Islam
What sharia law actually means
The right wants to ban it in America, but do they even know what it is?
Home made signs, some with anti-Muslem themes, were abundant as Tea Partiers gather around the West Lawn of the US Capitol in Washington DC for a second 9/12 rally on September 12, 2010. (Photo by Jeff Malet) (Credit: Jeff Malet) Last week in Tennessee, a Republican legislator introduced a bill that would make following sharia — Islamic law — a felony, punishable by up to 15 years in prison. How such a law would be enforced is not clear; furthermore, it’s probably unconstitutional.
It is clear, though, that an anti-sharia movement is growing in the United States. Last year Oklahoma voters approved a measure that bars courts from considering sharia. Similar measures have now been introduced or passed in at least 13 other states. Indeed, anti-Muslim political operatives have been warning of “creeping sharia” and “Islamist lawfare” for years, though the anti-sharia efforts have gained new prominence in recent months.
But even basic facts about sharia — what is it? how is it used in American courts? — are hard to come by. So I decided to talk to Abed Awad, a New Jersey-based attorney and an expert on sharia who regularly handles cases that involve Islamic law. He is also a member of the adjunct faculties at Rutgers Law School and Pace Law School. He recently answered my questions via e-mail.
Can you define sharia — is it a specific body of laws?
Sharia is more than simply “law” in the prescriptive sense. It is also a methodology through which a jurist engages the religious texts to ascertain divine will. As a jurist-made law, the outcome of this process of ascertaining divine will is called fiqh (positive law), which is the moral and legal anchor of a Muslim’s total existence. Sharia governs every aspect of an observant Muslim’s life. The sharia juristic inquiry begins with the Quran and the Sunna. The Quran is the Muslim Holy Scripture — like the New Testament for Christians or the Old Testament for the Jews. The Sunna is essentially the prophetic example embodied in the sayings and conduct of the Prophet Mohammed.
After the two primary sources of Islamic law, the Quran and the Sunna, the two main secondary sources of Islamic law are: (1) ijma (consensus of the scholars and jurists, and sometimes the entire community), and (2) qiyas (reasoning by analogy to one of the higher sources). Other secondary sources of Islamic law are juristic preference, public interest and custom. Sharia is extremely flexible and subject to various interpretations. In the 19th century, Western colonialism decimated the sharia legal system, replacing it with Western codes. This caused a serious decline in the community of jurists. In addition, there is today a debate that revolves around the failure of the modern jurists — not the system of sharia — to develop the sharia to adapt with the current circumstances of modernity.
How often does sharia come up in U.S. courts? Has there been an uptick recently?
It comes up often because the American-Muslim community is growing. With an estimated 8 million Americans who adhere to Islam, it is only natural to see a rapid increase of Muslim litigants before American courts where sharia may be an issue — especially in family matters.
Can you give a couple examples of when sharia has come up in cases that you’ve handled?
In the past 12 years as an attorney, I have handled many cases with an Islamic law component. U.S. courts are required to regularly interpret and apply foreign law — including Islamic law — to everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, probating an Islamic will and the damages element in a commercial dispute. Sharia is relevant in a U.S. court either as a foreign law or as a source of information to understand the expectations of the parties in a dispute.
Suppose a New York resident wife files for divorce in New York; her husband files for annulment in Egypt claiming the parties were never validly married. A New York judge must determine whether he has jurisdiction and whether state law governs this dispute. If the conflict of laws of New York requires that Egyptian law govern the issue of validity, the court would require expert testimony about Egyptian law that is based on Islamic law.
Another common use of sharia in American courts is in the enforcement of Muslim marriage contracts. Like the majority of Americans, Muslims opt for a religious marriage ceremony. In every Muslim marriage, the parties enter into a Muslim marriage contract. The contract includes a provision called mahr, which is a lump sum payment from the groom to the bride that, unless otherwise agreed, would be due at the time of the husband’s death or the dissolution of the marriage. An American court would require expert testimony to understand what a mahr is, what a Muslim marriage contract is, and to better understand the expectations of the parties at the time of the contract. All of this would be necessary for the court to determine whether the contract is valid under state law.
Is sharia used in U.S. courts any differently than other foreign or religious systems of law?
No, it is utilized the same way as Jewish law or canon law or any other law.
A lot of critics of sharia have cited a case in New Jersey in which a husband cited sharia to argue that he did not rape his wife. What happened in that case?
The case is S.D. v. M.J.R. It’s not about sharia as much as it is about a state court judge who failed to follow New Jersey law. In this case, the plaintiff-wife sought a restraining order against her husband, alleging that his nonconsensual action constituted physical abuse. She testified that her husband told her repeatedly that, according to his religion, she was obligated to submit to his sexual requests.
The trial judge refused to issue the restraining order, finding that the defendant was operating under a religious belief that he was entitled to have marital relations with his wife whenever he wanted. Thus, he did not form the criminal intent to commit domestic violence. But, of course, the appellate court reversed the trial court decision, holding that the defendant’s nonconsensual sexual intercourse with his wife was “unquestionably knowing, regardless of his view that his religion permitted him to act as he did.” The appellate ruling is consistent with Islamic law, which prohibits spousal abuse, including nonconsensual sexual relations. A minority of Muslims mistakenly believe that a husband can discipline his wife with physical force in the interest of saving the marriage and avoiding divorce.
What about stoning, which critics also claim is part of sharia?
The Quran does not provide for the stoning of adulterers. The punishment prescribed in the Quran is lashing. However, there is a prophetic tradition that adopted the Jewish custom of stoning adulterers. Many people describe the American legal system as having a Judeo-Christian heritage. Does that mean that we will stone adulterers as required in the Bible? No.
As long as a provision in Jewish law, canon law or sharia does not offend our constitutional protections and public policy, courts will consider it. Otherwise, courts would not consider it. In other words, foreign law or religious law in American courts is considered within American constitutional strictures.
What do you make of these state-level efforts to ban consideration of sharia in American courts?
Other than the fact that such bans are unconstitutional – a federal court recently held that a ban would likely violate the Supremacy Clause and the First Amendment — they are a monumental waste of time. Our judges are equipped with the constitutional framework to refuse to recognize a foreign law. In the end, our Constitution is the law of the land.
The only explanation is that they appear to be driven by an agenda infused with hate, ignorance and Islamophobia intent on dehumanizing an entire religious community. That a dozen states are actively moving to adopt anti-sharia laws demonstrates that this is part of a pattern. This is not haphazard. Someone — a group of people — is trying to turn this into a national issue. I believe this will become an election issue. Are you with the sharia or with the U.S. Constitution? It is absurd.
Justin Elliott is a reporter for ProPublica. You can follow him on Twitter @ElliottJustin More Justin Elliott.
The final unraveling of Afghanistan?
The massive anti-Quran-burning protests may mark the beginning of the end of America's military misadventure
Afghan policeman aims at protesters by a burning police truck set alight during an anti-U.S. demonstration over burning of Qurans at a U.S. military base in Afghanistan, in Herat, Friday, Feb. 24, 2012. (Credit: AP Photo/Hoshang Hashim) Is it all over but the (anti-American) shouting — and the killing? Are the exits finally coming into view?
Sometimes, in a moment, the fog lifts, the clouds shift, and you can finally see the landscape ahead with startling clarity. In Afghanistan, Washington may be reaching that moment in a state of panic, horror and confusion. Even as an anxious U.S. commander withdrew American and NATO advisors from Afghan ministries around Kabul last weekend — approximately 300, military spokesman James Williams tells TomDispatch — the ability of American soldiers to remain on giant fortified bases eating pizza and fried chicken into the distant future is not in doubt.
Continue Reading CloseTom Engelhardt, co-founder of the American Empire Project, runs the Nation Institute's TomDispatch.com. His latest book, "The United States of Fear" (Haymarket Books), has just been published. More Tom Engelhardt.
Nick Turse is the associate editor of TomDispatch.com and the winner of a 2009 Ridenhour Prize for Reportorial Distinction as well as a James Aronson Award for Social Justice Journalism. His work has appeared in the Los Angeles Times, the Nation, In These Times, and regularly at TomDispatch. This story is a joint investigative project of Salon, AlterNet, and Brave New Foundation. More Nick Turse.
Welcome to the first annual celebrity religion swap
Leaders of the world's most powerful faiths convene to trade their famous converts -- and improve their image
(Credit: AP/Salon) Muslims worldwide groaned upon hearing the news that Oliver Stone’s son, Sean, converted to Islam while filming a documentary in Iran.
Although we — the collective 1.5 billion Muslims worldwide — assume Sean Stone is a fine, upstanding man and sincerely wish him spiritual contentment, we earnestly ask Allah why Islam only attracts controversial celebs (in this case, the son of a controversial celeb) who further tarnish our already toxic brand name?
Continue Reading CloseWajahat Ali is a playwright, attorney, journalist and essayist. His award winning play"The Domestic Crusaders," was published by McSweeney's in 2011. He is the lead author of "Fear Inc., Roots of the Islamophobia Network in America." He is currently writing a pilot for HBO. He is co-editing the anthology "All American: 45 American Men on Being Muslim" published in June 2012. More Wajahat Ali.
What if Tim Tebow were Muslim?
The NFL star has been praised for his public Christianity. It's been different for athletes who follow Islam
Denver Broncos quarterback Tim Tebow (15) prays in the end zone before the start of an NFL football game against the Chicago Bears, Sunday, Dec. 11, 2011, in Denver. (Credit: AP/Julie Jacobson) Tim Tebow’s profession of faith has thrust the mixture of sport and religion into the national spotlight in a way that few can remember.
Students have been suspended for “Tebowing” — dropping to one knee to pray, even if you’re the only one doing it — in a school hallway in New York. Rick Perry claimed that he would be the Tim Tebow of the Iowa caucuses. “Saturday Night Live” lampooned Tebow’s fan-boy love for Jesus. In response, Pat Robertson has claimed that the skit demonstrates “anti-Christian bigotry.” His supporters even called for a boycott of HBO after a Bill Maher tweet made fun of Tebow and his relationship to Jesus after his Denver Broncos lost to the Buffalo Bills.
Continue Reading CloseHateful campaign targets “All-American Muslim”
In a shameful move, Lowe's pulls its ads from a Learning Channel show that dares present young Muslims as people
And now, a dispatch from the Department of Corporate Cowardice: The home improvement chain Lowe’s has pulled its advertising from TLC’s documentary series “All-American Muslim” (Sundays 10 p.m./9 Central) because … Well, because … It’s baffling, really. I guess it’s because the series portrays the vast majority of American Muslims as law-abiding citizens who just want the same right to life, liberty and the pursuit of happiness enjoyed by others. It’s the 21st-century Muslim-American version of a show that might have run on network TV during the civil-rights era in hopes of persuading bigots that black folks weren’t just looking to knock the white man down and take his women.
Continue Reading CloseHow turkey came to our Thanksgiving table
Once shunned by my Muslim family, the bird finally found a place in our home, just like so many American traditions
(Credit: SunnyS via Shutterstock) My Pakistani and American Muslim social circles celebrate Thanksgiving each year alongside our Eid festivities and Super Bowl Sunday parties, featuring homemade guacamole dip, chips and samosas. But it wasn’t always like this. For my family, this marriage between East and West was three decades in the making.
The 1980s: An “Amreekan Holiday”
As a child, I often asked my mother what we were eating for Thanksgiving.
“Food,” she replied matter-of-factly.
“Are we eating a turkey?” I asked.
Continue Reading CloseWajahat Ali is a playwright, attorney, journalist and essayist. His award winning play"The Domestic Crusaders," was published by McSweeney's in 2011. He is the lead author of "Fear Inc., Roots of the Islamophobia Network in America." He is currently writing a pilot for HBO. He is co-editing the anthology "All American: 45 American Men on Being Muslim" published in June 2012. More Wajahat Ali.
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