Washington Post Opinion piece dispelling common myths about sharia
An answer to the thought experiment of what would it look like if a Constitution integrated, rather than separate, religion and state. From a Muslim perspective. The answer might surprise you.
A much-cited 2013 Pew poll reported that a strong majority of Muslims around the world favor making sharia the “official law of the land” in their countries. This was alarming news for many, especially when followed by further statistics supporting things like hand amputation and stoning as criminal punishment. But does a Muslim desire for sharia necessarily mean “sharia legislation”? Does public support for sharia have to mean Muslim theocracy? The answer is “yes” if sharia is defined as scripturally derived religious legal doctrine. But that is a very narrow definition of religious law, and it is an especially inappropriate way to understand sharia. In this article, I will explain why a country that “follows sharia” need not — indeed, should not — be one that “legislates sharia.” I will also show how an appreciation of this distinction — among Muslims as well as non-Muslims — will open up new solutions to the apparently intractable and politicized conflicts between Islamism and secularism in many Muslim majority countries today. Specifically, I will explain why sharia is best understood as an Islamic rule of law, rather than just the collections of Islamic doctrinal rules known as fiqh. Looking at pre-modern Islamic jurisprudence and Muslim history, I show that sharia rule of law systems were made up of two branches: 1) fiqh rules extrapolated from scripture by religious legal scholars articulating right conduct for Muslims, and 2) siyasa laws created by temporal rulers, legitimated on service of the public good. The role of siyasa as the second of these two branches is especially important to understanding sharia as a rule of law system, but unfortunately is virtually absent in contemporary discourses. As a result, sharia-minded Muslims tend to advocate theocratic systems of government. That is, without an appreciation of the importance of how and why siyasa is part of sharia, average Muslims presume that sharia corresponds only to the doctrinal rules of fiqh, thus leading them to believe that state legislation of fiqh rules is the only way their government can follow sharia. In short, they understand sharia as a collection of rules rather than as a rule of law. This then leads to public support of sharia legislation in politics and in polls. The result is theocracy — government articulating and enforcing religious law upon its people. In opposition to this trend, I will show why “sharia legislation” efforts around the world are misguided attempts by Muslims to make their governments more Islamic. Ironically, these sharia legislation efforts operate from a European paradigm of the nation-state rather than pre-colonial Muslim norms of law and government, and they stand in the way of deeper, more creative and authentic thinking about Islamic constitutionalism in the modern world.
A commentary on the strengths and weaknesses of Islamic marriage contract law, with particular attention to women's rights. The chapter includes a suggested new model and corresponding strategy for women's empowerment using tools of Islamic law. Published as Chapter 7 in the 2013 Asghate book titled "Law, Feminism and Religion" edited by Marie A. Failinger, Elizabeth R. Schiltz, and Susan J. Stabile. See www.ashgate.com for more.
A timely piece explaining sharia, written to the American public and policymakers.
An easy-to-read one-page brief summarizing Sharia, and its relevance in the United States.
For many international women’s rights activists, especially those operating from a western context, sharia is believed to be a major obstacle to women’s rights. In order to protect women from Muslim religious law, these advocates often position themselves aggressively against so-called sharia legislation, and sharia in general. I believe that this approach is counterproductive, and ultimately exacerbates, rather than improves, the situation for women living in Muslim-majority countries. In this article I explain how current international feminist strategies have helped create an unwinnable and unnecessary war: that of “sharia vs. women’s rights.” Drawing on observations incident to my work on the zina (extra-marital sex) laws in Nigeria and Pakistan, I argue for an alternative: international women’s rights advocates concerned about the situation of Muslim women would do better not to mention Islamic law at all. This would be a major strategy shift, requiring significant restraint on the part of western secular feminist activists, but I believe it is worth it. Below, I explain how, with this shift in approach, international women’s rights advocates might more effectively contribute to securing rights for women in Muslim-majority countries. This shift could also open up a new appreciation for a wider spectrum of feminism
Despite the pejorative use of the word "qadi" in American constitutional case law, the institution of the judge (qadi) in Islamic legal history provides an illuminating lens through which to consider the nature of Supreme Court judging in the United States, specifically the intertwined roles of final adjudicator and ultimate expositor. Seeing the job of Supreme Court justices through the lens of the Muslim qadi, I believe, helps bring a new awareness of the choices made by Supreme Court justices when faced with the competing pulls of their methodological convictions, the nature of the United States legal system, and their sense of their role within it.
This lecture transcript provides an introduction to Islamic law, jurisprudence, and locations of legal authority for Islamic law and government. Without going into detail regarding its many different geographical manifestations over many hundreds of years, this lecture lays out basic categories of where legal authority has been located for Muslims, and explains the concepts inherent to Islamic legal analysis. Contemporary examples especially relevant to Islamic law and women serve as a practical lens through which to ground the relevance and importance of this topic today.
This article identifies parallels in interpretive theories within Islamic and American jurisprudence. It explains how, although they operate against very different cultures and legal institutions, jurists of both Islamic and American law have adopted a similar range of approaches to interpreting their founding texts, the Qur'an and the Constitution, respectively. This article traces these methodological threads by studying, side by side, Muslim and American advocates of: (1) plain meaning literalism, (2) historical understanding originalism, and (3) reference to underlying purpose and spirit. Seen in this comparative context, it becomes clear that jurists of these different legal cultures often have more in common with each other than with their fellow jurists adhering to opposing methodologies within their own system. These similarities stand as a counterpoint to the stark polarities often drawn between "Islam" and the "West." This article thus fills an empty space in the comparative law literature by identifying phenomena that have been unrecognized so far, largely because the greater Muslim and American legal communities have themselves been talking past each other for so long.
American judges have been judging Muslim divorces in state courts for years, creating a body of case law that not only involves Islamic family law doctrines, but also reveals interesting insights about American Muslim marriage practices generally. This article reviews the holdings in some published cases, exploring questions of overlapping jurisdictions (state and religious law), and how enforcement of Islamic contract-based claims such as the mahr (bridal gift) have fared in American courts. The article draws from interviews with lawyers, social workers, and imams who have advised American Muslims negotiating the process of marriage and divorce in the United States. A brief survey of relevant literature, as well as some suggestions for future practice, is interwoven in the presentation. (with co-author, Najeeba Syeed-Miller)
In 1979, Pakistani President Zia ul-Haq purported to "Islamize" the laws of Pakistan with a new criminal code, the Hudood Ordinance, which included, among other things, the crime of zina (extramarital sex). Four eyewitnesses were required for prosecution of the hadd crime of zina, following Quranic text and established Islamic legal doctrine. However, the zina provisions of the Ordinance added the crime of rape, termed "zina-bil-jabr" (zina by force) as a subset of zina, and consequently required four eyewitnesses to prosecute this crime as well. This legislation had the tragic result of rape victims being suspected of zina for lack of four eyewitnesses to prove the non-consensual nature of the sexual intercourse. This article explains how the rape provisions of Pakistan's Hudood Ordinance directly contradict established Islamic law on zina and rape. I begin with a review of the crime of zina in classical Islamic law, exploring the jurisprudential rationale for the four witness requirement, and detailing why rape is not treated as a subset of zina, but as a fundamentally a different type of crime (i.e. a forcible taking, rather than a mutually-consented act). I then comment upon the textual and historical contexts of the Qur'anic verses on zina, suggesting a woman-sensitive understanding of the topic. The ultimate goal of the article is, first, to debunk the idea that Islamic law demands zina prosecutions as they have been legislated and carried out in Pakistan recently, as well as to reorient the discourse on zina in the direction of seeing Islamic law as a tool for women's empowerment rather than oppression.
This article takes a comparative approach to propose an improved test for the doctrine of unconscionability in American contract law, by borrowing relevant concepts from Islamic law. Section 2-302 of the Uniform Commercial Code (U.C.C.) identifies "unconscionability" as ground for invalidating a contract, but the legal definition of "unconscionable" in common law and American case law has long been imprecise and unclear, sometimes even as vague as that which would make one "gasp." In this article, I take inspiration from Islamic legal doctrine on oppressive and unfair contracts and, with this in mind, review American case law on unconscionability, noting several common themes about what makes dealings fundamentally unfair. Specifically, I look at Islamic jurisprudence on riba (usury, lit. "increase") which invalidates contracts in which one party receives an undeserved profit at the expense of the other. Riba is of two types: riba al-fadl, in which a contracting party acquires an excess profit, and riba al-nasi'a, in which a party gain an unfair advantage by speculating on uncontrollable risks. In this article, I borrow from these Islamic legal principles, along with some concepts of unfair bargaining power found in American case law, and propose a two-prong test for "unconscionability." The first prong focuses on whether one party achieved a potentially unjust enrichment under the contract, and the second looks to whether there was an oppressive relationship between the contracting parties. A court applying this test must find that a contract meets both prongs in order to declare the contract unconscionable.