in the air). If ye come to a friendly understanding, and practice self-restraint, Allah is oft-forgiving, most merciful.

From An-Nawawi’s Forty Hadith

(translated by Ezzeddin Ibrahim and Denys Johnson-Davies)

From Hadith 12

Part of someone’s being a good Muslim is his leaving alone that which does not concern him.

Hadith 14

The blood of a Muslim may not be legally spilt other than in one of three [instances]: the married person who commits adultery; a life for a life; and one who forsakes his religion and abandons his community.

Hadith 25

Some of the Companions of the Messenger of Allah (may the blessings and peace of Allah be upon him) said to the Prophet (may the blessing and peace of Allah be upon him): O Messenger of Allah, the affluent have made off with the rewards: they pray as we pray, they fast as we fast, and they give away in charity the superfluity of their wealth. He said: Has not Allah made things for you to give away in charity? ...To enjoin a good action is a charity, to forbid an evil action is a charity...

Hadith 33

Were people to be given in accordance with their claim, men would claim the fortunes and lives of [other] people, but the onus of proof is on the claimant and the taking of an oath is incumbent upon him who denies.

Hadith 34

Whosoever of you sees an evil action, let him change it with his hand; and if he is not able to do so, then with his tongue; and if he is not able to do so, then with his heart - and that is the weakest of faith.

The Legal Principles of al-Ghazzali

Al-Ghazzali wrote The Revival of the Religious Sciences at the end of the 11th century. Having lived in Jerusalem, Baghdad and Damascus, he was well-versed in the ways of a variety of cities, and therefore understood the need to find guidelines for people who, living in close proximity, were bound to come into conflict.

One of al-Ghazzali’s contributions to Islamic jurisprudence was his analysis of hisba, the duty of Muslims “to promote what is right and to prevent what is wrong.” While Islamic law is derived from God it did not favor coercion by the state as a means to enforce laws; rather it relied heavily on the conscience of each individual to adhere to a moral code. Hisba was considered to be a right with which we were born, and therefore it was an obligation to practice it regardless of one’s status in society, male or female, free or slave. Only young children, the insane and otherwise disabled individuals were exempt from exercising their moral duty to promote the good and prevent the bad.

Always seeking a middle path between group responsibility and individual conscience, between the right of privacy and the needs of the community, al-Ghazzali did not believe that the duty to practice hisba sanctioned the intrusion of either the state or ordinary citizens into the private lives of the people. It was public and visible behavior that concerned him.

One portion of Revival of the Religious Sciences deals with condemning offenses that obstructed the city streets or made them unsanitary, because these spaces belonged to the community.

Behavior on the streets of which he disapproved included:

Student Worksheet for "The Origins of Islamic Law"



• Adding on balconies to houses or benches to streets because they obstructed the way.
• Cluttering passageways with large supplies of wood or grain, unless for use in homes.
• Throwing water in the street, which made it slippery
• Keeping riding animals tethered together too long in the street, which fouled them.
• Loitering by young men outside the women’s baths, which offended female modesty.
• Leaving animal offal in the streets.

Regarding religious observances

• He did not approve of Muezzins who made their call to prayer too long.
• Unclean clothes in the masjid were inappropriate.
• Wrong quibla direction (the orientation towards Mecca) in a masjid (mosque) was not pardonable.
• Incorrect recitation of prayers was not to be approved of.
• Quack doctors were to be banned both inside and outside the masjid.
• Honorable merchants should be allowed to sell their wares around the masjid, if worship was not interrupted.
• Children should be welcome in the masjid as long as their behavior was respectful.
• Those who had drunk too much were welcome in the masjid as long as they did not disturb worship. It was better to sober up the drunkard and counsel him rather than to punish him. But anyone drunk to the point of swaying in public should be punished; sin should not be flaunted.
• To spy on those in their homes for drunkenness was a more serious offense than becoming drunk itself.

* Source: "The Ordering of Muslim Societies" by Basim Musallam, pp. 164-207. Found in The Cambridge Illustrated History of the Islamic World, ed. Francis Robinson, Cambridge University Press, 1996.

Activity 4: Debriefing and Extensions

• Lead a discussion on what students feel they have learned from the simulation. How did Shari’ah function to create a civil society? In what way did it create uniform norms across wide geographical areas? How would this have promoted trade and travel?
• As time went on after Abbasid times, what about the nature of the Classic Shari’ah made it difficult to change the laws? What about its principles allow for potential change? What issues regarding Shari’ah are most problematic today?
• Ask students what role if any religion plays in our court system. What are their opinions about recent controversies? Should the motto “In God We Trust” appear in our courthouses? Should Christmas decorations be displayed on their grounds? Why was a judge asked to remove the Ten Commandments from the grounds of a court house in Alabama, and who was right in this dispute?
• Assign students to write a diary as a traveler living in a part of the Abbasid Empire. As they imagine their travels ask students to describe some of the problems they witness that were resolved by the legal system.
• Ask students to research the role of Shari’ah in a predominantly Muslim country today. What problems does it resolve? What problems, if any, does it create?
• Assign students to write an essay comparing our justice system to Classic Shari’ah. What about Islamic jurisprudence is most like our legal justice system? What is most dissimilar?
• Using the website of the Constitutional Rights Foundation ask students to write an essay comparing Islamic law to other legal systems such as Hebrew law http://www.crf-usa.org/bria/bria16_4.htm or early Chinese law http://www.crf-usa.org/bria/bria15_4.html#law.

Assessment

• Students can be assessed for the quality of their written work on the Worksheet “The Origins of Islamic Law.” Do their answers reflect good reading comprehension of the materials? Did they provide detailed and factual information? When asked for an opinion did they express it with care, thought and good reasoning?
• Students can be assessed for their ability to work in teams when preparing the court cases. Did they contribute to the group endeavor? Were they able to use what they knew about Abbasid times and the legal system? Did the judges prepare their responses with care and give sound reasoning for their opinions, citing their sources? Did students playing qadis respond with answers that included facts and details?
• Students can be assessed for their participation in discussion of the de-briefing questions, or for the quality of their essays and research (if you assign these from the De-briefing and Extension activities).

Sources

John L. Esposito, Islam: The Straight Path. New York: Oxford University Press, 1998.

Susan L. Douglass and Karima Diane Alavi, The Emergence of Renaissance: Cultural Interactions Between Europeans and Muslims. Fountain Valley CA: Council on Islamic Education, 1999.

Albert Hourani, A History of the Arab Peoples. New York: Warner Books, 1991.

Mohammad Hashim Kamali, "Law and Society: The Interplay of Revelation and Reason to Shariah" in The Oxford History of Islam edited by John L. Esposito. New York: Oxford University Press, 1999, pp. 107-155.

Francis Robinson, Ed. Cambridge Illustrated History of the Islamic World. New York, Univeristy of Cambridge Press, 1996.

Teaching About Islam & Muslims In the Public Schools: A Handbook for Educators, Fountain Valley, CA: Council on Islamic Education, 1995.