This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. This article discusses Sharia law in the United States, including an outline of the law and its history. The article also discusses all aspects of Sharia Law in the United States as well as the anti-Sharia movement.
It has been published by Rachit Garg.
The term Sharia derives from the Quran, the Islamic sacred book, as well as the Sunnah and Hadith, Prophet Muhammad’s deeds as well as his preachings. This is taken from the legal system of Islam. “Where an answer cannot be obtained immediately from these, religious experts may provide decisions as guidance on a specific topic or question,” according to the Sharia. This literally means ‘clean, well-trodden way to water’ in Arabic. This serves as a rule of conduct for all Muslims, including prayers, fasting, and charitable works for the needy.
Sharia law is a religious law that establishes regulating principles for spiritual, mental and physical behaviour that Muslims must obey. This is considered God’s command for Muslims since it is important in Islam’s legal system. This law primarily assists Muslims in understanding how they should spend their entire lives in accordance with God’s commands. Sharia may have an effect on every element of a Muslim’s everyday life. Various states in the United States of America have prohibited Sharia law or prevent state courts from considering foreign international or religious law.
Sharia is a methodology through which Muslims look for divine intent in their sacred books, not simply a set of laws to follow. It includes everything from how a faithful Muslim should eat, to how animals and the environment should be treated, to business practices and marriage customs. It is the Islamic code of morality system that governs every element of a Muslim’s life. Sharia law is not in effect or no longer in force in the United States since it has not been legally enacted as a body of law.
Let’s take a wider look at Sharia law.
What is Sharia Law
Sharia is derived from an Arabic word that means ‘path to the water,’ representing the concept that Sharia is divine guidance drawn primarily from the Quran and Sunnah, which their Prophet Muhammad’s teachings and guidance for the goal of helping humanity in bringing close to God and living in kindness and justice with his creation. Muslims use the term Sharia to refer to the values, code of behaviour, and religious precepts or holy rules that help them find guidance in different parts of life. While Sharia is frequently translated as ‘Islamic law,’ a more precise phrase for ‘Islamic law’ in Arabic is ‘fiqh’, which refers to the nature of humanity to interpret and implement Sharia. Many people believed that Sharia was a substitute for the law of the country, and this is where the trouble begins with Sharia law. Sharia law must be limited to a specific way of life. Sharia law, in general, addresses both personal and community elements of life. Any faithful Muslim would regard himself or herself to be a Sharia follower.
Sources of Sharia Law
The Sharia law is derived from the following basic sources:
The Quran is Islam’s holy book that contains Allah’s messages, which are global and everlasting in nature, as delivered by the Prophet. The main source of Sharia, the Islamic book of the law, is the Quran. It is made up of the laws which govern the Muslim world and serves as the foundation for relationships between Muslims and non-Muslims, as well as between humans and other members of creation. Sharia law is based on the Quran, and it is essential that all of its specific provisions are strictly followed. The Sunnah and Hadith, which include the Prophet’s words and deeds, are the sources that support the Quran.
The Hadith or story of the Prophet’s Sunnah constitutes the Muslim community’s religious standards which is the saying of Prophet Mohammad. Hadith clarifies and eliminates the ambiguity in the Quran. Muslims can only understand how to fast, pray, and perform pilgrimage according to Quranic instructions with the aid of Hadith. It is regarded and recognised as the principal source of strict laws and moral standards following the Quran. It is a record of the prophet Mohammed’s customs and habits. Without the aid of Hadith, the Quran has no significance. Muhammad Ibn Ismail al-Bukhr was the source author of Hadith.
The Ijma includes the legal opinions of Islam’s educated scholars. Ijma, also known as the universal and permanent agreement of the Muslim community at large or a specific Muslim scholar, is an Arabic term used in Islamic law. In Arabic, the word Ijma means ‘consensus’, and it is occasionally supported by a Hadith the sayings and deeds of Muhammad from his traditions. Therefore, it belongs to traditional authority.
There are three different types of Ijma:
- Ijma of companions: The unanimous opinion of the Prophet’s companions was regarded as the most trustworthy, which means it cannot be overturned or amended.
- Ijma of jurists: The unanimous opinion of the jurists, who were not companions.
- Ijma of the people or masses: The majority opinion of Muslims was considered as the law.
The Qiyas is the method of reviewing complex doctrine problems to situations decided by the authority of the Holy Book and Sunnah. It is the Sharia part of Islamic law known as qiyas that is subject to change in accordance with the needs and demands of the times. This feature of Islamic law gives it a wide range of possibilities for development and improvement. The principle of analogy, which is analogical inference or deduction, is used in the interpretation of aspects of Islamic law that are not expressly covered in the Quran or the Sunna. These interpretations involve comparing and contrasting the teachings of the hadith with those of the Quran.
The Sunnah is the deeds of Prophet Mohammad. The body of the Islamic community’s ancient social and legal customs and practices is known as the Sunnah. Sunnah is another essential source of Sharia, or Islamic law, along with other sources like the Quran and Hadith. The term Sunnah refers to precedents established by tribal ancestors that were followed by everyone in the society and recognised as normal. It also refers to the path of the Prophet Muhammad, may Allah grant peace and blessings to all. Islamic law is derived from the Quran and Sunnah. Additionally, this provides more guidelines and rules.
Schools of Sharia Law
Sharia laws are divided into five schools of thought:
Hanbali [Founder: Ahmad Ibn Hanbal]
One of Islam’s four Sunni schools of religious law, the Hanbali School is best recognised for its part in the standardisation of early theological doctrine. Ahmad Ibn Hanbal was its founder. The authority of the Hadith and the precedents established by the earliest Muslim generations is emphasised by this school.
Maliki [Founder: Malik Ibn Anas]
The Maliki school was founded by Malik Ibn Anas and is one of the four Sunni law schools. In order to understand the implications in view of the Quran and Hadith law, this school concentrated on local community practices among Muslims. In order to guarantee favourable legal outcomes, this school also encouraged the use of analogical reasoning and exercised juristic discretion.
Shafi’i [Founder: Muhammad Ibn Idris Ash-Shafi’i]
Muhammad Ibn Idris Ash-Shafi’i was the person who founded the Shafi’i school. Additionally, this is one of the four Sunni schools of law. This is an affirmation of the legitimacy of both divine law-giving and legal speculation on the part of humans. The consensus of scholars or the Ijma community was acknowledged but not emphasised.
Hanafi [Founder: Abu Hanifa an-nu’man]
One of the four main schools of Sunni Islamic legal theory and a source of positive law is the Hanafi School. This has to do with an established school of Sunni jurisprudence, particularly in southern and central Asia. Abu Hanifa an-nu’man was the person who founded the Hanafi School.
The four mentioned above are Sunni Muslims. The final one is Shia Islam, which is a version of Sharia law known as Ja’fari.
Five goals of Sharia Law
The Sharia’s five major goals are:
- Protection of sound religious practice life: Sharia law governs Muslim’s personal religious practices globally, but it should have an impact on modern legal systems.
- Life: Muslims follow the path of divine guidance under the Sharia law in order to live moral lives and get closer to God. It establishes principles for spiritual, mental and physical behaviour that Muslims must follow.
- Sanity: In Sharia law, a sane person is an individual who has enough mental ability to distinguish between good and evil, profit and loss. A person is released from their religious obligations when their capacity for thought and discernment is impaired. This is also a goal for Sharia law to attain.
- Family: According to Sharia law, family life is a vital part of the human community, providing a safe, healthy, and caring environment for parents and their developing children.
- Personal and communal wealth: Sharia law seeks to achieve this goal in areas such as marriage, divorce, inheritance, and family relations under personal laws. Sharia law also aims to satisfy the goal that all property belongs to God and is only temporarily enjoyed by humans. Property inheritance is essentially communal wealth, and the law states that wealth belongs to no one in the source of the Quran. People have the right to own and protect their property.
According to all Islamic schools of law, one of the five basic maxims of Sharia is the acknowledgement of sound local customs across the world.
What are the laws under Sharia
The norms of religious law are covered under Sharia law. These norms form the framework for Muslim citizens’ daily conduct. The Sharia laws are the religious laws of Islam, which are believed to represent God’s instructions to Muslims. When they are put into effect, they form a system of obligations that all Muslims are supposed to perform as a result of their religious conviction. The following are the various laws that cover Sharia law:
- Penal law:
The criminal receives the same treatment as the victim for all crimes against another person under Sharia law, including murder and assault, which are punished by retribution. This is also covered under penal law.
- Family law:
Sharia law, which forms the foundation of customary Islamic law governing family interactions, is also covered under family law. An adult woman may enter into her own marriage contract under Hanafi and Shi’i law, but if the lady marries someone who is lower socially than her, the guardian may have the marriage annulled.
- Succession law:
An individual’s ability to make a legacy is essentially constrained to one-third of the value of their inheritance when it comes to Sharia law under the law of succession.
Procedure and evidence
Law was governed by a single qadi who presided over a court and served as both the fact-finder and the law’s judge. Still, he occasionally sought the counsel of a jurisconsult, a qualified lawyer. The qadi’s first responsibility was to determine who had the burden of proof. In both criminal and civil proceedings, the level of proof needed, whether on an initial, intermediate, or final issue, was strict and essentially the same. Naturally, within the course of a single lawsuit, the burden of evidence may alternate between the parties. The plaintiff or prosecution was needed to provide two witnesses to testify verbally to their direct knowledge of the truth of his claim in the absence of a confession or an admission by the defendant. Moreover, two mature Muslims with a reputation for morality and character were often required to provide oral evidence. However, the testimony of women was accepted, and in the majority of property claims, the plaintiff could meet the burden of evidence by calling only one witness and swearing solemnly to the validity of his claim. Any witness evidence might be used to assist Qadi in making the right choice.
Sharia law in the USA
The U.S. Constitution is the foundation of American democracy. Religious freedom, privacy, and private property are all protected under the Constitution. People can pursue their conscience in terms of culture, conduct, and lifestyle as long as they respect others’ rights and their activities are in accordance with the basic good, according to the Constitution. Muslims must follow Sharia in the same manner that members of other religions adhere to their holy laws and traditions in the United States.
The religious provisions of the First Amendment to the United States Constitution allow for total freedom of belief and religious practice as long as followers respect the rights of other religions. The American way, as embodied in the first amendment’s religion clauses, promotes religious freedom and religious practice. It permits religious and secular organisations to practice whichever way they like as long as it is free and they respect others’ rights. There have always been various religious organisations in America that follow their own holy rules and lifestyles, such as Catholics, Jews, Baptists, Amish, Buddhists, Quakers, Religious communes, and so on.
In a similar way to Catholics who follow the teachings of the church or Jews who follow Halakhah, American Muslims follow Sharia on a free, separate basis. Daily prayers, fasting throughout the month of Ramadan, marriage contracts, and laws for charity and investing are all important aspects of Sharia. Muslims must abide by these customs without infringing on the rights of others. Because Muslims make up 1 to 2% of the American population, there is a risk that Sharia law will be used instead of US law in American courts. However, there is no proof that this is happening or even being considered. A group of leading security policy researchers produced elaborate research in 2010 concerned with the greatest authoritarian threat of the time, which is the legal political-military ideology known under Islam as Shariah. Sharia requires Muslims to follow the laws of the land in which they reside.
How does Sharia Law apply in America
The applicability of Sharia law in the USA has been made from a case where a Moroccan man and his 17-year-old wife immigrated to America. The wife obtained a restraining order against her husband, reporting that he was raping her. The husband did not deny that their sexual interactions were consenting, but he stated that under his religion, the woman was expected to submit and do everything he demanded from her. The New Jersey judge determined that, based on his knowledge of Islam, he had no intention to commit a crime and was thus innocent. The restraining order was refused. The US Court of Appeals noted that the Judge in the New Jersey case committed a legal error, which was overturned by a higher court that granted a restraining order.
His explanation was really helpful on this controversial and sensitive subject. The American judicial system has the following lists of permitted and prohibited conduct:
Application of inheritance based on Sharia law:
The application of inheritance based on religious motivation is permitted. However, asking the court to split inheritance based on Sharia law is not allowed. Contracts and property dispositions are free under US law. One person shall split one’s property in a will according to preference or request that it be divided according to Sharia law by a religious scholar. However, the court does not accept it has the authority to interpret religious laws and would decline a request to do so.
Application of foreign laws:
To determine a marriage or injuries caused overseas, it is permissible to apply foreign law. However, it is not permissible in other situations when doing so would violate US law or would subject a witness to unfair trial procedures. If two foreigners were legally wedded in accordance with the law of the nation from which they immigrated, US law would recognise that marriage. The determination of marriage in a domestic dispute by US courts must take into account international countries where marriage is governed by Shariah. However, polygamy’s acceptability abroad has no legal standing in US courts. Tort laws are governed by the country in which the harm occurred if an American gets hurt abroad and sues a firm that has a place in the US.
The religious exemptions from employment:
Religious exemptions from employment regulations are permissible, but only if they don’t put an undue burden on the business or go against the government’s interests. According to case-by-case analysis, US law enables reasonable adjustments for religious beliefs. Accordingly, depending on the nature of the employment is in issue, wearing a hijab at work or taking time out of the workday to pray may or may not be permitted. It is crucial to note that a famous decision that permits Muslim taxi drivers to refuse a customer carrying alcohol was based on American precedent rather than on an understanding of what is permissible under Islamic Sharia law.
It is permissible to provide accommodation to students or clients that incur only modest costs for the institution. It is not permitted to assess these petitions based on the religious group making the request. As long as doing so does not harm the public interest as a whole, US law permits public and commercial entities to better serve their residents and customers by appealing to their religious beliefs. For example, banks are providing Sharia-compliant loans and high-density Muslim institutions give all kids a full day off on holidays rather than just excluding them. Examples of this nature are applicable to all religious petitioners equally, and they should not be evaluated according to religious benefits.
To legislate Islamic morality:
In highly populated Muslim communities, attempts to legislate Islamic morals are permitted unless they violate the equal protection clause or the free speech code. Citizens may lobby the government to pass morally consistent policies under US law. Therefore, Muslims have the same freedom as everyone else to adopt municipal laws that, for example, forbid the consumption of alcohol.
Prevention of Sharia Law:
There are ten states that forbid the application of foreign law in their state courts, which is another way they have attempted to ban Sharia and no one seems to discriminate against Muslims. Alabama, Arkansas, Arizona, Louisiana, Kansas, Mississippi, North Carolina, Oklahoma, South Dakota, and Tennessee are among these states.
Impact of Sharia Law on the U.S. Constitution
American laws are based on a set of values and principles that are outlined in the U.S. Constitution. The American legal system must be the foundation of the Constitution. Sharia, in a similar manner, reflects the principles that must support Islamic law. On the question of whether the law of their country should be influenced by the Quran, Muslims participated in certain protests and rallies. However, there have been attempts by Muslims to create legislation defending a Muslim’s right to follow traditional Islamic law regarding marital disputes, divorce, and other family-related matters. More significantly, when it comes to trade and treaties, US courts consider international law, including foreign laws like Islamic law.
Muslims in America frequently support liberal political causes while simultaneously adhering to conservative views and beliefs. However, many American Muslims also support more conservative ideals, such as:
- By supporting their school vouchers,
- Government funding for religious social service organisations,
- Restrictions on abortion,
- The death penalty,
- Tax reductions,
- Mandates that Americans speak English, and
- Even stricter measures to combat terrorism.
Sharia is included in the majority of Muslim-dominated governments’ constitutions; nevertheless, family law is the only area where its principles are still generally upheld. If the US passed a constitutional amendment prohibiting sharia, it would be the same as prohibiting Americans. Muslims should oppose the implementation of justice and human rights. The majority of American Muslims accept the U.S. Constitution and do not support Sharia or Islamic law taking its place. All American citizens are granted these liberties and privileges by the nature of the United States Constitution.
Does Sharia Law supersede the U.S. Constitution?
There were US citizens who favoured Sharia law over the Constitution because they find it to be more respectable and dignified and because it is the law of God. However, the U.S. Constitution was drafted by humans, not by the people who would eventually live under it. Since the US has a Constitution that guarantees freedom of expression and of religion, some people oppose substituting it with Sharia law. Additionally, they make the argument that people of all religions, including Christians, Jews, and others, are free to practice their religion in their own way anywhere in the nation.
Many permissible interpretations of Islamic law, as well as ones that could mislead one, according to Muslim scholars. Some interpretations of the Islamic law that are much more severe and intolerant than others have only recently emerged. According to more extreme interpretations, there is only one collection of Sharia laws, and only those who abide by them will be saved by God. This is the path of discrimination, opposition to democracy and the advancement of Muslims over all other religions. The interpretation of Islamic law in the United States does not contradict American law even if it does not give instructions on crime and punishment.
Can American courts substitute religious law under civil law
According to the First Amendment’s Establishment and Free Excercise Clauses of the United States Constitution, everyone in the United States has the right to practice his or her own religion or no religion at all. The government cannot punish an individual or a group of people because of their religious beliefs. When issues over the laws of different religious traditions have occasionally found their way into civil courts in the United States, the Supreme Court has consistently decided that judges and other government officials may not interpret religious doctrine or rule on theological concerns. The United States Constitution says that Congress shall make no law respecting an establishment of religion or prohibiting its free practice. The prohibition applies equally to all religious groups.
What are the fears of Sharia Law in America that will grow among conservatives
Strict Islamic law is known as Sharia. It is intended to direct pious Muslims in their interpersonal and professional interactions. The Taliban and others have used it to defend restrictions on women’s rights and severe penalties, such as amputation and stoning. The issue surrounding the Islamic Cultural Center, just two blocks from the scene of the September 11 attacks, has been directly linked to the protests against Sharia law. The legal system in the United States is comparable to that of Great Britain, where courts are willing to uphold agreements reached in accordance with Jewish, Christian, or Islamic law and reached by religious tribunals, within reasonable bounds. However, there are 2 million Muslims living in the United States, a nation with a population of over 310 million people.
Background of the anti-Sharia movement
In June 2018, anti-Sharia rallies organised by ACT for America were conducted around the United States, attracting white nationalists, armed right-wing militias, and even neo-Nazis. The American Laws for American Courts model legislation, which can be found on the American Public Policy Alliance’s (APPA) website, is used in the bulk of anti-Sharia laws presented across the US. David Yerushalmi, a lawyer who makes statements regarding race, immigration, and Islamic law, was the leading force behind the anti-Sharia movement. He has started to have considerable influence in the American public discourse on Shariah.
The anti-Sharia movement is a part of a bigger, organised network-sponsored islamophobic campaign. Various initiatives taken to pass anti-Muslim laws at the state level have been unsuccessful, making Muslims and their faith targets as well. According to a report by the Center for American Progress, Yerushalmi wrote the sample anti-Sharia law that would make adhering to the Islamic law a crime that is punished by 20 years in prison. To persecute Muslims and create fear about the false threat of Sharia law, anti-Sharia law was employed in state legislatures across the country.
Anti-Sharia laws are now up for a legal challenge in accordance with the United States Constitution, both for potential interference with the important function of the courts and for the possibility of First Amendment rights to freedom of religion violations. Here, to extent that anti-Sharia legislation seeks to ban the application of Sharia for any reason at all in interpreting legal relations, it might be seen as an effort to obstruct the practice of Islam.
However, some people have developed a strong objection to Sharia law due to their fear of its impact on Islam. It is ridiculous to believe that banning Sharia law is the sole and most effective way to stop Americans from stoning adulterous women on public streets. There are certain negative impacts of Sharia law on the American legal system. Marriages, divorces, custody disputes, inheritance laws, and many other issues regularly come before the courts in this country at the crossroads of international affairs to have the provisions of laws and contractual agreements created under the laws of other countries interpreted. The courts are unable to carry out their duties properly as a result of the adoption of anti-Sharia laws.
Statistics of the anti-Sharia movement
In the United States, the anti-Sharia bill was introduced and enacted in many states. Since 2010, 201 anti-Sharia law bills have been introduced in 43 states. In 2017, 14 states introduced an anti-Sharia law bill, with Texas and Arkansas enacting it.
|Year||No. of states introduced the Bill||No. of states enacted the Bill|
Muslims in the USA are now required to uphold their religious morals in accordance with Sharia law, just as other religions are free to do the same. An individual cannot be forced to accept or implement any Sharia law as a legislative requirement. Just as other religions follow their own moral and holy laws, Muslims can live their private lives in accordance with Sharia. But in 2017, Muslims in America felt like their religious community was being discriminated against. However, the majority of Muslims are able to exercise their religion freely because of a guarantee given by the US Constitution. The First Amendment’s religion clause, which upholds the freedom of religion and religious practice, is a testament to the American way. Sharia law is based on a voluntary, private basis.
What does Sharia Law actually entail?
Muslims should follow Sharia as their preferred form of divine instruction in order to live moral lives. Islamic law today is based on human interpretations of Sharia or fiqh.
Are all religious individuals and groups protected by the First Amendment to the U.S. Constitution?
Yes, all Americans of all religions are guaranteed religious freedom or freedom of conscience by the first amendment’s religion clauses. The first amendment’s definition of the civic foundation for religious freedom allows people of different faiths to live together as equal citizens of one nation. As a result, the United States is currently the most religiously diverse society in the world.
How do Muslims practice Sharia in America?
Muslims must respect Sharia in the same way that others must adhere to the sacred rules and traditions of their respective religions.
Can American courts ever substitute religious law for civil law?
No, the First Amendment’s Establishment And Free Exercise Clauses prohibit American courts or other government organisations from substituting civil law with religious law. This restriction applies uniformly to all religions.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.