Misrepresentations and the Future of Islamic Law in the United States-

Michigan State Law Review, Volume 2006, Special Issue 6

For most observers, Islamic law appears to be a stagnant, archaic, violent, oppressive discipline of endless prohibitions and injunctions which are difficult to imagine in modern times. When asked about Islamic law, many observers call upon televised or documentary images of the stoning of women, threats to cut off hands, threats to kill men who convert to other religions or pictures of women after acid has been thrown in their faces. The images reflect Muslims lands that are lawless as Muslims burn effigies of President George Bush or American flags in the streets. Clearly these images are without context but just as clearly, the acts do happen. Some American Muslim scholars are diligently working to provide some context to both what has happened with Islamic law and the actions of Muslims on the streets in the Muslim world while others continue to perpetuate the reasoning that result in the acts portrayed by television. What a dilemma!!
One intention of this paper is to open the door to critique by non-jurists while examining the obvious, the practices of the law bear little resemblance to the original intent of Islamic law and the future of the law in America is problematic at best. American Islamic jurists are working to unravel the embroidery to reveal the fabric of the law and fighting an uphill battle against a mal- and uninformed community and a large number of jurists whose authority rests in the status quo and its extension. If there is a future in the use of Islamic law it probably will be with the guidance of American and European Muslim scholars.

Questions consistently arise around authority when speaking of Islam and Muslims. Muslims’ usual reply is that there is no clergy in Islam forgetting that the class of jurists holds this authority over theologians, ethicists, and other scholars of Islamic sciences. Muslims have learned over the last few centuries that they are to obey this authority even if it is wrong, corrupt or otherwise disabled and unfortunately, it is. How did this happen? Shaikh Hamza Yusuf responds:

    Endowments that once acted as social security for students and teachers all over the Muslim world have been usurped by the ministries of endowments. Our madrasas are now museums; our teachers are mere employees; and our students of sacred law no longer come from the intellectually gifted sons and daughters of our community but rather from uneducated families motivated by the possibility of securing the job of imam in a government masjid. This is often coupled with a mentality of extreme poverty and a crude desire for the empty stuff of this world. [1]

Khaled Abou El Fadl situates his concurring response in a loss of the “ethos of knowledge.”

    Regardless of the historical reason, the ethos produced a remarkable richness in the quantity and quality of the intellectual product of the Islamic civilization, and this intellectual richness left its undeniable mark on the world at large. Significantly, this richness and diversity is, for the most part, lost in contemporary Islam. There has been a sharp and clear deterioration in the ethos of knowledge in the Muslim world today.  [2]

If, and this certainly seems to be the case, there is a rupture in the line of a rich, epistemological legacy followed by a lack of  intellectual prowess, then the innate sense of justice perceived by many Muslims and the fallacious arguments presented by many contemporary jurists follows. Those observers do indeed correctly perceive a serious problem; one that is especially important for Muslim communities everywhere. Amira El Azhary Sonbol, in her introduction to Women, the Family, and Divorce Laws in Islamic History, provides usable examples of one aspect of the problem. She describes the rulings in two divorce cases.

    [In 1857] A woman came before the courts demanding to be divorced from her husband, who had broken his word by remarrying his first wife. It seems that, at one point during their marriage, he had divorced the first wife and promised the second never to take back the first. As that time, his second wife made it a condition that she would divorce him if he ever remarried his first wife. After the woman produced the requisite witnesses to his promise and his alleged remarriage, the court granted her a divorce and she received full financial compensation from him.

    In another court case [1959], a woman who had been beaten, abused, and “denied the shari’s’s guarantee of protection and good treatment” by her husband was refused a divorce by the courts even though she was demanding khul (divorce by repudiation), thereby giving up all financial compensation due her from her husband. The husband, who by law had exclusive access to divorce (divorce being exclusively the man’s right except in the rare case where it is otherwise declared, which was not the case in this marriage), held out and demanded financial compensation over and above what he would have to pay her in case of divorce. Because the case was complex, it was referred to the mufti (on religious legal position) who disregarded the shari’a’s guarantees to the wife yet, using the shari’a, found for the husband and issued a general fatwa (juridical opinion) legitimizing a husband’s right to exact payment from his wife in return for a divorce. [3]

Sonbol sees a change coming as a consequence of reform movements and assesses, “these two cases are not unique but rather illustrate the contrast between the interpretation and application of shari’a before and after the legal reforms experience by the Islamic world since the end of the nineteenth century.” [4] In the introduction to his translation of Abu Hamid al-Ghazali’s Faysal al-Tafriqa, Sherman Jackson notes that on this text which examines the boundaries of theological tolerance in Islam:

    I assumed that Faysal had been the object of numerous scholarly studies and that I would eventually encounter these as I continued to read in Islamic law and theology. To my surprise, I discovered that, while several scholars had dealt with aspects of Faysal in the course of treating other authors or issues, there had been no studies devoted specifically to Faysal itself. Moreover, almost all of those chapters and sections of books and articles that did treat of the work seemed to miss al-Ghazali’s deep ecumenical concerns, which seemed so prominent and obvious to me. [5]

To me, the non-jurist, the issues and concerns are just as obvious. We have a multi-pronged problem – (1) we have jurists who have for generations emerged from impoverished circumstances thus with limited intellectual experiences who can only memorize and serve; (2) we have a class of imams and jurists who disregard the guiding principles of the law arbitrarily; (3) there is a narrowing of knowledge due to a rupture in the ethos of a rich heritage of knowledge; and (4) we have scholars who read at texts to reference them for other works, missing the arguments and potential solutions along with analyses of those texts from that ethos of knowledge even when they do encounter them. The result is what many observers witness – a law that seems, archaic, violent and oppressive. What happened and why pale as questions to the question, why have Muslims acquiesced to this situation?

What is being described here are very serious, life-threatening issues. While Muslim scholars and imams alike would prefer to place much of the causal analysis (when they do any analysis) in the legacy of colonialism, economic problems, or the deterioration of private endowments and the rise of state monopoly over knowledge; I would like to suggest that if all of these reasons are accurate, there still remains the question – what is being done about it? Deterioration takes time and can be accelerated by many factors but to have the guidance and refuse to use it must be a crime somewhere. But there is something even more sinister afoot. There has to be a reason for turning Islamic law into an institution of prohibitions and injustices. There has to be a reason for the lack of mercy and sound judgment. Why is the community being focused on the minutiae rather than the larger concepts of justice, mercy and tolerance?

It seems as though one seat of the matter lies in “issues of authority.” As in other laws, Islamic law has a set of guiding principles unique in that they derive from the worldview of the Qur’an with God as sovereign and have a distinguishable ethical component that depends on faith. Much of what we have as “rulings” seems to be there because they support the authorities while the issuing of rulings creates authority for the jurists. In this scenario one result is that any analysis of the content of the ruling is lost. Muslims are taught to depend on the authority of the Qur’an and the Prophet of Islam. Jurists have extended this line to include themselves by ending their rulings with pronouncements of the spiritual fate of those who reject their decisions.

These rulings on minutiae create a body of work that would be a fascinating study in microscopic examinations which are centered on control with faith acting as a panopticon with a voyeuristic community ready to pounce on any infraction but paralyzed to do anything more. Muslims learn little about justice, tolerance, egalitarian relationships or how to mediate or mitigate discord but learn how to brush their teeth and which foot put first into the bathroom. The teachings are those of control. Every bodily function requires a ruling as does every act.

In our first example from Sonbol, the jurist sought to remove the harm by granting a divorce for breach of promise after the proper evidence was presented. This is what one would expect any jurist to do. The second case however, presents us with evidence of dislocation and tyranny. In Egypt, men have the sole right of divorce unless there is a contract where this is mediated. This goes beyond what the Qur’an says in its prescription for mediation of marital discord. Additionally we have a case where a woman has been beaten and abused with no way out as the court decided that she has no right of divorce. This is barbaric by any measure. Even when she asserts a willingness to forgo any compensation and anything given to her, she still has no rights. The icing on the cake is when the judge then makes her pay the husband to be divorced in addition to giving up everything. How can this be seen as just? Not only has the harm not been removed, it has been compounded many times over. How can anyone see Islam as just when its interpreters are so abusive of the law? Whatever the rationale for ignoring a basic guiding principle, it concludes in a misrepresentation of Islamic law and affirms the images of oppression.

Another core principle is that “certainty is not removed by doubt.” Islam, according to the scholars is a religion of permissions not prohibitions. [6] “Certainties and sound opinions are not to be replaced by conjecture, speculation and doubt.” [7] Certainties can only be replaced by evidence that is “equally certain.” One fallacy often used today is that if the Prophet of Islam and his companions did not mention or do a thing, it is impermissible. It is known that the Prophet sometimes did not do something because he did not like it or it was not his personal habit or it was not a custom of his people.

One poignant example is found in Islamic Fatawa Regarding Women, a very popular book from Saudi Arabia. Here the Grand Mufti of Saudi Arabia Shaikh ibn Baz rules on matters pertaining to women. [8] In one section he is asked, what is the ruling concerning celebrating birthdays? His response:

    Celebrating birthdays has no source whatsoever in the “pure” shari’ah. In fact, it is an innovation, since the Messenger of Allah (pbuh) said, “whoever introduces anything into this matter of ours that does not belong to it shall have that action rejected.” [9]

Shaikh ibn Baz goes on to verify the hadith as recorded by both al-Bukhari and Muslim, rather than making any connection between the question which is not about a matter of faith and the hadith which is about matters of faith and worship. Why is this a question anyway? We will get to that a little later. This is clearly a non-sequitor as the question and answer are not related. As stated previously, because the Prophet of Islam did not engage in an act is not evidence of its impermissibility. Further, this type of question and answer scenario neglects several core principles of Islamic law. There is an historical Islamic understanding that customs (those not affecting faith or worship) in cultures around the world are not sui generic bad or to be prohibited unless these customs interfere with the obligations of faith or are in opposition to faith or cause harm.

One would expect jurists to state the context of the question and thir own context so that readers can judge for themselves if the ruling is for a specific locale or if the context of the question does indeed suggest that for this person, the celebration of birthdays somehow interferes with faith. Texts like this one purport to answer pressing questions of faith with rulings that are universal when they are really locale specific in support of an ideological stance. In many contemporary Muslim communities the line between matters of faith/worship and the large area of neutral acts of everyday life have been obliterated just as has the distinction between revelation from God and man’s interpretation of revelation. Even the truth is an issue of proof. Revelation proves its truth using the observable. God proves His power by what you can observe. In the Qur’an there is a presumption of sentience and rationality in human beings. In Sonbol’s first case, the woman seeking divorce knows that her complaint could be dismissed as without merit if there is no evidence to prove her claims. By providing witnesses to both the promise and the remarriage, she provides certainty for her assertions. What is the proof that celebrating a birthday is introducing something into the categories of acts that obligate Muslims?

That “certainty is not removed by doubt” is especially important in America. One pressing set of issues surrounds the presence of Muslim women in the mosque and in the mursalla. What is certain is that during the time of the first community, the Prophet of Islam did not put a physical barrier of any kind between men and women. In the Muslim world there is the thought that Muslim men are unable to control their sexual desires during worship so, there must be a physical barrier of some sort between the genders to protect Muslim women from Muslim men. While Shaikh ibn Baz and other jurists are adamant in giving a negative response to the permissibility of celebrating birthdays calling them an innovation with out an antecedent situation few, if any, jurists have even commented on the obvious innovation of placing a partition of any sort in the mursalla to separate genders. Here we have an innovation that does indeed affect worship that demands a response. How many Muslim men have had to go to the psychiatrist to treat their pathological malady? If there is no evidence that Muslim men would attack and rape Muslim women in the mosque without a partition then this assertion is speculative and pure conjecture on the part of jurists. Nevertheless, it causes harm to women who are prevented from engaging in the fullness of congregational prayer. The certainty of the Prophet of Islam’s behavior is recorded and witnessed. Why ignore it and create something new? Who benefits? Are there issues of authority that transcend even certainty? Islamic law says that there is the presumption of continuity – things remain what they are until it is proved otherwise by revelation. We need those psychiatric reports! Muslims must follow what they know is certain and demand proof of speculative offerings.

Another point of guidance considers those customs which are in general, recognized to be good or neutral regarding acts as rules to follow. Muslims are asked to command the good because it is known to be good, experienced as good, not speculated as good. In meeting Arabians and others as recorded in hadith literature, the Prophet of Islam was accepting of their good or neutral customs when they did not interfere with Islamic belief or practice. This, of course, did not pertain to any custom but to those which were well-known since custom is not a substitute for revelation just as interpretation is never a substitute for revelation.

Muslims all over the world live their customs and over the centuries have written into the law interpretations which support their practices. For example, all Muslim cultures have some form of entertainment. Women have parties with women dancers and musicians. The form and content of entertainment of course follows their customs. Those parts of cultural performances which go beyond Islamic understandings of moderation and decency have been engaged and largely eliminated but the event remains. American Muslims from the Muslim world however, have now engaged themselves in another innovation – the declaration that all forms of entertainment are prohibited. I would offer that it is the embarrassment of having to find safety and security in the West while the Muslim world is inhospitable and in chaos that drives these new rulings.

Jurists must know the customs of the Prophet and not try to hide them. They must also know the people about whom and to whom they speak so that a ruling cannot cause harm. Islamic law is focused on the preservation of life, religion, family etc. The guiding principles are extremely important to the future of the law anywhere. The disconnection between the principles and current practices is evident. There is little discussion on the fact that the jurists’ rulings are now transcending the certainty found in the Qur’an itself. Islamic law is now an extensive rhetorical exercise which comments on the details of everyday life intertwining them with matters of faith and practice. And it is because of this intertwining that authority over the community is maintained as the people fear the hell fire.

Living in the west, especially the United States puts all the claims of power and authority of Islamic jurists to the test of relevancy and the pursuit of justice. The American Muslim community, like other Muslim communities, invests its Islamic life in Islamic law since adherence to the law qualifies one for community membership. Living in the west however, also dilutes the penalties for not following the absurd by exposing Muslims to each other and to another kind of law. Here in the United States women are able to get divorces with alimony and child support with or without consultation, for example. Inside the community however, Muslims are pressured to conform with what they do not understand and the absurd. In another example, Shaikh ibn Baz issues a “Ruling Concerning a Woman with a non-Mahram Chauffeur.” His ruling states:

    It is not allowed for a woman to ride alone with a driver and nobody else is present, as this is considered the same as being in privacy. It is confirmed that the Messenger of Allah (pubh) said,
‘A man cannot be alone with a woman unless with her is one of her male relatives (mahram).’ ‘A man is never alone with a woman except that Satan is the third.’[10]

All of this is based on several presumptions – women have Muslim men in their families and those that do have some willing to take the time to chauffeur them around; women can stay at home if the previous condition is not met and that there is bound to be suspicious activity with some one available to observe and report. What a ridiculous list of nonsense. Here in America, many of the taxicab drivers in major cities are Muslim. This occupation is often one that undereducated immigrant and indigenous Muslim men find reasonable as it provides a means to support their families. This ruling states, without qualification, that their jobs are not permitted because women who are alone may hail their taxi for transport and they can only drive women accompanied by mahram males or who travel to work or leisure in groups. Many U.S. cities have ordinances which forbid a refusal to pick up passengers and certainly there would be suits if a female passenger was not picked up because of her gender. American Muslim women often take cabs, limos and other transport for hire in the course of their daily travel. Those women who have transitioned to Islam may not have mahram males in their families. This ruling brings harm that would not otherwise exist. It prohibits the driving of taxis in America by Muslim men and the use of almost all private transportation for Muslim women. Because the context of the question is not presented, readers presume that the ruling is universal. Shaikh ibn Baz does not provide either context or commentary. What is an American Muslim to do with this ruling? Ignoring it affects faith while following it brings harm. Is this manifest ignorance on the part of the jurist or just arrogance or is it extending a Saudi hand into American Muslim communities?

These rulings are sent in texts as Islamic law to America. They carry authority. The categories are never challenged and their rationales are accepted as second only to Revelation and sometimes they transcend Revelation as none of the absurdities are found in the Qur’an. Yet, rulings like this are perpetuated as authoritative and are followed by more than a few American Muslims. What are some of the dilemmas that extend from this lack of an ethos of knowledge, an ignorance of a legacy of tolerance and general oppression? We have seen them most prominently since September 11, 2001.

Islamic law is one of the spokespersons for what Islam is and who Muslims are as it details the ethical philosophy and the guidelines for behavior. In the face of accusations of terror, most Muslims could not speak at all as they had no authority. Authority rests in the hands of imams and jurists. In most, if not all, communities where the focus of the law as handed down is on women – their dress, bodily functions, presence and issues like whether or not to celebrate birthdays and whether or not one can drive a taxi or ride in one, how could there be a cogent response to a real issue? No one interviewed on television, radio or in the newspapers could articulate the guiding principles of Islam and no one was willing to move against terror. Why could Muslims not speak? Well, precisely because in the absence of leadership in America and a dependence on texts like Shaikh ibn Baz, what could one say except “Islam means peace.”

The disconnection from an ethos of knowledge, an ignorance of the guiding principles of the law, the ignorance and arrogance of an intellectually limited authoritative class and a method of training which has eliminated readings of relevant texts have paralyzed the American Muslim community until very recently. Over the centuries the discipline of law has become unnecessarily difficult as one has to go to the source of the problems to study and become authorities. This means that more of the same is produced as authoritative. All the Islamic jurists are not consulted as Arab jurists remain the “real” authorities whether in actually they seem to be lacking in broad knowledge. Chinese, Indonesian, African and any other ethnic group of Muslim jurists have all been trained in the same way by the same teachers so there is little hope that in the near future they will have the courage to reflect and broaden their intellectual capacities to meet the present let alone the future. One hope is that the American and European jurists will steer the course in another direction and support each other in the effort.

There must be a rebuilding of that ethos of knowledge and a broadening of it. Fresh eyes have to review significant texts like Khaled Abou Fadl and Sherman Jackson have done to give relevant perspectives. Law professors like Umar Abd Allah have to widen the classes they teach to bring the authority to the common person so that they can regain their ability to discern what is best for them. This is the hope. The tools are there.


[1]. Hamza Yusuf’s forward to Ta’lim al-Muta’allim Tariq al-Ta’allum.
[2]. Khaled Abou El Fadl. Conference of the Books. Pg. xvii.
[3]. Amira Ansary Sonbol.
[4]. Ibid. p.4.
[5]. Sherman Jackson.
[6]. Qur’an 7:32, 45:13, 6:119, 10:59.
[7]. Umar F. Abd Allah.
[8]. Islamic Fatawa Regarding Women.
[9]. Ibid.
[10]. Ibid.