Islam’s Response to Misconceptions about Sharia Law

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“Islam’s Response to Misconceptions about Sharia Law”

by Anser Ahmad, Esq.

Appears in the Fall 2017 issue.

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In the West, Sharia is being portrayed as a source of oppression, violence, and tyranny. This misconception of Sharia stems from actions that arise from an out-of-context reading of the Holy Qur’an and reliance on inauthentic traditions of the Holy Prophet (sa) of Islam. While some politicians claim that European Muslims “want to go by sharia law,” other political leaders in the United States, such as Congressmen Joe Heck (R-Nev.) and Louie Gohmert’s (R-Texas), claim that Muslims are trying to implement sharia law in the United States. (1)

More disconcerting than the political rhetoric, is the fact that nine states in America have already passed statutes forbidding the use of foreign law, and another thirteen states have such proposed bills pending. In 2010 and 2011 more than two dozen states “considered measures to restrict judges from consulting Sharia, or foreign and religious laws more generally”. (2, 3) As of 2013, all but 16 states have considered such a law.

The danger with such bills is the slippery slope effect, where initially the goal may be to forbid the implementation of foreign rules about marriage and family law issues but may eventually lead to prohibiting everyday religious practices. In an early draft of the Tennessee bill (which was subsequently rejected), it would have been a felony for Muslims to perform religious practices such as praying, performing ablution, giving to charity, or fasting because they would be considered as banned Sharia practices. (4) While this is unconstitutional because it violates the religious free exercise clause of the First Amendment and is a violation of equal protection laws, it is troubling that American voters and lawmakers are so fearful of Islamic practices to propose such bills.

Given the extensive misinformation circulating what does and does not constitute Sharia law, it is imperative that Muslims and non-Muslims alike gain a clearer understanding of this subject. Outlined below are several misconceptions (or “myths”) about the Sharia law, and the proper explanations from an Islamic perspective.

MYTH #1: Sharia is a set of laws practiced universally by all Muslims

Sharia means “a path to life-giving water,” and refers to a defined path upon which all God-fearing people are advised to tread. It is grounded in the recognition of God’s existence. Sharia presupposes that there is a God. God reveals His desire of how the man should shape his destiny, and God’s will is manifested in the form of certain laws or principles. These laws or principles constitute Sharia and are outlined in the Holy Qur’an.

The Holy Prophet Muhammad (sa) further elaborated and illustrated these rules and principles through his deeds also called Sunnah (the practice of the Holy Prophet) and his words, referred to as Ahadith (sayings of the Holy Prophet). As the Holy Qur’an, Sunnah, and Ahadith are considered primary sources of Sharia by Muslim scholars. But in order of importance, the Holy Qur’an outranks Sunnah and Ahadith.

In Islam, Sharia can be divided into five main branches: “ibada” (ritual worship), “mu‘amalat” (transactions and contracts), “adab” (behavior, morals, and manners), “i‘tiqadat” (beliefs), and “‘uqubat” (punishments). Islam prescribes certain laws or principles that govern all five main branches. At its core, Sharia is intended to develop and sustain a moral and just society.

The human interpretation of sharia is called “Fiqh,” or Islamic rules of right action. Fiqh means “understanding,” and refers to how the Islamic laws are to be interpreted. The fact that there are so many different schools of thought on Fiqh illustrates that scholars have varying understandings in the interpretation of Sharia.

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MYTH #2: All Muslims believe that Sharia should be the law of the country in which they reside

While often thought of as a legal system, Sharia is much broader and covers personal and collective spheres of daily life and has three components: belief, character, and actions. Only a small portion of the “action” component relates to law. In fact, only about 80 of the Qur’an’s 6,348 verses are about specific legal injunctions.

According to Intisar Rabb, a member of the law faculty at Boston College Law School where she teaches advanced constitutional law, criminal law, and comparative and Islamic law:

“There is a religious aspect and a state aspect to practices in all faiths. For example, just as Christians have weddings in a church, Muslims often have weddings in a mosque, or some other venue presided over by an Imam, but the marriage is also solemnized by the state.” (5)

In this instant, one could call Sharia law and State law overlapping. Similarly, in laws of inheritance and divorce, there are aspects of Sharia law overlapping with the state’s laws.

As for applicability, opinions differ about how Islamic law should be implemented. According to a 2013 Pew report:

“Muslims differ widely on such questions as for whether polygamy, divorce, and family planning are morally acceptable and whether daughters should be able to receive the same inheritance as sons.” (6)

According to the same survey, the percentage of Muslims who say they want sharia to be “the official law of the land” varies widely around the world, from fewer than one-in-ten in Azerbaijan (8%) to near unanimity in Afghanistan (99%). The survey also finds that even in many countries where there is strong backing for Sharia, most Muslims favor religious freedom for the people of other faiths. In Pakistan, for example, three-quarters of Muslims believe that non-Muslims are free to practice their religion, and 96% of those who share this assessment says it is “a good thing.” (6)

This follows the tradition of the Holy Prophet (sa) who was known to apply the Talmudic law in resolving disputes among the Jews living in Arabia. True Islamic teachings, as practiced by the Prophet of Islam, promote a secular government with equal rights and privileges for its citizens and a separation of mosque and state.

The Qur’an itself does not specify any specific form of government other than a beneficent one that is based on “Adl” (absolute justice):

“Verily, Allah enjoins justice, and the doing of good to others; and giving like kindred, and forbids indecency and manifest evil and transgression. He admonishes you that you may take heed.” (7)

There is no mention of religion in this verse. Pluralism and religious tolerance are Islamic values. The Qur’an stresses: “There is no coercion in religion.” (8)

MYTH #3: Sharia law is interpreted the same by all Muslims and is unique to Islam

Historically, Sharia was systematized between the 8th and 10th centuries, some 200 to 300 years after the Holy Prophet (sa) received his first revelation. Over the centuries, Islamic legal analyses and opinions were compiled in books that judges used in deciding cases.

In the modern period, there is even more diversity of opinion. Not only do scholars claim to have the authority to interpret Sharia but other popular individuals who provide Islamic legal opinions, are also laying claim to their interpretation of Sharia law.

In countries with classical Sharia systems, Sharia has official status or a high degree of influence on the legal system and covers family law, criminal law, and in some places, personal beliefs, including penalties for apostasy, blasphemy, and not praying. However, each of these areas is debatable with room for varying interpretation. For example, the punishment for apostasy may range from no action in one country to a strict form of punishment in another Muslim country.

Therefore, historically, Sharia in many ways, is similar to Anglo-Saxon and American common law, in that it developed organically over time through decisions made by judges, who usually render judgments on a case-by-case basis without the codified universal statutes found in civil law countries.

Because Sharia is based on religious principles, it is not unique to Islam. Every faith has its form of Sharia. In the United States, for example, the legal system permits some narrow civil matters to be settled through alternative dispute resolution. Among such alternative mechanisms is the Bet Din, or rabbinical law courts. American Jews routinely go before Bet Din to arbitrate real estate deals, divorces, and business disputes. In some circumstances, where a favorable outcome is not achieved, they then proceed to the American courts.

As there are no Islamic courts in the United States, judges sometimes have to consider Islamic law in their decisions. For example, a judge may have to recognize the validity of an Islamic marriage contract from a Muslim country to grant a divorce in America.

MYTH #4: Sharia is Against Women’s Rights

Many politicians claim that Islam, following Sharia law, “is inherently hostile to women” because of its marriage laws, among other reasons. Many Westerners see Muslim women’s head cover as a kind of oppression. Former French Prime Minister Manuel Valls endorsed his country’s effort to ban the hijab on university campuses, calling it a symbol of the “enslavement of women.” There is a verse in the Qur’an that holds that men are the “protectors” of women, and many contemporary Muslim scholars dispute the notion that this suggests that women must obey men or that women are inferior.

While it’s true that many majority-Muslim societies have laws that treat women unfairly, many of these laws, like Saudi Arabia’s ban on female drivers, have no basis in Fiqh (practical interpretation). In instances where there is a Fiqh origin for modern legislation, that legislation often cherry-picks certain rules, including more woman-affirming interpretations. And on a range of issues, Islam can fairly be described as feminist. Fiqh scholars, for instance, have concluded that women have the right to fight in combat (women fought alongside the prophet Muhammad (sa) himself.) Fiqh can also be interpreted as pro-choice, with certain scholars positing that although abortion is forbidden, first-trimester abortions are not punishable.

Islamic principles have held, from the advent of the Holy Prophet (sa), that a woman’s property, held exclusively in her name, cannot be appropriated by her husband, brother or father. (For centuries, this stood in stark contrast with the property rights of women in Europe.) Muslim women in America are sometimes shocked to find that, even though they were careful to list their assets as separate, those can be considered joint assets after marriage.

To be accurate, there are patriarchal rules being practiced in some modern Muslim-majority countries. For example, women in Iran cannot run for the post of the president or attend men’s soccer matches. But these rules are human interpretations (Fiqh), not Sharia. On the other hand, some Muslim countries, such as Pakistan, Indonesia, and Bangladesh have already elected a female Prime Minister, or head of state, well ahead of Western countries, such as the United States.

MYTH #5: Sharia Law Prescribes Harsh Punishments.

The media and politicians have further fueled fears among Westerners that Islam’s punishment under Sharia law is brutally savage. It does not help that the Islamic states do routinely kill innocents for all sorts of perceived transgressions, despite the Qur’an’s prohibition of wanton violence: It forbids attacks on civilians, property, houses of worship and even animals.

In the same way that the Ku Klux Klan’s tactics are a poor representation of Christian practice (despite its claims to be a Christian organization), the Islamic State is the worst place to look to understand what Sharia says about punishment and the treatment of innocents and prisoners. It’s true that Sharia permits harsh corporal punishment, including amputation of limbs, but Fiqh restricts its application.

Furthermore, while the punishment for certain violations is highlighted, those who propagandize Islamic punishments fail to bring up the near-impossible level of evidence required to carry out the sentence. For someone to be convicted of adultery, for example, there must be four witnesses to the act, which is rare. The Qur’an also prescribes amputating the hands of thieves, but what often goes unmentioned is that the punishment is not applied if the thief has repented.

Other Sharia scholars say such a punishment system can only be instituted in a society of high moral standards and where everyone’s needs are met (thereby obviating the urge to steal or commit other crimes). In such a society, the thinking goes, corporal punishments would rarely be needed. There is, however, growing evidence that small numbers of radical militant groups have used corporal punishments in countries such as Afghanistan, Somalia, and Syria, and governments in Iran, Saudi Arabia, the Aceh state in Indonesia and elsewhere.

MYTH #6: Sharia is About Conquest

Some politicians such as former House Speaker Newt Gingrich, have made comments such as:

“Stealth jihadis use political, cultural, societal, religious, intellectual tools; violent jihadis use violence … They’re both seeking to impose the same end state, which is to replace Western civilization with a radical imposition of sharia.” (9)

His remarks reflect a widely held view that Muslims are bound to wage war against non-Muslims, and their end goal is to conquer and take over Western society.

But Muslims hold no such belief. The concept of a violent Jihad, has always been one of the defensive wars, but the time for this type of Jihad, in the majority of Muslims’ minds, no longer exists. The Qur’an repeatedly commands Muslims to keep promises and uphold covenants. These include treaties among nations and extend to individuals living under a non-Muslim rule.

Muslims have lived as minorities in non-Muslim societies since the beginning of Islam, from Christian Abyssinia to imperial China. And Fiqh scholars have always insisted that Muslims in non-Muslim lands must obey the laws of those lands and do no harm within their host countries. If the local law conflicts with a Muslim’s Sharia obligations, scholars agree that the Muslim individual or family should either emigrate to another country or abide by the laws of the land. But none advocate violence or a takeover of those governments. In fact, Muslims have been part of America since before it was founded, as many were brought to this country as Muslim slaves. Therefore, American Muslims have for a long time practiced their religion freely without becoming in any way a threat to American democracy.

In Conclusion:

It appears that the present trends in media and politics are based on misinformation about Sharia law. In actuality, there is underlying political motivation to spurn hate and fear of Muslims and Islam. Furthermore, certain Islamic countries over the past ten years, have unjustly imposed Sharia as an instrument of power and control which has further lead to Western nations scrutinizing and magnifying these acts and equating Sharia with terrorism and national security.

David_Cameron_official.jpgIn actuality, Sharia represents ideals of justice, fairness, and living a healthy life ideals that Americans hold dear. And so, it is worth learning more about Sharia. Therefore, this is an argument for the United States and Western nations, in general, to accept and even encourage Sharia for Muslim-majority countries. Some world leaders, of non-Muslim countries, have also become aware of the benefits of integrating and accepting other peoples’ way of life. British Prime Minister David Cameron stated:

“Family breakdown, drugs, crime, and incivility are part of the normal experience of modern Britain. Many British Asians [British Asians is a term that includes Muslims, Hindus, Sikhs, and East Asians] see a society that hardly inspires them to integrate. Indeed, they see aspects of modern Britain which are a threat to the values they hold dear values which we should all hold dear. Asian families and their communities are incredibly strong and cohesive and have a sense of civic responsibility which puts the rest of us to shame. Not for the first time, I found myself thinking that it is mainstream Britain which needs to integrate more with the British Asian way of life, not the other way around.” (10)

There should thus be no opposition from any side of the political spectrum in the United States or other Western countries to the idea of another civilization applying its customary laws and values to itself and at the same time abiding and respecting the laws of the land in which they live.

References:

  1. https://thinkprogress.org/interfaith-group-to-gop-congressman-stop-demonizing-islam-fba467e0bad2/. Retrieved: 15 August 2017
  2. Farmer, Liz (4 November 2014). “Alabama Joins Wave of States Banning Foreign Laws “www.governing.com.” Retrieved: 27 August 2015.
  3. Elliott, Andrea (July 30, 2011). “The Man Behind the Anti-Sharia Movement.” The New York Times. Retrieved: August 9, 2017.
  4. Smietana, Bob (February 23, 2011) “Tennessee Bill Would Jail Sharia Users.” USA Today
  5. Steenland, Sally, (March 8, 2011) “Setting the Record Straight on Sharia.” https://www.americanprogress.org/issues/religion/news/2011/03/08/9263/setting-the-record-straight-on-sharia/. Retrieved: 15 August 2017
  6. http://www.pewforum.org/2013/04/30/the-worlds-Muslims-religion-politics-society-beliefs-about-sharia/. Retrieved: 15 August 2017
  7. The Holy Qur’an (16: 91)
  8. The Holy Qur’an (2: 257)
  9. Shane, Scott, In Islamic Law, Gingrich Sees a Mortal Threat to U.S. (December 21, 2011)
  10. Cameron, David, (May 13, 2007) “What I learnt from my stay with a Muslim family.”The Guardian

 

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