by Dr. David L. Johnston
There’s been an anti-Sharia movement afoot in a good twenty US state legislatures starting in the late 2000s. The idea is to ban any reference to Sharia in US courts, because allegedly Islamic law is the toxic spearhead of Islam’s totalitarian ideology that aims to take over the world. According to this view, Sharia represents the greatest threat to the United States since the Cold War.
A 2011 New York Times article traces the beginning of this movement to a lawyer named David Yerushalmi, a Hasidic Jew with roots in South Florida and Israel. In 2006 he settled in Brooklyn and founded The Society for National Existence, with the aim to combat Sharia, and aligned himself with Frank Gaffney, a hardline neoconservative policy analyst. The movement took off, acting as a magnet for similar organizations like Pamela Geller’s Act For America and activists like Brigitte Gabriel.
But when does Sharia (Shari’a or Shariah) ever come up in US courts? I quote again from the same New York Times article:
“In the United States, Shariah, like Jewish law, most commonly surfaces in court through divorce and custody proceedings or in commercial litigation. Often these cases involve contracts that failed to be resolved in a religious setting. Shariah can also figure in cases involving foreign laws, for example in tort claims against businesses in Muslim countries. It then falls to the American judge to examine the religious issues at hand before making a ruling based on federal or state law.”
I am currently helping to supervise a doctoral student at Fuller Theological Seminary who was originally trained in Islamic law in Egypt and who is also a practicing US lawyer. He is looking at similar cases that have been tried in California courts. There is nothing extraordinary about those cases. They are simply more complex, in that these couples were married overseas within different cultural settings and often with contracts involving a dowry that was paid to the bride by the groom’s family in case of divorce.
The point is that an American judge in wanting to be fair often looks into this background but in the end has to litigate within the framework of state and federal laws and in harmony with the US Constitution. How is this a sign that Sharia is going to take over the country?
Salam Marayati of the Muslim Public Affairs Council responded in this way: “The fact is that there is no Shariah takeover in America. It’s purely a political wedge to create fear and hysteria.” I agree. But sadly, proponents of anti-Sharia rhetoric have now become emboldened because they have the ear of the President (read this great article from last year, “5 Things You Need To Know About Sharia Law”).
In Oklahoma in 2011 an anti-Sharia law was passed; however, a federal judge struck it down because it unconstitutionally restricted religious freedom.
That is exactly the point. The word Sharia, which symbolizes the God-shaped form the world is to take as His people follow this path, also literally means “the path to the watering hole.” So Islamic law is also the path of salvation through the arid and forbidding desert of life that leads into the gardens of bliss in the hereafter. In what follows I describe Sharia, as seen by Muslims, as divine, flexible, and comprehensive.
What Is Sharia, according to Islam?
First, Sharia in the Islamic perspective is divine in origin, since only God is the legitimate ruler of the world. The two main sources for discerning the will of the divine Legislator are the sacred texts – the Quran, first and foremost, and then the authoritative collections of all the reports (or hadiths) about what the Prophet Muhammad said and did. After all, he remains THE godly example all Muslims strive to follow; so this second source of Islamic law is called the Sunna (the “path” or “model” of the Prophet). At the same time, Muslim scholars have always recognized that sacred texts – whether the Quran, which contains the very words of God, or the Sunna, which houses reports of varying levels of authenticity and reliability – have to be interpreted by human beings.
This is why “Sharia,” as the symbol of God’s will in this world and the next, is always distinct from “applied jurisprudence” in Islamic law (fiqh, from a word meaning “understanding”). Fiqh comprises the traditions of understanding and practical application of the texts that are followed in various schools of Islamic law. So one should never confuse Sharia with fiqh (though some Muslims do at times).
Second, since Sharia is divine and fiqh is manmade, Sharia is flexible. One maxim says that the law should not create too much of a burden, so rules can be waived if necessary. Stealing or eating pork is not sin if you are dying of hunger. Pregnant women, sick persons, or travelers can put off their Ramadan fast until a better time. Using sand for the prescribed ablutions for prayer instead of water when none is available is fine.
But notice too that different schools of law have developed different rules over the years. For example, the Quran forbids (as in the Torah) the eating of “carrion, blood, pork, meat offered to idols, or an animal that was strangled or killed by a violent blow” (Q. 5:4). In the grey areas, however, some schools say all aquatic animals can be eaten. But some say that only those aquatic animals in the shape of a fish can be eaten. Others say tortoises are forbidden, and all agree that frogs cannot be eaten, because of a reliable hadith in which the Prophet forbade the killing of frogs. On the other hand, all domestic animals can be eaten, but there is disagreement regarding riding horses and work horses. As you can see, flexibility is the watchword, and thus one often-quoted hadith has Muhammad saying, “Diversity of legal opinions is a mercy.”
Finally, Islamic law is comprehensive. It covers two broad categories: the religious rituals (‘ibadat, or “worship items”) and rules concerning human relationships (mu’amalat). The first category contains the “five pillars” of Islam: the shahada, or “testimony”; ritual prayers (salah); almsgiving (zakat); the month of fasting (Ramadan); and the pilgrimage to Mecca (Hajj), and a few other items as well. But the second category is the largest. “Human transactions” includes commercial and property law, judicial procedure, and criminal law (in case you’re wondering about chopping off the hands of thieves and stoning adulterers, see my blog on extreme penalties and why they mostly don’t apply today).
So the takeaway here is that you do NOT need to be fearful about Sharia taking over America.
The US Constitution is upheld in courts. No Muslim organization has ever called for it to become subordinate to Sharia, and that’s not even something American Muslims want.
Sharia as a religious symbol remains at the heart of Muslim spirituality. And for that reason, in the best tradition of our American democracy, we should shun witch hunts of all kinds and welcome to the table our fellow Americans who happen to be Muslims, as we did – reluctantly at first – Catholics and Jews in the not-so-distant past.
Dr. David L. Johnston has spent 16 years in the Arab world and has a Ph.D. in Islamic Studies from Fuller Seminary. He then continued his studies in contemporary Islam at Yale University. His research and writing focuses on the intersection of law and theology in modern Islamic scholarship and on Muslim-Christian dialogue. He is the author of Earth, Empire and Sacred Text: Muslims and Christians as Truestees of Creation and Evolving Muslim Theologies of Justice. Read more from David Johnston at www.humantrustees.org.