Adnan R.

Khan Islamic Law: Source: Interpretation, and Authority Professor Timothy Waters December 1, 2010

The United States and Sharia Law: Are the two compatible? Questions to Consider: 1. Have there been any Sharia states after Alis death? If so, when? If not, why not? 2. Is democracy actually compliant with Sharia? How or why not? 3. Are principles that the United States espouse really the same as core Islamic principles, or are those who make the claim merely seeking approval of Western powers by conforming the religion to their standards? 3. Can Sharia compliant courts coexist with secular U.S. courts? If not, what makes the United States different than states that already have Sharia courts such as United Kingdom and Canada? Readings: Asad 1-6 Coulson 207-210 Rauf 108-111

I. Introduction The United States is the most Sharia state in the world, or so it has been claimed because of founding principles such as equality, democracy, and most importantly the pursuit of happiness are claimed to be Sharia compliant. In order to discover the authenticity of this claim, exploring characteristics of various Sharia states such as early Islam and modern day Sharia states is necessary. These states will then be compared to the United States to authenticate or disprove this claim. In addition, if the United States is Sharia compliant, is it possible for U.S. courts to develop Sharia courts without violating the Establishment Clause? I concluded that the United States, while obviously not a Sharia state, is no less Islamic than any state in the world today. In addition, the U.S. can develop Sharia courts without contradicting its own principles such as the separation of church and state. II. The True Islamic State A. Islamic Law during the Messenger In the formative years of Islam when nomadic merchant tribes dominated Arabia, concerns with hell had very little relevance in daily life. Muhammads message,composed mainly of religious and moral claims, posed little threat to the political structure of the trading hub known as Mecca. Islam started out as a response to what Muhammad and his followers viewed as social pitfalls which needed to be rectified1. However, Muhammad preached the equality of all humankind, which in time became a threat to the elite, ruling class in Mecca2. Eventually, this led to the persecution of Muhammads early followers and the migration of Muslims seeking refuge in Yathrib, the city now known as Medina, in a migration now known as the hijrah.

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Watt 4 Feisal 13

The hijrah put Muhammad in a position of power which he gradually attained through several agreements made for the newly arrived Muslims in Medina3. However in these early years, Muhammads position was far from a head of state as he fit more the role of arbiter. Validation for this role can be found in the Constitution of Medina, various documents with political articles which only mentioned the Messenger his role as the settler of disputes4. The Messengers lack of power in the early years is clearly evidenced by his continual askance of tribal leaders to enforce his proclamations. Examples include the affair of the Lie and punishment of the Jewish clan of Qurayza for their siding with the enemy during a siege of Medina5. This clearly illustrates the Messengers power was far from solidified. This role as arbiter created the circumstance in which the Messenger predominately dealt with disputes ad hoc, as they came to him6. Muhammad, content to continue in this manner even after his power was solidified over Medina and Mecca, made no effort to codify these laws7. Thus, in addition to the obvious Quranic revelations becoming law, legislation formed as direct response to direct questions posed to the Messenger. These Quranic revelations however often came with reasons for the revelation8. The questions that were posed to the Messenger provided a historical and social context for the rules. There were exceptions, however, such as zakah, or a charity tax mandated to all Muslims, which was not a response to any question posed to the Messenger9. In addition to his role as arbiter providing a basis for legislation for the early Islamic society, the Messenger also permitted his companions to use their own judgment in legislative
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Watt 4 Watt 21 5 Watt 22 6 Coulson 22 7 Coulson 22 8 Dien 4 9 Dien 4

manner. This practice became known as ijtihad.10 For example, Muhammad after the Battle of Badr when considering ransoms for prisoners listened to conflicting views of his followers until heeding the advice of Abu Bakr. Furthering this practice, the Messenger made a follower named Muadh a judge in Yemen who proclaimed when making his judgments, would refer to the Quran and then Sunna. Failing to conclude a solution based on these two sources, Muadh said he would use his best judgment, which was met with the Messenger asking God to bless Muadh showing his approval11. It is important to reiterate that the Messenger held no real political power for the first decade of his preaching, and later when he was accused of aspirations of power due to the spread of Islam, the Messenger merely responded that he was only a warner chosen by God. Muhammad was sent by God to warn the community of miserliness and being consumed by their own power.12 Thus the Messenger claimed his position was a necessity due to the growing power of Islam, and revealed in the Quran that Muhammad was not a musaytir, or controller.13 Muhammad was chosen by God to not only to show humankind the way to lead their lives morally, spiritually, and socially, but also teach the community how to function as a political entity. B. Islamic Law after Muhammad: The Rightly Guided Caliphs After Muhammads death, the first thing his close friend and eventual successor announced, If any one worships Muhammad, Muhammad has died; but if any one worships God, Fod is living and does not die, establishing the humanity of their leader .14 This allowed the continued practice of the leader of the Islamic community to be elected by a council of the
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Watt 4 Watt 5 12 Watt 27 13 Quran 88:22 14 Watt 31

leaders or representatives of various tribes who made up the Muslim community. These leaders elected Abu Bakr, who in order to be established as the leader required a Bayah, or the approval of the Muslim community. Indeed there were several competitors for the role which would eventually be known as the caliph, including the Prophets cousin Ali, and the leader of a rival tribe, Sad Ibn Ubadah.15 Neither became leader after Abu Bakrs approval by the community. Following Abu Bakrs death, this practice of Bayah continued with Umar bin alKhattab. After consulting with a council similar to the one that elected Abu Bakr himself, the first Caliph named Umar his successor who was then approved by the community.16 This set the legal precedent that was to be followed in Islamic law, requiring a council and then approval to establish a leader. The Bayah does not require unanimity and must be voluntary. The number of electors required is disputed, from all the upright men of the whole empire to what we may call a representative quorum.17 However, as time passed, Bayah became more of an homage to the successor rather than a legitimate process. With the expanding Muslim empire, new concerns and issues needed addressing. Scholars discussed at length in the Mosques in mosques encircled by students.18 However, for an acceptance of law, it required the consensus of the people, or ijma. The period following the Prophets death, however, primarily relied on ijtihad. The people relied on Ijma to resolve issues predominately when ijtihad resulted in significantly conflicting views19.

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Rauf 88 Rauf 89 17 Rauf 89 18 Dien 11 19 Dien 6

Establishment of common legislation mainly occurred through consultation, specifically regarding cases that involved public interest. Leaders found great room for discretion in legislative issues by considering social policy and necessity. Laws were created and also suspended when they were deemed inappropriate to the context of new circumstances.20 For example, the punishment for theft is prescribed by Quranic text. However, during time of famine, Umar justified an injunction against this rule because the text was based on the grounds that the time when the act was committed was one of famine; thus necessity can justify what is prohibited. The rule therefore applies when one thieves out of personal greed, not personal need.21 Thus less strict punishments were enforced during this period. Another example illustrating the evolving nature of Islamic Law as dictated by public interest was Alis suspension of the rule of allowing straying camels to wander free. Public interest dictated the need to control the significantly growing number of stray camels and untrustworthy people who took advantage of the rule by claiming the lost camels as their own.22 These cases and more set another early important precedent in addition to the bayah. This personal discretion in congruence with public interest and necessity, while also considering the reasons for the rules, allowed Shariah to become an evolving law not restricted to literal readings. C. Islam after the Orthodox Caliphs Islam after Ali witnessed a significant change, specifically with selection of leader based on hereditary succession rather than electing a candidate based on merit. The establishment of

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Dien 6 Dien 6 22 Dien 6

the Ummayad dynasty by Muawiya led to Islamic states being ruled by different dynasties until the dissolution of the Ottomon Empire after World War I.23 The renown scholar Abu Hanifa, whose teachings led to the founding of the Hanafi school of thought, rejected the position of chief justice for two different dynasties as a protest against the hereditary succession of the government.24 This led to Abu Hanifa being imprisoned for life. Abu Hanifa himself espoused the practice of referencing to the Quran, then Sunnah, and finally itjihad using analogy to form rulings on law.25 This practice hearkened back to the practice of early Islamic pre-dynastic rule. This methodology set Abu Hanifa apart from other scholars of the time who attempted to gain favor with their rulers by curtailing to their rulers values in order to gain prominence.26 Legal scholars began adapting Islamic law to fit the cultures of their respective regions which led to variations in the understanding of the law. The Ummayads themselves began absorbing foreign concepts and institutions due to the necessity of self-preservation.27 Practices such as the controversial dhimmis, or taxes on non-Muslims, became much more elaborated upon by the Ummayads. The emperors began to emulate fides of early Roman law rather than the dhimma set forth by the Prophet Muhammad.28 Thus the Ummayads used basic customary law of the societies they conquered and elaborated upon them with Quranic rules, which were then further influenced by foreign legal systems.29 What began as an evolving common law system based on societal need and public interest became a codified law with various influences not limited to Islamic sources. Islamic
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Dien 7 Dien 13 25 Dien 14 26 Watt 39 27 Coulson 27 28 Coulson 27 29 Coulson 24

Law, or Sharia, was no longer recognizable as it once had been under Muhammad and the rule that followed by the Four Rightly Guided Caliphs. III. Contemporary Islamic Law A. Saudi Arabia Few countries today practice Sharia law in the world today. Several states claim to be Islamic such as Sudan, Pakistan, and most obviously, Saudi Arabia. However, states such as Pakistan are more of a hybrid between the modern democracies with Sharia institutionalized into law, an example followed by most majority Muslim states. These states essentially allow Sharia law, but in the end these laws are subject to the state constitution and jurists uneducated in Islamic law. Thus these states cannot be considered Sharia states; more states with Sharia influences.30 Other states such as Sudan are rife with corruption and civil war. The best example of a Sharia state in the modern world is Saudi Arabia. However, the first problem with Saudi Arabias Sharia law is its leadership. Abdul Aziz al-Saud established todays modern dynasty after world recognition in 1927.31 Abdul Aziz first proclaimed that legal scholars would be able to disagree with the rulers of the new state, but quickly realized that the ulema would have to support his position whole heartedly in order to maintain power. The new king quickly established his rule under the guise of Sharia with the strong support of the Wahabi movement while incorporating Bedouin principles.32 Saudi Arabias legislation comes first by observing traditional sources, and then in the form of nizam (plural: anzima). Anzima are doctrines issued by the King and sometimes a council of ministers meant to regulate the behavior of the community. These doctrines are then

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Otto, Jan Michiel. Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy . Amsterdam University Press, 2008, p. 8 31 Dien 126 32 Dien 126

codified as Saudi law. Finally, Saudi law is supplemented by royal decrees where there is absolutely no consultation, a vital part of Sharia law.33 Thus Saudi Arabia which claims to practice Sharia law contains three faults which establish the claim as disingenuous. First the hereditary succession of rule directly contradicts a group of representatives or leaders choosing a leader through merit. Second, Saudi Arabian law is directly influenced by nomadic Bedouin principles, a foreign influence on Islamic thought. Finally, the anzima, as legislation which can or cannot be formed by consultation and royal decrees are codified into law, which conflicts with the Sharia value of consultation in forming opinions or legislation. Muhammad Asad, a polish journalist laments, There has never existed a truly Islamic state after the time of the Prophet and of the Medina Caliphate headed by the Prophet's immediate successors.Whatever forms of state and government came into being in Muslim countries after that first, earliest period were vitiated, in a lesser or higher degree, by ideological deviations from the erstwhile simplicity and clarity of Islamic law, or even by outright deliberate attempts on the part of the rulers concerned to deform and obscure that Law in their own interests."34 B. States with Islamic Law Influences Discuss more in-depth the problems with Islamic States that claim only Islamic influences, like Pakistan or Malaysia. Saudi Arabia is an example of a country claiming to be fully Sharia compliant. C. Contemporary Legal Thought

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Dien 131 Asad x

The belief that there is no true Islamic State is further espoused by Muhammad alGhazali, a respected Islamic scholar from Egypt. He outright critiqued Saudi Arabia as utilizing Islamic Law based on a Bedouin jurisprudence and as such can only offer a puerile understanding of creed and law.35 Al-Ghazali further critiqued modern Islamic thought as practiced by several states and groups having a lack of rationalization, prevalent in early Islam, as evidenced by the rulings of the Rightly Guided Caliphs.36 Islamic extremism is a result of a prevalence of weak hadith influencing modern Islamic thought which led to stagnation and prejudice. Ghazali stated that ridiculous claims are born out of ignorance and the only solution is for true Islamic states to institute a stringent understanding of Islam in its totality.37 Sunna requires understanding though analogy and the circumstances involved, and corruption of Islamic principles stem from literal interpretations of Hadith. Examples AlGhazali gave were the covering of women which directly conflicted with the Prophets actions and other commonly accepted guidelines in Islam (such as lowering ones gaze in the presence of women, which would only be redundant if the womens faces were completely covered).38 Another example Ghazali provided was the equality of women. The scholar pointed out the Prophet saying the essence of humankind was split into man and woman, thus men and women were equal.39 Ghazali went on to say women could hold position of power including governorships, citing examples of Umar having women in high posts. Ghazali reached these conclusions using reason and understanding the circumstances provided in the Hadith. Sharia required the actual objective of the law to be understood and the
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fundamental principle of Shura, or consultation was vital for Sharia.40 Without a shura and understanding the objectives of Islamic law, a Sharia state would not exist. Ghazali points out that this balancing between circumstance and the context of the laws were principles used by the Rightly Guided Caliphs during their rule. Critics of Ghazali argue that his ideology is too liberal, yet many of the issues concerning Ghazali were espoused by Yusuf Qaradawi who had a close association with the Muslim Brotherhood, a undoubtedly conservative organization created by the controversial Sayyid Qutb. Qaradawi believed the fanatical principles of the Muslim Brotherhood were important during the time of Nasir in Egypt, but did not apply in the new millennium. Qaradawi believes in a balancing of the application of law, understanding of Islam, and using reason and moderation in creating Sharia law. This balancing, or wasatiyya, is one of the main features of Islamic law.41 Qaradawi espouses a process of gradual development of legislation, involving the step by step development that follows the initial law. Qaradawi maintained that Islamic jurisprudence has always evolved in this manner from the time of the Prophet, citing the example of the gradual prohibition of alcohol, practices of prayer, and the payment of zakah. The common trend is using rationality and balancing when applying Islamic jurisprudence, which is a practice not found in current Islamic states which claim Sharia law. Saudi Arabia, which claims to be an Islamic state and one that the most of the world views as an example of an Islamic state, is thus concluded to not be in fact an Islamic state. Instead, Saudi Arabia continues the practices of other states post the rule of the Four Rightly Guided Caliphs. Saudi Arabia is yet another state with Islamic law which have been corrupted by alien laws. IV. The United States and Islamic Law

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A. Similarities in U.S. Constitution and Sharia The United States is not a state that follows Sharia law. This much is obvious, yet still needs to be pointed out as this concept is not what is being asserted. However, the United States does embody Islamic ideals and practices making it Sharia compliant state. Both states, the United States and the hypothetical Islamic State, use documents which contain truths which are said to be self-evident.42 This natural law is the foundation of United States government found in the Declaration of Independence. Natural law is that which is fundamental to humankind this same law that is fundamental to humankind proclaimed in the Quran. The Quran claims that natural law is Gods law.43 The Declaration of Independence draws upon the Abrahamic ethic (which Islam follows) of natural law stating outright That all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. These beliefs, fundamental to the United States, are essential to Islam.44 Next, the claim that the United States is a Sharia compliant state is as follows. Islamic scholars state that five areas that Sharia law must protect and further are life, mental well-being, religion, property and wealth, and family. Thus, the United States, vowing that these are the inalienable rights of all her citizens, is Sharia compliant. Muhammad Asad asserts that a state does not have to be predominately inhabited by Muslims to be an Islamic State, it need only apply the tenets of an Islamic nation and incorporate those tenets in the states constitution.45 The Declaration of Independence explicitly points out that states exist first and foremost to secure these inalienable rights of the citizenry.

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Rauf 82 Rauf 82 44 Rauf 83 45 Asad 1

Other principles regarding democracy are fully compliant with Sharias rule of bayah, precedent set forth by Abu Bakr and Umar. Some of these rules are that the government is not legitimate without consent of the governed and that the governed may not be coerced or obtained under duress. Other principles sound very American, in that the Islamic leader must uphold the divine prescriptions just as the elected leader must uphold the Constitution.46 Checks and balance, a core element of United States government, are also essential to Islam. Abu Bakr said, if I do wrong, set me right, which unequivocally means that the leaders law is not always right and must be checked by others. The leader is not infallible, thus checks ensure the government does not abuse its power. What makes the United States more compliant than other countries which claim Islamic Law is the freedom of the people and inalienable rights. Many Muslim countries which are democratic still ignore this core concept of checks and balances.47 The abuse of power by Muslim leaders where they ignore their constitutional powers and abuse the rights of their citizens, though not limited to Muslim countries, is unfortunately prevalent. [elaborate on examples: Saudi Arabia, Sudan, Nigeria, Iran, etc]. Its the United States system of checks and balances that can give credence to the claim that the United States is more Sharia compliant than most other Muslim states.48 The abuse of power and corruption that exists in many Muslim countries that claim to be Islamic such as Nigeria, Saudi Arabia, Afghanistan, Iraq, and Pakistan does not exist in the United States. At least these power abuses do not exist on a level that infringes on the basic rights of American citizens. B. The Issue of Church and State

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The biggest issue one may point out in the difference between Islamic and United States law is separation of Church and State. First, the very principle of separation of Church and State in a literal sense does not apply to Islam as Islam is not a church in an organizational sense. This may seem a simple concept, yet the purpose of this differentiation is that in order to be an Islamic state, the law and authority must be derived from God. There is no claim in Islam that either the government must fund organizational bodies of Islam only and treat other religions unequally, or fund any religions organizations at all. As long as the government, in the words of Antonin Scalia regarding the United States, derives its moral authority from God, the government is Islamic.49 Regarding freedom of religion, the Quran states, Say: O disbelievers: To you your religion and to me mine.50 Thus pluralism of religions is a fundamental human right under Islamic law. Diversity of religious beliefs is not a foreign concept to Islam, as the four Muslim madhhabs are all recognized as equally valid. The controversial practice of dhimmis, or taxes on non-Muslims, is an often debated practice which many today claim only applied in certain conditions during the time of the Prophet, thus no longer applicable. In fact, many look to the Constitution of Medina where it states, Non-Muslim members have equal political and cultural rights as Muslims. They will have autonomy and freedom of religion.51 The practice of the jizya tax, as already pointed out, have been thoroughly embellished by the Ummayad dynasty, drawing upon the fides of Roman law. Once again, as scholars such as Al-Ghazali and Qaradawi point out, Muslim leaders must use reason and context in applying legislation in issues such as dhimmis. C. Sharia Courts in the United States
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Rauf 106 Quran 109:6 51 Constitution of Medina

Applying Sharia courts in the United States is completely possible without favoring Islam over other religions. For Sharia to be acceptably applied in the United States, one must only look to examples set in the United Kingdom and also draw upon examples set in other secular Islamic states. First one must understand the different types of acts that can be tried in Sharia courts. They must be applied two of three categories of muamalat, or worldy acts. The three categories are family law, transactional and contract law, and criminal law. Considering criminal law is non-issue as it would be a direct contradiction to already existing U.S. law. Thus family and transactional law is where Sharia courts would come into play. How would this work? Essentially Sharia courts would adopt principles set forth in arbitration. All parties involved in the transaction would have to agree to settle their dispute in the government sanctioned Sharia court. As long no gross contradiction to U.S. law exists, the decision would be binding pending approval of secular courts. In cases of contradiction, U.S. secular courts step in and overturn such decisions as is done in arbitration. Setting personal status courts do not violate this separation as long as there is personal agreement by both parties and the decisions are ratified by secular state courts and the opportunity exists for other religious groups to establish their own courts should they please. A concern that may arise are societal and cultural pressures to adhere to these hypothetical Sharia courts. Here responsibility would be placed on first trust that the Sharia court judge would rule fairly, but more important would be placed upon the secular courts that ratify decisions to begin with. Again one looks to arbitration where duress sometimes exists. In these situations, courts sometimes do overturn arbitration decisions, but are hesitant to do so because of difficulties with proof and the self-defeating nature of overturning arbitration

decisions. However, issues with duress concern more arbitration law in general, not the hypothetical Sharia courts. V. Conclusion