Shariah Law and American State Courts: An Assessment of State Appellate Court Cases

Why Are Conflicts Between Shariah Law and U.S. Federal, State or Local Law a Problem?

Shariah doctrine includes personal, pietistic religious observances that are not in conflict with U.S. laws.  But institutionalized, authoritative Shariah is comprehensive and by definition without limit in its ambitions and scope, and it also includes legally mandated, recommended, permitted, discouraged and prohibited practices that are strongly biased and discriminatory against women, homosexuals and non-Muslims. Shariah law provides a legal framework for violence up to and including legalized murder against apostates (people who have left Islam), homosexuals, blasphemers and especially women accused of various crimes.  Just this year in 2011, in Pakistan’s Shariah legal system, both apostates and blasphemers have been imprisoned and faced execution. Shariah criminal punishments are extreme, including amputations and lashings for numerous crimes.

Shariah is a highly institutionalized legal tradition in Muslim-majority countries, and as detailed below, also in the U.S.  particularly through institutions like the Assembly of Muslim Jurists of America (AMJA).  Although there are several schools of Shariah legal traditions, consensus among those schools on all major points of law – institutionalized, documented for centuries, and authoritative – is recognized throughout Shariah courts.  A brief excerpt from the national security study of Shariah, “Shariah: the Threat to America,” shows the extent of Shariah’s scope and consensus among the various schools of Shariah:³

Shariah contains categories and subjects of Islamic law called the branches of fiqh (literally, understanding”). They include Islamic worship, family relations, inheritance, commerce, property law, civil (tort) law, criminal law, administration, taxation, constitution, international relations, war and ethics, and other categories.  Four Sunni and two Shiite schools (madhhab) of jurisprudence address these legal issues. The Islamic scholars of the Sunni schools – Hanafi, Hanbali, Maliki, and Shafi’i – as well as the Ja’fari and Ismaili Fatimid Shiite schools, completed codification of Islamic law by the tenth century.

From that time until the present, Islamic fiqh has remained reasonably fixed.  Despite a measure of variation on minor details, and a more flexible attitude about ijtihad by traditional Shiite scholars, all of the major schools of Shariah are in agreement on more than 70 percent of substantive matters. In 1959, al-Azhar University (today the seat of Sunni jurisprudence although it was founded by the Shiite Fatimids) issued a fatwa that recognized Shia Islam as legitimate. Despite its own adherence to fiqh of the Ja’fari Twelver school, the Iranian constitution of 1989 likewise made a point of explicitly recognizing the validity of the four Sunni madhhabs.  According to Shariah, all of Islam – its doctrines, practices, theology and adherents – are subordinate to that comprehensive code.

Prior Research

The English-language literature on Shariah law (also spelled in the literature as Sharia or Shariah or Sharyah), also known as “Islamic Law,” is extensive both in the breadth of topics, the sheer amount of publication in academic and law journals, and the venerable history of American interest in Islamic law’s conflicts with American and Western laws, values and policies.  As early as 1908, for example, one could read about the “Wakf as Family Settlement among the Mohammedans “ by Syed A. Majid, in the  Journal of the Society of Comparative Legislation; or in 1915, “The Adhesion of Non-Christian Countries to the Hague Conventions of Private International Law,” by Norman Bentwich in the same journal.

The topic is not new to academics or lawyers; but, with an increased presence of Shariah-adherent Muslims in the United States, and the rapid rise of political and militant Islam globally, the conflict between Shariah law and the Constitution requires a new level of debate among policymakers, media, the legal community, and most importantly, the American public.

To assist in that debate, and for further reading, we have provided an Appendix with citations to a small sample of articles on Shariah and conflict of laws issues dating back to the early 1900’s, identified using search terms “United States” and “Sharia OR Shariah.”  To make this a useful sample, we eliminated the hundreds of articles that focused primarily on Shariah in other countries, as well as most articles on Shariah finance (a minor publishing industry in itself).   For additional reading, we refer you to the extensive articles and books cited and analyzed in Yerushalmi’s  article on Shariah finance (Shariah’s Black Box, Utah Law Review 2008⁴ and in the recent widely distributed and quoted national security assessment of Shariah, Shariah: The Threat to America—Report of Team B II.⁵  The suggested articles in the Appendix are only a miniscule sample of the many hundreds of articles on Shariah law published annually; they include articles both critical of, and supportive of, Shariah’s introduction into Western legal systems and civil society.    We would urge the ordinary citizen interested in the topic to read in the field including some of these older articles:   using the search terms cited above, we found numerous articles on Shariah, from pre-World War I journals to the present,⁶ (showing here with the numbers of publications per year containing the search terms in parentheses to the right of the year):

* 2006 to May, 2011 (969)

o 2011 (14)

o 2010 (173)

o 2009 (235)

o 2008 (255)

o 2007 (275)

³ See www.shariathethreat.org for a downloadable pdf of the entire book, background information on all authors, and extensive links to key Shariah doctrinal resources used as references.

⁴Ibid

⁵ See www.shariathethreat.org for a downloadable pdf of the entire book, background information on all authors, and extensive links to key Shariah doctrinal resources used as references.

⁶ Search conducted at Heinonline.org May 2, 2011.  See www.heinonline.org .