The founding jurists and scholars of Sharia accepted diversity of interpretations and resisted imposing their own, possibly erroneous, views while seeking to enhance consensus (ijma) among themselves and their communities. That approach provided valuable flexibility in local legal practices under highly decentralized imperial states. For present legal systems, however, the obvious question is how and by whom can reasonable and legitimate differences of opinion among schools and scholars be settled in order to determine what is the law to be applied by state courts and other authorities? The basic dilemma here can be explained as follows: A minimum degree of certainty in the determination and enforcement of positive law for any society is of paramount importance. The nature and role of positive law in the modern state also requires the interaction of a multitude of actors and complex factors which cannot possibly be contained by an Islamic religious rationale. Conversely, a religious rationale is necessary for the binding force of Sharia norms for Muslims. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of that state. The imperatives of certainty and uniformity in national legislation are now stronger than they used to be. This is not only due to the growing complexity of the role of the state at the domestic or national level, but also because of the global interdependence of all peoples and their states.
The second half of the twentieth century witnessed strong and mounting demands for the application of Sharia as state law, and sometimes calls for the establishment of an “Islamic state”. Although Pakistan was called an “Islamic Republic” earlier, it was the Iranian revolution of 1971 that gave this trend its most spectacular success. Sudan in the 1990s and most Northern Nigerian states (not the Federation of Nigeria as a whole) in the first few years of the twenty first century also appeared to confirm the trend, though there has been significant retreat in both cases since 2005. The rise of what is now commonly called “political Islam” or “Islamism” is apparently seen as “natural and logical” by most Muslims and non-Muslims alike, and regularly covered by the international media. Moreover, it seems that the basis or premise of the claim itself is largely taken for granted without question. There is extensive scholarly research, public debate, and media attention to such issues as the underlying political, economic, cultural and other causes of the phenomenon, and its likely prospects and consequences for various domestic and international issues. Some participants in these debates may be skeptical about the realistic prospects of an Islamic state or concerned about the practical consequences of the enforcement of Sharia by the state. But very few seem to be questioning the concept of an Islamic state itself or the coherence of the idea of the enforcement of Sharia by the state.
One of the earliest and best examples of serious scholarly investigation of the premise of this concept and idea was the book al-Islam wa Usul al-Hukm (Islam and the Foundations of Governance), published in 1924. The author, Ali Abd al-Raziq, a graduate of Al-Azhar Islamic University in Cairo, Egypt, was severely chastised, stripped of his academic qualifications and harassed out of public life in Egypt until he died in 1966. Others who attempted a similar approach, like Khalid Muhammad Khalid in his early writings, were also severely chastised and harassed. So, part of the reason for the lack of serious investigation of the issues may well be fear of violent retaliation, whether by state official or, even more ominously, by vigilante groups. Whatever the reasons, there is little examination of the premise of an Islamic state, so the idea of enforcement of Sharia by the state came to be taken for granted.
This “taking for granted” is the issue we seek to clarify in this chapter in order to consider a possible framework for mediating the underlying question whether the concept of an Islamic state itself is coherent, and whether the religious obligation of Muslims to observe Sharia can be discharged by the enforcement of Sharia as state law. To this end, we begin with excerpts to clarify the problem and propose a framework for its mediation, with particular reference to Islamic Family Law (IFL) because it remains the most widely applied aspect of Sharia. Reference should also be made to our discussion of three Muslim-majority countries (Indonesia, Pakistan and Iran) in chapters 24-26, above. In the last part of this chapter, we apply the proposed framework to Muslim-majority situations and offer some examples of how issues of Sharia and freedom of religion for Muslims might arise before American courts.
The Enforcement of Sharia as State Law
Scholarly and popular literature and debate on Islam and the state, politics, “Islamic state”, and related subjects is vast and difficult to review or summarize here. This is not possible even for the limited specific subject of whether Sharia should be enforced by the state, to what extent and how. Various aspects of these debates have already been covered in relation to particular themes, especially regarding family law as the most widely applied aspect of Sharia in modern legal systems. But a more fundamental issue that should be noted here is whether calls for an Islamic state to enforce Sharia as state law are compatible with modern principles of constitutionalism. Consider the following view on this question.
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Abdullahi Ahmed An-Na‘im, African Constitutionalism And The Role Of Islam (University of Pennsylvania Press, 2006), pp. 100–103.
The premise here is not that Islam is the sole or even primary determinant of the status of constitutionalism in Islamic countries (that is, those where Muslims constitute the majority of the population). Indeed, it is integral to my argument that the present status and future prospects of constitutionalism in those countries should be assessed in terms of the historical experience and present context of each country, like any other country in the world. The role of Islam in that experience and context would necessarily vary from one country to another, but always as only one among many factors and forces that may influence the course of developments in each setting. However, even where it is not so obvious or dominant at some point in time, the role of Islam in this field should not be underestimated because of its implications for the legitimacy and efficacy of the notion of constitutionalism itself in those societies. In other words, the role of Islam in this connection should be taken seriously, without unduly exaggerating or underestimating it.
This relationship is problematic since Islam is commonly taken to be synonymous with historical understandings of what is commonly known as Sharia. Whereas the term Sharia refers to the normative system of Islam in general, the specific content Muslims have given to this system is necessarily a product of the history of their own societies. This point is extremely important for our purposes here, namely, that the term Sharia always refers to human interpretation of the Quran and Sunna (traditions of the Prophet), and as such is neither divine nor immutable. The particular understanding of the content of Sharia prevalent among Muslims today contains some principles that are incompatible with fundamental principles of constitutionalism, as briefly explained earlier and further elaborated below. This does not mean that Sharia as such is incapable of being understood by Muslims in ways that are fully consistent with constitutionalism for their own society, but the contradictions must first be acknowledged before the reinterpretation can begin. In this first section, I will briefly explain this basic tension, and outline a theoretical approach to its mediation…
Constitutionalism, Universal and Specific
Essentially, constitutionalism is a particular response to a basic paradox in the political, economic, and social life of every human society. On the one hand, it is not practically possible for all citizens to participate equally in the conduct of the daily affairs of their country at large. It is also clear, on the other hand, that people tend to have different views and conflicting interests regarding matters of sharing political power, development, and allocation of economic resources, social policy, and service. The state is the agency charged with the mediation of these differences of opinion and conflicts of interests. But since this function is supposed to be performed by those who control the apparatus of the state, who are human beings with their own biases, opinions, and interests, the question is how to ensure that they will not exceed or abuse their powers. Constitutionalism signifies a system of government that seeks to enable those who have no direct control over the apparatus of the state to ensure that their views and interests are well served by those who are in control of the state. All aspects of constitutionalism, whether regarding the structures and organs of the state or their operation in the making and implementation of public policy, administration of justice, and so forth, follow from this basic reality of all human societies today. This relationship between the population at large and those who are in control of the apparatus of the state can be understood and evaluated in terms of how representative and accountable is the government of a country to all segments of its population. In other words, a society enjoys constitutional governance to the extent that processes of representation and accountability are working properly.
This conception of constitutionalism is sometimes expressed in terms of the right to self-determination, namely, the right of people to freely determine their political status and pursue economic, social, and cultural development. But the realization of this right should be seen as a continuous process, rather than being exhausted or extinguished by the achievement of political independence from external colonial rule. Political independence is a necessary but insufficient condition because a people can be as oppressed by the internal hegemony of a ruling class or group, or an exclusive ideology, as they can be by external colonial rule. While internal hegemony is generally harder to resist than external colonial rule, it is even harder to resist when it is justified in the name of religion.
To conceive constitutionalism in terms of the ability of people to influence the course of events that shape their lives at the personal, familial, and communal level would emphasize the need to safeguard the necessary “public space” for people to safely and freely seek and exchange information regarding public policy issues, and to organize with others for action in furtherance of their own objectives. This basic conception of constitutionalism would also indicate that equal access to and ability to use such public space must be secured for all citizens of a country. It would therefore follow that the essential nature and basic function of constitutionalism preclude the exclusion of any citizen from the full benefits of citizenship because of gender or religious beliefs…
It may also be helpful at this stage to note the relationship between structures, institutions, and processes of specific constitutional traditions, on the one hand, and the values and objectives that can be extrapolated as universal features of constitutionalism in general, on the other. Commonly accepted features of constitutionalism, such as the principles of popular sovereignty, separation of legislative, executive and judicial powers, and independence of the judiciary, are normally realized through different structures, institutions, and processes in various countries. …for example, separation of powers and independence of the judiciary can be secured either through structural and institutional arrangements, as in the United States, or by means of deeply entrenched political “conventions” and traditions of practice in the political culture of a country like the United Kingdom. A sharp distinction between conventions and traditions in this sense, on the one hand, and structures and institutions, on the other, can be misleading because each model requires or presupposes some degree or form of the other for its proper functioning. That is, structures and institutions require conventions of practice for their proper functioning, and constitutional “conventions,” in the British sense of the term also rely on some structures and institutions. Differences in emphasis on one or the other model are the product of the historical experience and context of the country, rather than the result of a deliberate single choice that was made at a specific point in time. In the final analysis, what is important is the ability of the system to achieve the desired constitutional objectives, rather than the precise manner in which it seeks to do that.
But this does not mean that all conceivable systems are equally conducive to the sustained realization of the separation of powers or independence of the judiciary as principles of constitutionalism. While this is usually a matter of degree, there is a point where some mechanisms are too inadequate to be acceptable if the principle in question is to be upheld at all. For instance, while some executive discretion in the appointment and tenure of judges is unavoidable, total reliance on the “good faith” of those responsible for such determinations without external checks or safeguards will defeat the principle of the independence of the judiciary. For example, allowing such executive discretion to discriminate on grounds of sex or religion in making judicial appointments amounts to the total repudiation of the principle of constitutionalism itself. As explained below, this is the sort of constitutional objection to traditional formulations of Sharia that cannot be overlooked as merely minor variation in practice.
… The point to emphasize here is that both the emergence of consensus on certain features of constitutionalism, and their detailed formulation and implementation in each country, are the product of particular experiences in specific global and local contexts. In other words, the meaning and implications of constitutionalism for a given country is the product of the interaction between broad universal principles and specific local factors and processes. The universal principles themselves are distilled from the specific experiences of a wide variety of countries, which were in turn produced by a similar interaction between the universal and the local in their respective context (End of Excerpt).
In his book, Islam and the Secular State, Abdullahi Ahmed An-Na’im argued that claims of the enforcement of Sharia by the state are conceptually false because the outcome of enforcement of any legal principle by the state is always secular, regardless of the presumed Sharia source of the norm:
“If such enactment and enforcement [of Sharia principles as state law] is attempted, the outcome will necessarily be the political will of the state and not the religious law of Islam. The fact that such claims are sometimes made by ruling elites to legitimize their control of the state in the name of Islam does not mean that such claims are true.”[1] In conclusion, An-Na’im said:
To summarize, whenever the state has been used to enforce Sharia, the outcome has been a highly selective set of principles in total isolation from their legitimate methodological sources. Frozen in this manner, Sharia has become a reified symbol of communal identity and a zone of contestation of political authority. In addition to being open to political manipulation, this appropriation of Sharia by the state made seizing the state itself the primary objective of those advocates of coercive enforcement of Sharia through state institutions. Whether they succeed or not, that quest makes Sharia the symbol of despotic and authoritarian rule among the population at large. At the same time, the creative and liberating possibilities of Sharia are stunted and constrained by the bureaucratic inertia of state institutions.[2]
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Abdullahi ahmed An-Naim, “The Compatibility Dialectic: Mediating The Legitimate Coexistence of Sharia and State Law,” 73 Modern Law Review (2010), pp. 1, 2-5.
I should also note that my personal engagement with the subject of this lecture is not based on an assumption that the state anywhere is neutral or benign, or that state law is always just and legitimate. The state is a political institution, and state law is often used by the ruling elite and privileged classes and groups to advance and protect their interests. These realities of the universal human condition must always be understood and taken seriously in our pursuit of individual freedom and social justice. To achieve and sustain these objectives, it is imperative to exercise constant vigilance and engage in political struggle for the transparency and accountability of all official institutions and actors. I believe my proposed approach to the relationship of Sharia and state law is premised on a clear appreciation of the need for such vigilance and struggle in the cause of individual freedom and social justice. I will not elaborate further on this because it is not the subject of this lecture, but only wish to register my position in this regard.
The subject of this lecture, with due regard for these realities, is the relationship of Sharia to state law precisely because this issue is integral to contemporary global struggles for individual freedom and social justice. Muslims constitute the predominant majority in at least forty countries and significant minorities in many others across all regions of the world; the public role of Sharia is a global issue. The subject is also important from a comparative perspective for other religious systems and cultural traditions, regarding the meaning and implications of legal pluralism and related issues. With this framing of the subject in mind, let me summarize my main argument and explain my approach.
First, my general argument is that the nature of Sharia as a religious normative system, on the one hand, and of the state and state law as secular political institutions, on the other, require clear differentiation between the two in theory and separation in practice. However, the methodological and normative similarities between Sharia and state law, and the fact that they both seek to regulate human behavior, raise possibilities of dynamic interaction and cross-fertilisation between the two…
The premise of this argument is that Sharia is not now and cannot be the state law of any state, whether Muslims are the majority or minority of the population. Sharia cannot be enforced as state law and remain Sharia in the sense that Muslims believe it to be religiously binding. Since the enforcement of Sharia through state institutions negates its [Sharia’s] religious nature, the outcome will always be secular, not religious. In other words, all state law is secular, regardless of claims of an ‘Islamic state’ that enforces Sharia in countries like Iran and Saudi Arabia. As I see it, the choice for Muslims regarding legal adjudication and enforcement of rights and obligations is between good or bad secular law, not between Sharia or secular law; between a good or bad secular state, not between an Islamic or a secular state.
This view does not dispute the religious authority of Sharia, which exists only outside the framework of the state. As a Muslim, I believe Sharia is always relevant and binding on Muslims, but only as each Muslim believes it to be and not as declared and coercively enforced by the state. For any act to be religiously valid, the individual believer must comply voluntarily, with the necessary pious intent (nya), and without violating the rights of others. This focus on the individual believer is integral to Islam. Still, principles of Sharia should be relevant to the public discourse, provided the argument is made in terms of what I call ‘civic reason’ and not simply by assertions of what one believes to be the will of God. By civic reason I mean that the rationale and purpose of public policy or legislation is based on the sort of reasoning that the generality of citizens can accept or reject, which cannot happen when such matters are demanded as categorical religious mandate. The process of civic reason also requires conformity with constitutional and human rights standards in the adoption and implementation of public policy and legislation. All citizens must be able to make their own legislative proposal or object to what others are proposing through public and fully inclusive public debate, without having to challenge each other’s religious convictions. Moreover, by its nature and rationale, civic reason is not limited to Sharia principles and can apply to other religious normative systems. Civic reason and reasoning, not personal beliefs and motivation, are necessary whether Muslims or members of any other religion or tradition, constitute the majority or the minority of the population of the state.
Secondly, my approach, which seeks to mediate what I call ‘the dialectic of compatibility and incompatibility’, suggests that these two types of relationships can exist between Sharia and state law when the two systems apply to the same human subjects within the same space and time. On the one hand, as already indicated, the premise of my affirmation of the incompatibility of the two systems is that Sharia and state law are different types of normative systems, each based on its own sources of authority and legitimacy. This does not mean that state law is superior or more effective in regulating human behavior than Sharia (or any other non-state system). On the other hand, I propose, the possibilities of compatibility can draw on the similarities in methodology and normative content of these two systems. Moreover, Sharia normally requires and sanctions obedience to state law in the interest of public peace and justice, and state law may in turn incorporate some principles of Sharia through civic reason and subject to constitutional safeguards. Possibilities of compatibility are also supported by the fact that Sharia and state law are complementary normative systems, rather than by requiring either to conform to the nature and role of the other.
The proposed mediation of this dialectic is premised on a distinction (not dichotomy) between Sharia and state law to avoid confusing the function, operation, and nature of outcomes when the two systems co-exist in the same space and apply to the same human subjects. If state law enforces a principle of Sharia, the outcome is a matter of state law and not Sharia; it does not have the religious significance of compliance with a religious obligation. Conversely, compliance with Sharia cannot be legal justification for violating state law. For Sharia and state law to be complementary, instead of being in mutually destructive conflict, each system must operate on its own terms and within its field of competence and authority.
Thirdly, though I focus on current notions of the state and state law as globally applicable ideas that have spread far beyond their European origins, I emphasize the distinct historical and contextual workings of these institutions throughout the world. European-derived conceptions of the state and state law are those under which all human societies live today. This does not mean that these ideas are working well everywhere, or that they must apply in the same way in every setting. It is not possible to evaluate or discuss here the distinctive ways in which these institutions work and evolve in various settings, but the need for such analysis is fully acknowledged.
Fourthly, I should emphasize that my argument and analysis are intended to apply whether Muslims constitute the predominant majority or a small minority of a state’s population. Recalling the above-noted distinction between religious law and state law, I argue that Sharia cannot be enacted into state law and remain ‘religious’ as such ― regardless of the religious affiliation of the population ― but it can influence the development and interpretation of state law and contribute to its legitimacy among Muslims. The massive codification projects of the Egyptian jurist Abdul Razeg Al-Sanhouri (1895-1971) for several Arab countries illustrate the potential possibilities of such a synthesis of traditional Sharia jurisprudence and modern state law, whereby Sharia principles are ‘incorporated’ into modern legal codes as secular state law, rather than Sharia as such….
Fifthly, to emphasize the point, this broader jurisprudential dimension does not imply that Sharia as such can be compatible with state law in the sense that the two systems can co-exist as competing legal systems of any country. In view of the centralized, bureaucratic, and coercive nature of the modern ‘territorial’ state, as explained below, the secular legislative organs of the state must have exclusive monopoly on enacting state law, and secular judicial (and, as appropriate, administrative) organs must also have exclusive authority to interpret and apply that law. At the same time, principles of Sharia can be compatible with state law in substantive terms through the jurisprudential dimension. The existence of strong similarities between Sharia principles of, for instance, contracts and property and corresponding principles in many modern legal systems should facilitate the incorporation of those principles into state law through civic reason. [END]
The above excerpts suggest that the concept of an Islamic state is incoherent, and that Sharia cannot be enforced by the state because the enactment and coercive enforcement of Sharia principles changes their nature into secular law of the state rather than the religious law of Islam. In other words, whenever the state claims to enforce a principle of Sharia, the outcome is secular, not religious.
2. What difference does this proposition make if it is true, when the majority of Muslims believe that the state can indeed enforce principles of Sharia? For instance, if Sharia prohibition of interest in transactions (riba), or the right of the husband to unilaterally repudiate his wife (talaq) are enforced as part of the law of the state, why is that not enforcement of Sharia as such?
Sharia and Muslim Minorities
The political and legal status of Muslim minorities everywhere is influenced by too many factors to be discussed here, and is too contingent on contextual and historical factors in each case to permit generalization. It is difficult to generalize about how Muslim issues are being negotiated in different settings due to significant differences in the legal and political context of various Western countries. For instance, while France bans female students from wearing an Islamic headscarf in schools, the United Kingdom permits them to wear the headscarf in schools provided they are otherwise in compliance with the school’s uniform requirements and funds independent Islamic schools. In Germany, there is constitutional protection for public manifestations of religion, and prohibition of discrimination or preference on the basis of religion.
Despite such variations, the general acceptance of principles of freedom of religion and non-discrimination indicate that ‘the secular legal orders in Europe do not refuse religion and are not at all anti-religious (lā-dīnī) as is often wrongly assumed. On the contrary, they [secular legal orders] open a broad space for religious belief and practice. It is only that the state itself has to be neutral and is prevented from interference with religious affairs. Subject to this caveat, when we consider the situation of the Muslim minority in the United States we find that they seem to thrive in a liberal democratic state, with effective protection of their fundamental rights and the ability to organize their religious, social, or cultural activities in ways that are at least officially equal to those of majority communities. These benefits are secured for all religious communities by the First Amendment of the Constitution of the United States, namely, the combination of prohibition of the establishment of any religion by the state and the requirement of free exercise of religion.
This same constitutional foundation of their rights as equal citizens of the United States ensures that American Muslims cannot have Sharia itself enforced as state law at any level in any field, including family relations. What does the case of American Muslims tell us about Muslim minority situations everywhere? It is always a “trade-off” between constitutional protection of equal citizenship, on the one hand, and aspirations to enforce Sharia as state law? Is it possible for any Muslim or other religious minority to have both? If not, is it more important to focus on how to improve the socio-political and legal status of Muslims in different states, or to seek the state enforcement of Sharia principles as state? In any case, can Sharia be enforced by the state or is that an illusionary mirage?
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Abdullahi Ahmed An-Na`Im, The Compatibility Dialectic: Mediating the Legitimate Coexistence of Sharia and State Law, 73 Modern Law Review (2010), pp. 22-28.
The Mirage of Sharia for Muslim Minorities
Recalling earlier remarks about the dialectic of compatibility and incompatibility [see first except, above], I will now discuss what I call the mirage of Sharia in Muslim minority situations, in order to conclude with a plea for taking Sharia seriously in terms of citizenship participation instead of reluctant accommodation. As the following review will show, the ways in which Sharia is invoked (in modern legal systems) is a mirage because the outcome cannot be Sharia itself. In all cases, it is state law that determines the degree and manner of relevance of Sharia, and subjects it to whatever rationale and limitations state law decides to apply. The judges and other legal professionals involved in the process neither have the knowledge or training to be competent in Sharia, nor hold the religious authority to interpret Sharia on its own terms. The outcome can never be legitimate from an Sharia perspective, which is the alleged rationale. Instead of continuing to chase this mirage, it is better for Muslim minorities to come to terms with state law and explore ways of influencing it from their religious and cultural perspective through civic reason and engaged citizenship, as explained earlier….
Since it is not possible here to examine the wide range of national policies in detail, I will try to present a thematic sampling of the issues within this general framework. To locate this review within the general thesis and analysis of this lecture, I will begin with the relatively simpler freedom of religion and related ‘accommodation’ matters. These types of issues are easier to deal with because they require the least normative adjustment on the part of the Western states and societies or can be ‘managed’ by Muslims without the need for such adjustments. In contrast, some family and other concerns raise a more serious challenge to both Muslim majorities and minorities because they either require more serious normative ‘concessions’ by Western states and societies or are harder for Muslims to manage on their own.
Regarding the first type of issues, I am thinking of a spectrum of issues framed by the application of freedom of religion principles at one end and appeal to reasonable accommodation at the other end, but it is not possible or helpful to see these issues in binary terms. Religious freedom arguments can be raised in calls for accommodation, while general public policy factors are taken into account in applying religious freedom principles, as I will note during the following review. Accordingly, for instance, Western states and societies tend to respect religious demands by Jews and Muslims for special arrangements regarding dietary requirements – kosher for Jews and halal for Muslims. Yet, this apparently straightforward matter of freedom of religion can still be implicated in wider political or institutional issues. For example, the Constitutional Court of Germany ruled in 2002 that freedom of religion included the right of Muslims to slaughter animals in accordance with Islamic principles with a special license under the Animal Protection Act. The reason why the issue had to be ruled on by the Constitutional Court was that some German courts initially refused to grant this right to Muslim applicants for the license because they did not have an organizational structure that is recognized by the state, as is the case for Catholics, Protestants, and Jews. The Constitutional Court overruled those earlier decisions by deeming the organizational structure requirement irrelevant as long as the application is based on religious beliefs. The point to note for our purposes here is the existence of the requirement of state recognition of religious organizations in Germany and some other European states like Italy and Spain. Although found to be irrelevant to this case, and regardless of what one thinks of the appropriateness of this requirement in one setting or another, the existence of this factor itself confirms my earlier remark that such legal determinations are made as a matter of secular law, rather than immediate conformity with religious rationale.
Moreover, in reaching its decision, the German Constitutional Court pointed to a lack of evidence that halalslaughtering was more painful to animals than the methods generally practiced in Germany. The point to note for our purpose here is that other factors, cruelty to animals in this case, were taken into account in permitting a claim based on Muslims’ perceptions of a religious obligation. I take this consideration as an exercise in civic reason, whereby public policy is justified in terms of reasons other citizens can appreciate and debate, instead of being exclusively founded on religious beliefs. Such weighing of religious demands against other factors can also be seen in other religious discrimination cases. The German Federal Constitutional Court has ruled it is a violation of the constitution’s protection of religion for an employer to discriminate against a Muslim woman for wearing a headscarf without adequately showing that this style of dress causes a significant burden to the employer. But a claim for public assistance by a Muslim woman wearing a niqāb (total cover of the face and body which leaves only the eyes visible) was rejected by the Administrative Court in Mainz on the ground that this particular kind of clothing would prevent her from finding employment. The Court also noted that the applicant did not produce any explanation for the necessity of wearing this severe style.
An example of what I call accommodation are the so-called ‘Sharia-compliant’ methods of investment which allow Muslims to invest without violating Islamic prohibitions such as usury and investments in industries that are prohibited. For example, German and Swiss banks offer Sharia-compliant share packages that do not include investments in industries prohibited by Islam such as alcohol, tobacco, interest-yielding credit, or the sex industry. In the United Kingdom, ‘Islamic mortgages’ enable Muslims to avoid the prohibition against usury….
Reference to Sharia may also appear in the application of general principles of state law, like conflict of laws or private international law in appropriate cases or enforcement of arbitration decisions by state courts. A range of cases involving this sort of reference to Sharia can be cited from the United States [see below]….
As noted earlier regarding European examples, Sharia is being applied in such cases in the United States as a matter of secular state law, subject to state law rationale, and not by virtue of the authority of Sharia as such. The state courts are either applying ‘foreign law’ as the applicable choice of law according to their own domestic law, or enforcing the outcome of arbitration, which could have applied to whatever substantive and procedural rules the parties accepted. In either scenario, Sharia provisions are being applied by a competent state court, and subject to whatever safeguards or limitations that state law imposes.
This secular law quality is also true of cases involving stronger possibilities of conflict between Sharia and state law principles. Although there can be a significant degree of normative compatibility between Sharia and state law, as noted earlier, there are also clear points of conflict with European and North American legal norms regarding, for instance, discrimination against women in family law matters like polygamy, unilateral divorce by the husband, custody of children, and rules prohibiting non-Muslims from inheriting from Muslims. These discriminatory aspects of Sharia will be rejected by the courts in France, the Netherlands, Germany, and Belgium, even when approached as a matter of foreign law in applying private international law principles of state law.
It is reasonable to assume that many matters of serious normative conflict escape the attention of state authorities and public opinion. For instance, though official laws in the United States prohibit and punish polygamy, there seems to be substantial numbers of polygamous families within Muslim communities outside the framework of official law. When such matters do register in the official or public mind, Western states and societies have responded in different ways…
It can be argued that none of the preceding ways of reference to Sharia are problematic from a state law perspective because they are in accordance with the terms and conditions of the state law in question. These policies may even be promoted by some as legitimate forms of legal pluralism in response to legitimate demands of Muslim citizens and lawful residents…. Some Muslim groups in England are seeking to establish a separate system of Muslim personal law with a semi-official status to address problems of discrepancy between Islamic and English marriage and divorce law, like the so-called ‘limping marriage’ where Muslim women are deemed still married under Sharia after obtaining a civil divorce. Muslims are also following the Jewish practice of religious arbitration as a form of alternative dispute resolution within the larger framework of English law. This context has been the backdrop for the controversy around the Archbishop of Canterbury, Rowan Williams, who is reported to have ‘suggested that some sort of accommodation between Shariah, or Sharia, and the law of Britain was not only ‘unavoidable’ but advisable.’ This controversy continues at the time of writing, as press reports assert that Sharia court rulings are now issuing binding judgments as arbitration tribunals under the Arbitration Act of 1996. A similar debate in Ontario, Canada, resulted in the abolition of religious arbitration by the enactment of the Family Statute Law Amendment Act in 2006. [END]
The question may also be raised: Should such demands by Muslim minorities be granted, even if they are constitutionally feasible? What do you think of the following two objections: First, the premise that this will result in the application of Sharia as such is false because the outcome will always be state law on its own terms. Secondly, conceding such demands is detrimental to the interests of the Muslim minorities as well as to the integrity and legitimacy of the state legal system as a whole. Detrimental consequences for Muslims include perpetuating negative stereotyping an as alien and regressive community which is demanding exceptional treatment.
It can also be argued that the perception of Muslim minorities as regressive ghettos seeking relativist exemption from fundamental constitutional and human rights standards will surely lead to general political and social marginalization of Muslims among other citizens and society at large. The perception of Muslims that they can ‘address’ their concerns in this exceptional manner will also discourage them from serious engagement with the political and social mainstream of their country, thereby diminishing their ability to influence more substantial domestic and foreign policy.
The apparent dilemma raised by the demands of Muslim minorities for exceptional treatment in the name of freedom of religion is detrimental to the integrity and legitimacy of the state legal system as whole. On the one hand, if Muslim demands are conceded, the legal system would be discriminating among citizens and communities on grounds of religion. If Muslim demands for exceptional treatment are rejected, the legal system could be charged with discriminating against Muslims. In either case, the integrity and legitimacy of the state legal system would be at risk. Both scenarios, it may be argued, reflect a failure to take Sharia seriously on its own terms.
[1] Abdullahi A. An-Nacim, Islam and The Secular State (2008), p. 1.
[2] Id. at p. 289.