Not too long ago, North Carolina approved a bill that prohibits judges in that state from considering “foreign laws” in making their legal decisions. Six other states have acted similarly about “foreign laws.” Why didn’t these states mention “Shari’ah law” as did Oklahoma? The reason is that two federal courts ruled as unconstitutional the singling out of Shari’ah. Thus, those states that want to pass anti-Shari’ah laws have had to resort to using the wider phrase, “foreign laws.”
What is the context of the desire to pass anti-Shari’ah laws? It is clear. Many Americans are afraid, angry, and disgusted about what they think Shari’ah law is and what it justifies. They tend to associate it with misogyny—cruel and unjust oppression of women; intolerance—slitting the throats of apostates, unbelievers, and at times even Muslims; and harsh punishments—beheadings, lashings, chopping off hands and feet, burning people alive, stoning, etc.
Americans often believe that these horrifying actions are justified by Muslims who appeal to Shari’ah. Therefore, it is little wonder that these same Americans want to eliminate the possibility for these horrors to take place in America by going to what is perceived as the root of the problem, namely, Shari’ah.
This paper will focus on several issues:
- What is Shari’ah?
- Is Shari’ah creeping into American law?
- If Shari’ah hasn’t yet crept into American law, how likely is it that it could?
What are Shari’ah and Islamic Law?
Shari’ah is an Arabic word that literally means a way or path to be followed. It typically refers to a moral code that an individual may follow as well as religious law. This brief statement requires some unpacking.
There are two major sources of Shari’ah—the Qur’an (holy book for Muslims) and the Sunnah (the traditions of the founder of Islam, the “prophet” Muhammad as contained in the hadith which are the accounts of what Muhammad said and did). Many Muslims see the Qur’an and Sunnah as the major sources of authority for Muslims and the bases upon which personal morality and public religious law are erected.
The Qur’an and Hadith (compilations describing the Sunnah) are ancient written documents that require interpretation. The process of interpreting them is called “fiqh.” This process has rules, but ultimately it involves the subjective judgment of people, and thus can differ from person to person, place to place, and time to time. So, whereas the Shari’ah can’t be changed, which means that the Qur’an and Sunnah can’t be changed, fiqh frequently changes.
So what is Islamic law? Islamic laws are those laws arrived at as experts of Qur’an and Hadith use fiqh to arrive at judgments that constitute Islamic law. Islamic laws can be different from one group of Muslims or Islamic state to another group of Muslims or Islamic state.
Here is a source of some of the confusion. Many Muslims use the word, “Shari’ah” to refer to both the content of the Qur’an and Sunnah AND Islamic law. It is little wonder that non-Muslims then confuse Shari’ah and Islamic law.
It is even more complicated than this
Muslims agree that the Qur’an and Sunnah should be either partially or fully the basis of Islamic law. The complicating factor is that not all Muslims agree on how to interpret the Qur’an, what comprises the Sunnah, and what factors outside the Qur’an and Sunnah can be included within Islamic law. Consider the following facts:
Muslims are not just one monolithic group that agrees on all things Islamic. Muslims are divided. There are many ways to consider the divisions, for example…
- Sunni and Shi’ah: Roughly 85-90% of all Muslims are Sunni whereas 10-15% are Shi’a. They share the same Qur’an, but differ on what makes up the Sunnah and thus have different Islamic laws.
- Sunni’s are divided: Sunni’s don’t make up one monolithic group. They are divided into different “madhabs” or schools of interpreting the Qur’an and Sunnah. The major divisions are the Hanafi, Maliki, Shafi, and Hanbali madhabs. They all differ on what makes up the Sunnah and thus also differ in terms of their Islamic laws.
- Shi’ah are divided: Shi’a too are divided into many different schools of jurisprudence and thus different in terms of Islamic laws.
- Sufi: Sufi’s are Muslim mystics that interpret the Qur’an and Sunnah quite differently from non-Sufi’s. Sufi’s can be either Sunni or Shi’a, so it gets complicated.
- Some Muslims don’t belong to a madhab: There is a tendency for educated Muslims in the West to attempt to move away from a single traditional school of jurisprudence and instead take a more conservative approach and go back to the Qur’an and Sunnah without relying on those madhabs and their long tradition of interpreting those sources of authority to arrive at Islamic law.
- Radical Muslims: Radical Muslims have largely rejected the centuries of traditions within Islam for interpreting the Qur’an and Sunnah and have rallied around charismatic self-proclaimed scholars of Islam to develop Islamic laws divorced from traditional interpretations embraced by the majority of Muslims world-wide.
- Multiple combinations of laws: Currently, the legal systems in Muslim populated countries are often a mixture of legal types. Some Islamic states claim to have laws that only derive from the Qur’an and Sunnah, other Islamic states have largely borrowed from laws outside Islamic sources, and many are a combination of both.
- There is no authoritative body of Islamic laws upon which all Muslims agree
- Muslims do not all agree on the punishments for breaking Islamic law
Will anti-Shari’ah laws actually eliminate the most egregious actions of some Muslims that we fear?
Clearly not! The United States hasn’t appealed to Shari’ah or Islamic law in the past and yet we have seen the tragedies of 9/11, the Boston bombing, and multiple other acts of terrorism. Terrorists will not be stopped by anti-Shari’ah laws.
Will anti-Shari’ah laws eliminate other horrendous actions of some Muslims that we fear?
This is a more challenging question. Will these laws prevent radical groups of Muslims from passing new laws in America that are Islamic in nature? For example, might such Muslim groups try to pass laws permitting men to have four wives, Islamic forms of marital divorce, adoption laws, stoning adulterers, etc.? We can’t determine the future, but we can see the outcomes of suits brought about by Muslims in the United States that were grounded in questions about Islamic law in the United States. The second section of this paper will look at some of those suits, their results, and how the U.S. legal process grounded in the Constitution has handled these law suits.
Is there a downside to passing anti-Shari’ah laws?
There are some potential problems. Currently U.S. courts look at the laws of other lands to consider marriages outside the United States. The same for other family law issues, such as adoption or custody issues. I don’t think these are the sorts of issues that the framers of anti-Shari’ah laws are worried about. They most likely want to prevent laws from being implemented that would lash fornicators, stone, adulterers, cut the hands off thieves, permit men to beat their wives, or kill a Muslim who converts to Christianity. However, for any of these things to happen, the First Amendment of the Constitution would have to be overthrown since it prohibits the adoption of any form of religious legal code. That would be a federal issue, not a state issue. If the United States has reached that point, then there would already have been a hostile takeover such that no state anti-Shari’ah law could reverse that political tide. Fortunately, right now the criminal laws in the United States are in place that would handle the issues the anti-Shari’ah law framers seem to be concerned about.
I understand the concern, horror, and disgust of the anti-Shari’ah law framers. I share those emotional reactions. However, I think the U.S. legal system is fantastic and even in its current form can handle the situations that elicit my emotional responses.