Islamic Jurisprudence

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Islamic Jurisprudence

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Islam in West Africa. As Islam spread in West Africa, Islamic principles of jurisprudence influenced changes to indigenous systems of law and justice in some parts of the region. At the heart of Islamic law (the shanati) is the belief in its divine origin. Muslims hold that the fundamental sources of all laws are the Quran (Koran) and the Sunnan (singular: Sunnati), customs and legal pronouncements of the Prophet Muhammad and other members of the early Muslim community. In making a ruling an Islamic judge also consults consensus interpretations made in earlier cases and draws analogies from established laws. Nonetheless, the judge understands the supremacy of the Quran—the will of God as revealed through Muhammad—above all other sources. Each of the two branches of Islam, Sunni and Shi’a, has four major schools of law. The dominant school of Islamic law in West Africa is the Maliki, one of the Sunni schools.

Categories of Behavior. Islamic law divides behavior into five categories: (1) acts that Muslims are enjoined to perform, such as praying five times a day; (2) acts that are strictly forbidden (haram), such as drinking alcohol; (3) acts that Muslims are advised, but not required, to perform, such as kindness and generosity to the poor; (4) acts from which believers are advised to refrain, including interpersonal issues, such as unethical business practices; (5) behavior that is morally neutral (most everyday activities). Under Islam, the second category, haram, is enforced by law.

Establishing Guilt. Under Islamic jurisprudence, the guilt of the accused can be established in several ways. The accused may confess to the charges, or guilt can be established through conclusive proof. Circumstantial evidence, if found to be strong enough, can also form the basis for conviction. Islamic law requires a minimum number of witnesses to a crime. For example, four adult male witnesses must testify to a charge of illicit sex, but two competent witnesses are sufficient for a charge of theft or brigandage. Analogical deduction may also be used to establish the guilt of the accused. For instance, pregnancy of an unmarried woman can be assumed to be proof of her engagement in illicit sex, unless she can demonstrate that her pregnancy resulted from rape or that she was deceived into having sexual intercourse. For the charge of consuming alcohol, the

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court may not require a witness to the act of drinking. Under the Maliki school of jurisprudence, smelling alcohol on the accused or seeing the accused behave in an intoxicated manner is sufficient proof. Insanity may be used as a defense. If adequate testimony is provided that insanity prevented the accused from knowing he was committing a crime, then he cannot be convicted.

Punishment. The shari’ah prescribes a scale of fines and punishments for different offences. For example, an unmarried man who confesses to having illicit sex can be sentenced to one hundred lashes and a one-year jail term, but a married person who is convicted of the same crime may be stoned to death. A conviction for consuming alcohol results in eighty lashes from a cowhide whip. The willful wounding of another person may be visited with like retaliation. For instance, if the injured person loses an eye, the punishment may entail removing one of the offender’s eyes. While the prescribed punishments for offences under Islam seem rather harsh, in reality the harshness of the punishment may be mitigated. For example, in flogging a person who has been convicted of drinking alcohol, the severe impact of the prescribed eighty lashes is lessened by the requirement that the flogger hold the whip between certain fingers and that he must also place an object under the armpit of the arm holding the whip.

Influence in West Africa. Islam has had a profound impact on law, the administration of justice, and jurisprudence in West Africa. In some parts of West Africa, Islamic law supplanted pre-Islamic law. Even where it did not completely nullify local laws, it defined new crimes and introduced new laws relating to matters such as inheritance, marriage, and contracts. Islam also had a major impact on jurisprudence through the introduction of new punishments, such as stoning for people convicted of adultery. Islamic law helped to create a degree of uniformity in the administration of justice throughout the ethnically and culturally diverse kingdoms and empires of West Africa. The presence of Islamic jurists in the palaces of some West African rulers also had a significant impact. While Islamic law brought some positive changes in West Africa, however, making apostasy from Islam an offense punishable by law constituted a diminution of religious freedom in the region.

Sources

J. N. D. Anderson, Islamic Law in Africa (London: Cass, 1970).

Asaf A. A. Fyzee, Outlines ofMuhammadan Law, fourth edition (Delhi & London: Oxford University Press, 1974 [i.e., 1975]).

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Islamic Jurisprudence