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Sharia and Diversity: Why Some Americans are Missing the Point
Date: 1/16/2013

Executive Summary


The lens of state power is not the only way to see law. Jewish halakha is one example. The scholar-created doctrines of Islamic law are another. Both are complete systems of law that do not need state power in order to govern individual behavior. This is why, when American Muslims say that they live according to sharia, this does not mean that they want government enactment of Islamic law. Their request that American law recognize their choice of religious rules in their lives is not a demand that American law legislate Islamic law for everyone. To think so is to fundamentally misunderstand what Islamic law is, the fact that it differentiates between God’s Law and the human interpretations thereof, and how Islamic law operates in practice. Much of the confusion in the United States regarding sharia would be untangled if Americans could appreciate these realities, however unfamiliar.

Sharia is, for Muslims, Divine Law—the Law of God. But it takes human scholarly study of scripture to articulate and elaborate that Divine Law in the form of legal rules. Those legal rules are called “fiqh,” crafted by religious legal scholars with a self-conscious awareness of their own human fallibility. As a result, there are many fiqh schools of law. According to Islamic legal theory, no fiqh rule can demand obedience because every such rule is the product of human (and thus fallible) interpretation. This pluralism allows the divine sharia “recipe” to be tangible enough for everyday Muslim use, yet flexible enough to accommodate personal choice.

Pluralism in fiqh (human articulation of Divine Law) illustrates the dynamic interactive engagement that sharia (Divine Law) has had with many different human environments. In other words, Muslim religious scholars have always treated sharia (Divine Law) as a recipe that is meant to be made (with all the natural diversity that results from that process), not one frozen in pristine condition decorating a kitchen bookshelf.

The enactment of so-called “sharia laws” in Muslim-majority countries is a modern mutation. Pre-modern Muslim governments formally recognized fiqh, but not by legislating it as the uniform law of the land. Instead, there was a separation of legal authority between the realms of fiqh (human articulation of Divine Law) and ruler-made laws for public order (siyasa). This separation enabled pre-modern Muslim legal systems to preserve the pluralism of fiqh and the principle of individual personal choice between fiqh schools, while still enabling Muslim rulers to make laws in order to serve the public good (siyasa). In stark contrast to this history, most Muslim-majority countries today have a very different constitutional framework, inherited or borrowed from the European nation-state model in which all law is controlled by the government. Modern Muslim legal systems no longer formally separate the realms of fiqh (human articulation of Divine Law) and state-made law (siyasa). Instead, the only formally recognized law in most of these countries is the law made by the government. Thus, the phenomenon of “sharia legislation” exists not because sharia (Divine Law) demands it, but rather, because of a complicated series of political events in these countries.

From the perspective of Islamic legal theory and history, there are two major problems with the idea that a Muslim government must enact “sharia legislation.” First, enacting a collection of (often politically) selected rules of fiqh (human articulation of Divine Law) as the uniform law of the land undermines the legal pluralism that religious communities (Muslim and non-Muslim) used to enjoy in pre-modern Muslim legal systems. That is, before the legal monism of the nation-state, Muslim governments often accommodated a “to each his own” approach to religious law that included not just the many Muslim fiqh legal schools, but also the religious law of Christians, Jews, and others. Second, the idea of government codification of sharia (Divine Law) contradicts the core epistemology of Islamic jurisprudence: that no human can claim to know God’s Law with certainty. Thus, when Muslim governments enact “sharia legislation” today, they not only reject the humility exhibited by centuries of fiqh scholars, but also the historical practice of centuries of Muslim rulers finding ways to enforce sharia while still respecting fiqh pluralism.

Here in the United States, there is no threat to American law presented by American Muslims seeking to live by sharia. There is also nothing particularly novel about some Americans wanting to follow religious laws that differ from the law of the land. American Muslims are merely the latest of many religious groups in the United States whose religious practices have presented continuing opportunities for American law to define the contours of what religious freedom means in our constitutional system that protects the free exercise of religion. American courts have never automatically dismissed individual requests for legal accommodation of religious law. On the other hand, religious freedom in the United States, like all constitutionally protected rights, is not absolute. It is weighed against other constitutional values and social policies. The main tools used by American courts in these cases are comity, public policy, and unconscionability. As a result, as with the religious practices of all American religious groups, American Muslims’ fiqh-based legal arguments are sometimes honored by American courts, and are sometimes rejected. Simply put, the American legal system honors the desire of many American Muslims to organize their legal lives according to their understanding of sharia (Divine Law), within the limits of American public policy. To see this as a threat is to mistake religious freedom for religious invasion.

It is important to realize that one of the themes of the anti-sharia campaign in the United States is that “creeping sharia” proves the dangerousness of multiculturalism. More specifically, the argument is that multiculturalism is flawed because it causes us to compromise our American values in order to accommodate Muslim desires to follow (allegedly oppressive and offensive) sharia. In this way, the anti-sharia controversy is part of a larger conservative-liberal political debate over the role of multiculturalism in America. Appreciating this context is important to engaging the topic of sharia in America.

In doing so, it is important for Americans (both Muslim and non-Muslim) to stop talking about sharia in a way that supports the rhetoric of those who manipulate the concept of sharia for political gain. Both within and outside of the United States, it is common to see the term “sharia” used interchangeably for not just the Islamic ideal of Divine Law, but also to refer to the fallible rules of fiqh (human articulation of Divine Law). Confusing sharia with fiqh is dangerous and misleading because it blurs the line between the divine and human voice, hiding the self-consciously human process that created the fiqh rules and the pluralistic schools of fiqh doctrine.

Conflating fiqh (human articulation of Divine Law) with sharia (Divine Law) causes people to assume that each fallible fiqh rule represents uncontestable DIvine L aw for Muslims, and that Muslims believe that these fiqh rules must be legislated as the law of the land. In Muslim circles, this sets the stage for political actors to push through their preferred fiqh rule with little or no opposition because the Muslim public assumes that the rule is divinely-directed, rather than being just one of many equally legitimate fiqh choices. This is often the technique used to support “sharia legislation” in Muslim majority countries today. It is also similar to a strategy used by anti-sharia activists in the United States whereby a few objectionable fiqh rules are selected to argue that sharia itself is offensive. In both cases, linguistic sleight of hand is being used to manipulate an unknowing public.

As this report explains, one (or even more than one) fiqh rule (human articulation of Divine Law) does not define sharia (Divine Law). It suggests the following three guidelines to avoid the most common pitfalls and misunderstandings that occur in public discourses about sharia.
  1. Use the word “sharia” only to refer to the concept of perfect, divine Law of God in Islam; use the word “fiqh” when referring to the humanly-created doctrinal rules created by Muslim religious legal scholars as the result of their efforts to understand and articulate1 sharia;
  2. Remember that fiqh (human articulation of Divine Law) is pluralistic, made up of multiple variations of equally-legitimate schools of law and their respective doctrines, all of which are available to individual Muslims to choose from as they seek to live by sharia (Divine Law);
  3. Do not refer to the laws in Muslim-majority countries (even those claiming to be “Islamic states”) as “sharia.” They are merely a legislated selection of humanly-created fiqh rules; they cannot be said to be conclusively dictated by sharia itself.

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