Lade Inhalt...

Beiträge zum Islamischen Recht XII

von Silvia Tellenbach (Band-Herausgeber:in) Thoralf Hanstein (Band-Herausgeber:in)
©2017 Sammelband 158 Seiten


Der von der «Gesellschaft für Arabisches und Islamisches Recht» (GAIR) veröffentlichte Band ging aus der Jahrestagung der Gesellschaft im Oktober 2016 in Freiburg am Max-Planck-Institut für ausländisches und internationales Strafrecht hervor. Die Vorträge liegen nun ergänzt um zwei weitere, themenrelevante Beiträge publiziert vor. Die Artikel beschäftigen sich schwerpunktmäßig mit dem islamischen Strafrecht im Iran und in Pakistan, vor allem mit Bezug zum Religionsstrafrecht (Lästerung und Schmähung von als geheiligt geltenden Personen oder Gegenständen) und Sexualstrafrecht (Ehebruch, Homosexualität und Vergewaltigung). Hinzu kommen Untersuchungen zu Strafzwecken im schiʻitischen Strafrecht, zur Auslegung der Scharia im Islamischen Staat (IS) und zur Iranischen Rechtsanwaltskammer.


  • Cover
  • Titel
  • Copyright
  • Autoren
  • Über das Buch
  • Zitierfähigkeit des eBooks
  • Inhaltsverzeichnis
  • Vorwort der Herausgeber
  • “Fossilized Sharia”: Law, Violence and the Caliphate of Raqqa (Rudolph Peters)
  • The Aims of Punishment in Islamic Criminal Law and their Reflection in the Iranian Criminal Justice System (Firouz Mahmoudi Janaki)
  • Schmähungen von muqaddasāt im iranischen Strafrecht (Seyed Emadeddin Tabatabaei)
  • Von Macaulay zu Zia ul-Haq - Das pakistanische (Religions-)Strafrecht zwischen kolonialem Erbe und Islamisierung (Benedikt Naarmann)
  • Challenges to the Regulation of Sexuality under Iranian Criminal Law (Afrooz Maghzi Najafabadi)
  • Rule of Law or Rule by Law? Iran’s Bar Association as a pawn in Islamic-republican contestations (Mirjam Künkler)
  • Autor*innen des Bandes
  • Reihenübersicht

“Fossilized Sharia”: Law, Violence and the Caliphate of Raqqa

Rudolph Peters, Amsterdam

1.   Introduction

In some Muslim states the domain governed by Sharia law has recently been expanded: Countries like Pakistan and Iran have extended the application of Sharia law from family law to other fields, such as penal and fiscal law. This was done by codifying pre-modern Sharia doctrines. In drafting these new law codes the legislators had to choose from alternative doctrines and norms existing in the corpus of pre-modern Islamic jurisprudence. This selection was informed, not so much by technical legal factors, but rather by political and cultural ones. The re-introduction of Sharia penal law, for instance, had a clear symbolic ideological function of opposing Western thought. 1 Here I would like to introduce the term “fossilized Sharia” as a metaphor for a modern type of selective Sharia law defined by a state and consisting of big chunks of obsolete and anachronistic doctrines and norms excavated from the pre-modern Islamic religious and legal texts. I call such doctrines and norms “fossilized” because they were not “alive” anymore, since, for a long time, they had not been applied and, therefore, were stagnant and did not develop. Usually, the selection of the doctrines and norms are motivated not only by purely religious reasons, but also to justify state policies. Now, the Islamic State2 is one of the polities that has used “fossilized Sharia” at an extensive scale. And its most conspicuous characteristic of its enforcement is its justification of cruel and violent practices in governance, warfare and, especially, the administration of justice. The atrocities that are carried out in public and are widely disseminated through the media are part of a deliberate policy. In the following I will try to analyze the way the Islamic State is using “fossilized Sharia”. After a brief exposé of the ← 11 | 12 origins and history of the Islamic State I will expound how Sharia law is enforced by the Islamic State. Finally I will analyze the instrumentality of this violent and ruthless practice justified by “fossilized Sharia”.

2.   The emergence of IS3

The Islamic State is only one of the warring rebellious parties in Iraq and Syria. However, it has distinguishing features that make it different from the other rebel organizations. The latter fight first and foremost for a regime change within the existing national borders, whereas the Islamic State’s main objective is to establish an Islamic state with unspecified borders, exclusively enforcing Sharia law. It fights both the regimes in power and rebel militias in order to carve out territory for setting up the intended Islamic state.

The Islamic State was created in Iraq in 2006 when the local branch of Al-Qaeda and some jihadi groups merged into an organization that was first called the Islamic State in Iraq (ISI). It was headed by a certain Ḥāmid Dāwūd Khalīl al-Zāwī with the battle name Abū ‘Umar al-Baghdādī, about whose personal background is not very much known. He succeeded in establishing the rudiments of the Islamic State that until 2015 controlled a considerably large territory in North West Iraq and North East Syria. One of the main features of this organization is its deep enmity towards the Shi`ites, which, originally, made it attractive to Iraqi Sunnites. This was a result of the change in the balance of power in Iraq after the American occupation. Under Saddam Hussein the political elite was Sunnite and Arab, although they represented only a minority in the country. After the occupation, political power shifted toward the largest community, the (Arab) Shi‘ites. At the same time the Americans dissolved the two main props of the ancient regime, the army and the Baath Party. Many Iraqi Sunnites, therefore, resented the new, mainly Shi‘ite government and the Shi‘ites in general. This resentment was expressed in both political and theological terms: The Sunnites opposed the Shi‘ites not only as “usurpers” of the political power in Iraq, but also as an expansionist power, striving, together with Iran and Hezbollah, at conquering a slice of the Middle East stretching from Iran to Lebanon. On the level of religion, many Sunnites, referring to Shi‘ites with the pejorative term Rāfidites (“Rejectionists”), regarded them as ← 12 | 13 non-Muslims. In Iraq, these sectarian feelings of resentment helped reinforce the military power of the Islamic State because of the support of former followers of Saddam Hussein, now converted to Islamism: the Baathists, the former military, and disaffected Sunnite tribes. When, since the beginning of 2013, the Islamic State started its operations in Syria, it could also recruit soldiers and civilians there because of religious opposition against the Alawites, to which the ruling elite of Assad belonged, and against the Shi‘ites, since the Syrian regime was assisted by Iran and the Hezbollah.

Abū ‘Umar al-Baghdādī was killed in 2010 and succeeded by Ibrāhīm ‘Awwād Ibrāhīm ‘Alī al-Badrī with the sobriquet of Abū Bakr al-Baghdādī. The military strength of the Islamic State now greatly increased by the influx of foreign volunteers from the Arab world, Central Asia and Western Europe and its economy by the Islamic State’s control of oil wells. In the first months of 2013, the Islamic State extended its operations to North Syria. Within one year the Islamic State controlled northern regions of Syria with the towns of Deir el-Zor as well as Raqqa, which became the capital of the Islamic State. In Iraq the city of Mosul was conquered by Islamic State in June 2014. By the summer of 2014 the Islamic State was ruling over a large area in Syria and Iraq, with some eight million inhabitants. The conquest of Mosul, the first large city under control of the Islamic State, was regarded as an opportunity to proclaim the Islamic State as a Caliphate. On 29 June 2014 the Shūrā (Consultation) Council of the Islamic State appointed Ibrāhīm Abū Bakr al-Baghdādī and swore allegiance (baya)4 to him as the caliph of all Muslims, having examined his qualifications for the office. In accordance they requested that all Muslims, wherever they live, pledge allegiance to him and emigrate (hijra) to the state to offer support.5

In the course of 2013 and the first half of 2014, the state structure became more articulated and the Islamic State carried out more and more state duties via ‘ministries’ (dīwāns). The number of ministries grew in the course of time. There were a total of fourteen in the summer of 2014.6 The territory of the ← 13 | 14 Islamic State was divided into provinces (wilāyat), where local departments of the ministries function.7

3.   Enforcement of Sharia

The organization of the Islamic State shows that the enforcement of Sharia law is regarded as the raison d’être of the state. There are five ministries that directly deal with Sharia. The Ministry of Fatwas and Research handles the theoretical side: It publishes treatises about topics related to Islam and Sharia and fatwas on practical matters, such as Islamic taxation, the treatment of prisoners of war, travelling, games, the behavior of women, smuggling, prescribed clothing, rituals and organ transplants.8 On a doctrinal level, the Ministry of Education is also important. This ministry ‘purges’ the curricula of schools of non-Islamic matters and develops study programs consistent with version of Islam propagated by the Islamic State. The Ministry of Spreading of Islam, Mosques and the Religious Foundation controls the mosques and makes sure that no preacher propagates ideas contrary to religious doctrines of the Islamic State. There are two ministries charged with the direct application of Sharia: that of the religious police (ḥisba) and that of the administration of justice and complaints. The ḥisba falls under the Sharia courts and deals with public morality and religious behavior. For instance, religious police officers enforces that people ← 14 | 15 wear Islamically prescribed clothing and that men and women do not mix in public. They also monitor shops and checks that they are closed during prayer.9 There is also a special female police corps called the Al-Khansā ’ brigade. This brigade mainly oversees that women wear the prescribed clothing and that they behave decently in public. Women infringing upon the rules are arrested or flogged on the spot.10

Non-religious courts have been banned on the Islamic State territory and have been replaced with Sharia courts. These courts are authorized to settle civil and family disputes and to try criminal cases, which often end in harsh sentences of corporal punishment and mutilation such as lashing, amputation, stoning and crucifixion.11 Protection of public order and security is the duty of the security services, which fall under the Ministry of Public Security (Dīwān al-Amn al-‘āmm, often referred to as Amni or Emni). These services are responsible for the security of the person of the caliph and the implementation of his decisions and the execution of criminal sentences of the Sharia courts. They also carry out political murders, kidnappings and extortion.12 More than other ministries, the Ministry of Public Security is dominated by officers from the former security services of Saddam Hussein. This explains that the police and the security services are used the same torture methods as were applied under Saddam Hussein.13 In the following I shall sketch how Sharia is enforced in some of the domains of state activity. ← 15 | 16


ISBN (Hardcover)
2019 (Februar)
Islamisches Strafrecht Islamisches Religionsstrafrecht Islamisches Kriegsrecht Islamisches Minderheitenrecht Islamisches Sexualstrafrecht Scharia ranische Rechtsanwaltskammer
Frankfurt am Main, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2017. 158 S.

Biographische Angaben

Silvia Tellenbach (Band-Herausgeber:in) Thoralf Hanstein (Band-Herausgeber:in)

Silvia Tellenbach ist Volljuristin und Islamwissenschaftlerin. Sie wurde mit einer Untersuchung über die Verfassung der Islamischen Republik Iran promoviert und ist Referatsleiterin am Max-Planck-Institut in Freiburg. Thoralf Hanstein studierte Arabistik, Religionswissenschaft und Betriebswirtschaftslehre. Seine Promotion erfolgte zum islamischen Ehe- und Familienrecht in Indonesien. Er ist Fachreferent für Arabistik, Islamwissenschaft und Osmanistik an der Staatsbibliothek zu Berlin.


Titel: Beiträge zum Islamischen Recht XII