Mar 23, 2016 by SOFIA ALI-KHAN, in Sofia Answers Would-Be Allies

Years ago, before I went to law school, I was thinking about getting married. I wanted to know what that meant, legally. I’m a pretty good researcher and I figured if someone could just point me toward the right books, I could work it out.

So I went to the local law school and found the library. I asked the librarian to point me towards the books on marriage and divorce. And the librarian very sweetly asked what exactly I was looking for, and then explained to me that the law didn’t work the way I imagined.

It turns out that to find American law that governs the family, you would have to look in many different places. You might have to look at the relevant state statute, possibly the relevant state regulations, and most likely the relevant state case law (the cases related to your specific legal situation over the last several years, or even decades, and across various levels of courts). Which state or states’ laws applied might depend on where you got married, where you signed certain documents, which law those documents said would apply, where you lived at the time your legal problem arose, or where your child lived at the time your legal problem arose. If the issue you have is not something that’s ever been decided by your state legislature or court system, the law will depend on the reasoning of at least one and maybe several judges.  If the matter at hand involves a Constitutional issue, you'll also need to take a look at federal case law.

Law is complicated. But it’s not just a bunch of folks making arbitrary decisions about your life. Every court decision has to justify itself based on previous decisions and not violate certain established principles of law. Every statute has to be passed through the state legislature and every set of regulations goes through a separate approval process. The process doesn’t allow a lot of great big leaps; it’s been built brick-by-brick over time, responding to our changing values and ideas about what the rules on families are and should be. It’s a whole system, from the way courts and evidence work and how lawyers are trained and licensed, to how legislators get elected and pass laws, and how judges reason through their decisions. No one piece of it, taken and applied out of context to a legal problem, would be a fair or just or sensible way to do things. But, taken all together, it is an impressive system for resolving conflict and minimizing chaos, especially when things fall apart in our personal lives.

Shariah, which people use to mean Islamic law, is equally complicated. Or it was when it actually existed as a complex system of governance in the Muslim world, hundreds of years ago. Muslims have not yet been able to establish shariah as a system of governance or even a well-developed legal system in any contemporary nation on Earth, for a variety of reasons. So, there is no actual threat of shariah becoming the basis of law in the United States of America.

What is shariah and where did it come from?

Shariah law was once a dramatic innovation in the way people governed themselves. It was a system of governance derived from the Qur’an and Sunnah (or traditions of Prophet Muhammed, peace be upon him), that, in a precursor to modern democracy, limited the power of the ruler. It depended on a well-educated and committed class of scholars whose job it was to interpret divine law, so that the ruler might govern subject to its limitation. This limitation was considered essential to Islamic governance because it established the freedom of the individual to achieve his or her spiritual potential without coercion.

Before 1300 A.D., Shariah law existed to greater and lesser degrees across the Muslim world, which was made up of several empires and sultanates that stretched from Morocco to Malaysia. Shariah was not a book of laws, or even several volumes of books. Instead it was all of the knowledge and institutions that made up the system of governance: scripture, prophetic tradition, as well as the scholarly tradition, courts, schools, established methods of resolving disputes, and, over time, the accepted legal authority of several theories of law or schools of jurisprudence. In an era before the telephone, television, trains or internet, the specifics varied from place to place within the Muslim world. Still, they all referenced the central touchstones of the Qur’an and Sunnah, and they all had these central aims: to make Muslim societies more just and to limit the power of the ruler or the elite by bending it to an agreed upon moral code.

This worked because there were scholars and jurists who, by coming up with clear and replicable ways of solving problems, gained popular support and reputations for integrity. These scholars periodically travelled long distances, visiting other centers of legal scholarship to enrich their own knowledge, share concepts, and develop broader consistency across the Muslim world. This complex system of law and institutions were developed during a period when modern democracy had not yet been born and Europe was in what has been referred to, for its lawlessness and warfare, as the Dark Ages.

Shariah represented an historic movement towards rule of law—a world in which people were more free from the arbitrary exercise of power, and in which people could expect that many legal rulings relating to their persons and property were rationally related to an articulated moral purpose. Shariah, as rule of law, included some remarkable advances towards pluralism, egalitarianism, and liberty. For example, the prophet’s covenants and the constitution of Medina protected the rights of non-Muslims, including Christians and Jews, but also polytheists.   In all of the four major schools of thought within Sunni Islam, divorce has always been permissible and could be initiated by a woman. Further, women had an assumed right to custody and financial support in the first two years of their child’s life, female infanticide was criminalized, and women had the right to inheritance and to own property. These were freedoms not generally available in the Western world until hundreds of years later, in the 19^th century, and they came at great personal cost to the women who fought for them. During an era when slavery was common, manumission (or the act of freeing slaves) was a common theme in the application of Shariah law; according to the Qur’an and Sunnah, many transgressions can only be rectified by the freeing of slaves. These are but a few examples of the ways in which application of Shariah was a movement towards an equitable society.  Shariah was not, needless to say, uniformly progressive or ahead of its time.  It was a system, after all, derived by fallible human scholars living 700 years ago.

From 1300 through 1900 A.D., the Muslim world continued to be organized into several empires, all of which were responding to the emergence of the European nation-state, war, and the encroachment of Western colonial interests. Towards the end of this period, some critical changes were made to Shariah in an effort to consolidate the weakening power of, for example, the Ottoman Empire.  There was an effort to codify law to create consistency and compete with the new, efficient bureaucracies of Europe.  Codification meant the reduction of law to written rules.  Written rules robbed scholars of the authority they derived from interpreting and applying the law, and their ability to enforce limitations on the power of the ruler.  The Shariah system was thus in a state of decline even as Europe became a colonizing power.

Colonization was, for the most part, a period of 300 years (between 1650-1950 A.D.) during which Europeans carved up non-European lands in order to exploit labor (human beings, that is) and natural resources for the benefit of their home countries. Europeans arrived in inhabited and often well-developed societies, established arbitrary national boundaries and imposed legal systems from their own countries, often by force. As a result of colonization, very few of the robust institutions that made up Shariah legal systems survived into the twentieth century.

In many cases, local tribunals in the colonized areas remained authorized to apply principles based on Qur’an and Sunnah to family matters or inheritance. However, most or all of the overarching infrastructure of the indigenous legal system as a whole, including systems of training scholars, methods of administering courts, and dynamic schools of jurisprudence, evolved over hundreds of years, was destroyed. What was partially preserved or codified in books was no longer a living system of governance, continually modified by highly trained scholars with a deep sense of their own history and tradition.

What does colonialism have to do with it?

To understand why this vibrant tradition died, we have to think about colonialism for a moment. Societies around the world, and throughout the Muslim world, were occupied by Europeans for 200-300 years or longer.  These foreigners spoke different languages, lived under different laws, practiced a different religion than the populations they presumed to rule over. They considered themselves superior to and imposed their ways upon societies they occupied. They were often brutal towards indigenous people and willfully destructive of their social structures, cultures and traditions.  Or, if they felt the status quo useful for their purposes, they were equally as ferocious in maintaining it, even if it happened to be feudal.

Three hundred years is a very long time. The span between the birth of my parents and the birth of my children (3 generations) is about 70 years. A person living under colonial rule could expect that only their great-great-great-great grandparents would remember a time before their county was run by foreigners. No one within their living memory would remember a time before colonial occupation and rule. This was before most folks could read and write, and before recording equipment of any kind. And the result was that indigenous populations retained a somewhat fragmented understanding of who they were before colonial rule. Only certain parts their lives—things solidly in the private sphere--survived. Ways of praying, the language spoken among family, the clothes worn to bed, food preferences and preparation. But methods of education, systems of governance, means of livelihood, the social order, legal systems: all of these were stunted, transformed, or eliminated for the purposes of the colonial authority.

The colonial period lasted from about 1650-1950 A.D. and, by the end of that period, Shariah, as it had been, no longer existed. Pre-colonial Shariah had never existed in the world of nation states, and was never adapted to the nation state or applied to the complexities of modern life. What remains has limited applicability in the modern world, because its evolution was interrupted. Just now, several decades on from the end of the colonial period, modern scholars are in the process of drawing on the tradition of Shariah to create a viable, indigenous system of governance in many majority-Muslim countries. Institutions—schools, courts, ways of building on issues already decided (systems of reasoning, codification, abrogation, precedent) are just now being revived, reexamined, and rebuilt, often in the chaotic context of popular rebellion (as in the Arab Spring), towards a modern system of governance based on Shariah. And that’s arguably a good thing, or at least a more truly democratic thing, because colonial law never reflected the moral code or interests of the people upon whom it was imposed.

What does Shariah look like today?

It is important to recognize that no Muslim nation has a modern, viable Shariah system of governance in place today. Many predominantly Muslim countries have opted to maintain a fully secular system of governance, based on European colonial law. In Sudan, many personal matters are subject to elements of Shariah and customary law, imposed by local elders or leaders. This exists in a separate tier from formal law, which is itself a combination of elements of Shariah with British colonial law. In some parts of the Middle East and South Asia, we also see a mixture of colonial law with elements of Shariah, imposed through a colonial court system (and often some specialized Shariah courts). In these cases, we routinely find haphazard and poorly reasoned application of random and sometimes regressive punishments in the areas of family or criminal law, with little reference to or adherence to Shariah precedent, or its larger theories of law. These states are frequently ruled by dictators, propped up by Western states. By contrast, the actual people of those states have frequently developed popular movements calling for “rule of law”-- a modern, democratic system of governance based on Islamic principles of fairness and justice. These movements do not reject Shariah as the basis for governance; they reject the way in which inadequate post-colonial regimes have interpreted and applied Shariah.

In Malaysia and Indonesia, both diverse societies with significant non-Muslim populations, national constitutions guarantee freedom of religion.  Malaysia imposes Shariah law upon all Muslims in family, inheritance and criminal matters, but has alternate civil and criminal legal systems for non-Muslims, which do not necessarily reference any element of Shariah.  Indonesia has, until recently, been governed by a civil law system that includes a mix of customary law and Dutch colonial law.  However, there appears to be a strong, but haphazard movement towards the implementation of Shariah law on particular matters and in particular regions.

In Saudi Arabia and Iran, we see the arbitrary imposition of what the ruling elite like to claim is a pure form of Shariah law. In both states, a critical element of actual Shariah is missing: trained legal scholars lack the power to reign in the ruler or the ruling elite. Instead, the ruling elite has arbitrarily developed or selected, out of context, outdated rulings or legal positions that support or justify their own power.  In the Saudi example, no case carries precedential value; judges are selected by and serve at the pleasure of the ruling elite, and do not have to exercise consistency or refer to any previous case when applying their rulings. Nor are there any appeals. This is not, in any real sense, Shariah.

It almost goes without saying that the “Shariah” referenced by the Taliban, and more recently by Daesh (ISIS) is of the same variety, if not magnitude, as the Saudi model.  That is, it is not actually Shariah.  It is rather the manipulative use of the word Shariah to legitimate extrajudicial exercise of power, and terrorism.

Terrorist groups are, by definition, not state entities but guerrilla fighters. As such, they have lacked not only the capacity, but the opportunity to establish a true system of governance. Although Daesh now holds territory, its leadership is clearly not concerned with abiding by moral limitations on their own violent agendas. And so, in an effort to claim legitimacy, terrorist groups use the word 'Shariah' arbitrarily, and declare or apply cherry-picked rulings to situations as it suits them. To accept this behavior as representative of an actual Shariah system is simply wrong. It also gives terrorists far too much credit and far too much credibility.

Is Shariah a threat to the American way of life/legal system/government?

All of this is to explain that the threat of Shariah law taking over the American legal system is a boogeyman. It’s not real. It is ridiculous to think that a once relatively sophisticated tradition ravaged by colonialism, which has not been developed to address the complexity of the modern nation-state, could take the place of the United States’ 200-year-old system of democratic governance.  It is ridiculous to think that American Muslims, who make up 1% of the adult population could, even if they wanted to, make that happen. The United States does, after all, require that Congress pass laws, and provides for judicial review of those laws.  For the record, there is no evidence that American Muslims want Shariah to form the basis of the American government. It is likely, in fact, that most American Muslims have as cursory an understanding of Shariah as I did of American family law back in 1997. American courts have addressed issues of Shariah law only in very limited circumstances—for example, when a support payment was governed by some provision of a written Islamic marriage contract or when an international commercial contract explicitly provided that disputes would be governed by Saudi law. This is to be expected  where people move across the globe and between cultures, and where we engage in international trade. In each of these circumstances, the manner and the degree to which Shariah applies is governed by principles of American law.

What should a concerned citizen of the world know about Shariah today?

There is no threat of creeping Shariah on American soil. But there is good reason for us, in an increasingly interdependent world, to be aware of what Shariah is today, and why it is becoming increasingly important to the stability and security of several countries. Many in Muslim-majority countries are now deeply engaged in the project of demanding meaningful liberation from post-colonial autocratic regimes. As part of that project, they are figuring out how to construct indigenous, relevant, humane systems of governance for themselves. Many, if not most, Muslims engaged in this project recognize that it is wise to refer to and learn from Western countries, which have had much practice at setting up constitutional democracies and administering legal systems that can handle the complexities of the modern world. Some Muslims see the project of modern governance as secular, one that does not need to be rooted in the Qur’an or Islam at all. But many in Muslim-majority countries believe that they are best governed in reference to their moral aims and virtues, articulated in the Qur’an and Sunnah.

Many Muslims feel that it is only in reference to the Qur’an and Sunnah that they can discover some of what was lost to colonial history. Shariah is, for many Muslims, not a word synonymous with stonings and floggings, but with the seeds of liberation. Shariah is the possibility that they can reach back into the past, before the destruction of the colonial era, and begin to build a free and fair society on the fertile soil of their own nascent democratic tradition.

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