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 19th 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 Continue reading