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PLATO Society Sharia and Islamic Law: Their Doctrinal Diversity and Status in the U. S. Legal System January 12 -February 16, 2018 Peter Krug
Today’s Meeting: Course introduction • • • My background and interest Course outline Introduction to Islamic law History of Islam, 610 -750 CE
Contact Information My e-mail address: [[email protected] edu] My phone number: (608) 298 -7233 (it’s wrong in the syllabus!)
Starting Points: Not necessary: familiarity with the history or doctrines of Islam, or specialized knowledge of the U. S. legal system. Primary format: lectures – However: questions, comments, and discussion always will be welcome.
Also, Terminology: • The terms “Sharia” and “Islamic law”: • “Sharia” (as I’ll explain) is a component of Islamic Law. • “Islamic law” is a broader term. I will use “Islamic law” generally in this course.
My Background: University of Oklahoma College of Law, 1991 -2011 Comparative and international law Islamic law unit in Comparative Law course, 1998 -2011 Not a specialist in Islamic law
Statement of Interest: • Two primary goals for this course: 1. Present information about Islamic law; and 2. Examine the relationship between Islamic law and our secular (“civil”) legal system in the U. S.
First Goal: Description of Islamic Law In and of itself, an important topic. • Fundamental characteristics • Historical development Islam is a growing presence in the U. S.
Islam A Growing Presence in the United States • Number of practicing Muslims in the U. S. in 2017: close to three million. In 2000, approximately one million. • Number of mosques in the U. S. in 2015: approximately 3, 200. There were 2, 100 in 2010, and 962 in 1994.
Islamic Law’s Importance § For Muslims, Islamic law is central to their beliefs and religious identity. According to one imam: “Without Sharia, Muslims would not be Muslims. ”
Second Goal: Status in the U. S. Legal System • Islamic law is religious law. • Its presence presents questions about the interaction between religious law and civil law.
Concerns About Islamic Law Over the past 20 years, this relationship has been challenging. “Sharia” and “Islamic law”: negative connotations for many people. • Status of women • Criminal punishments • Justification for terrorism
Supremacist Agenda In addition: concerns that Islamic law activists seek to displace constitutional rights and federal and state laws. In other words: Islamic law must be supreme.
Proposed Loyalty Test: §Former House Speaker Newt Gingrich (July, 2016): all Muslims in the United States should be questioned: “if they believe in Sharia, they should be deported. ”
Candidate Donald Trump (August, 2016): extreme vetting will expose and prohibit entry to those who hold that “Sharia law should supplant American law. ”
Similar Concerns in the Past: “Test oaths” in early state constitutions • North Carolina (1776 -1868): “No person…who shall deny the truth of the Protestant religion…or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office. ” Also, periodic concerns about Roman Catholics and loyalty to the Papacy
Inherent Tensions Between Religious Law and Civil Law Shortly, I will identify certain characteristics that distinguish religious law and civil law in the United States. However, in the past, these have not been proven to be completely incompatible. First Amendment seeks to mediate between these interests.
Does Islamic Law Present a Different Kind of Challenge? Current concerns about Islamic law include what appears to be a new, non-religious, element: “civilization jihad”
Civilization Jihad Concern that proponents of Islamic law will use lawful proceedings in the U. S. courts to displace constitutional protections and federal and state laws. Over the past decade, these concerns have sparked a movement to prohibit state courts from applying Islamic law in cases before them.
American Law in American Courts Act (ALAC) For example, a bill based on this model law currently is before the Wisconsin Legislature and legislatures in at least 12 other states. Enacted into law in Arkansas and Texas in 2017.
The Model Act (ALAC): Prohibits state courts from applying foreign laws if doing so would violate the fundamental civil rights of parties in cases before them.
Islamic Law at Least one of the ALAC’s Targets ALAC does not mention Islamic law. However, according to the organization that drafted the Model Act, it “was crafted to protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Shariah Law. ”
In sum, Goals for the Course: To examine the concerns that Islamic law poses a threat to the U. S. legal system: • Thus, it not only is important to be familiar with Islamic law, but also: • To be familiar with the status of foreign law, particularly Islamic law, in courts in the U. S.
Course Outline, Weeks 1 -3 1. Today: introduction; early history of Islam 2. 1/19: Consolidation of Islamic law, including doctrinal and structural diversity, 750 -1750 3. 1/26: Democratization of doctrinal authority, 1750 -present
Course Outline, Weeks 4 -6 4. 2/2: Islamic law in the U. S. : how it is applied generally; application of foreign law in U. S. courts. 5. 2/9: Islamic law in the U. S. : Islamic law (particularly family law) in the Muslim community, including its institutions. 6. 2/16: Islamic law in the U. S. : religious arbitration; course conclusion.
Foundations of Islamic Law Outline: What is Islamic law? 1. Religious law and civil law 2. Topics it addresses (scope) 3. Sources of its rules 4. How it is applied in the U. S.
What is Islamic Law? • Islamic law is religious law: the law of a religious community • It is a guide, a set of principles for living in accord with God’s will • An individual Muslim is responsible before God for the choices that he or she makes
• “Islam” means “submission to God. ” • A “Muslim”: one who practices Islam (submits).
Islamic Law Not Unique As religious law, Islamic law is not unique. It shares certain characteristics with other religious traditions, especially Judaism.
Religious Law and Civil Law Distinguishing characteristics in religious law: 1. Jurisdiction: not territorial 2. Voluntary compliance: absence of state enforcement 3. Scope: moral/ethical dimensions 4. Origins: divine (in part), often outside the U. S. 5. Doctrinal/structural diversity (Islamic/Jewish law)
Islamic/Jewish law: Diversity Doctrinal diversity: • Multiple opinions on questions of legal doctrine. §Structural diversity: • Absence of centralized, final authority for identification of single correct answers on questions of doctrine.
The Scope (Content) of Islamic Law: Much of Islamic law addresses acts of worship, including the “Five Pillars”: 1. Testimony of Faith (“There is no God but God, and Muhammad is God’s Prophet”); 2. Prayer; 3. Alms for the needy; 4. Fasting in the Month of Ramadan; and 5. Pilgrimage to Mecca.
Scope of Islamic Law: Its coverage also includes: • Proper forms of dress; • Dietary rules and personal hygiene; • Personal relationships (including marriage and divorce); • Property matters, including inheritance; • Commercial relations; • Certain crimes; • Conduct of war; and other topics.
Moral and Ethical Dimensions Throughout the body of Islamic law, many moral (personal morality) and ethical (social relations) commands along with more specific rules. Qur’an Verse 6: 151 (in part): “Do not fail to honor your parents…Do not take a human life, made sacred by God, except with legal right. ”
More Moral/Ethical Commands or Warnings: “Do not oppress the orphan, nor repulse the beggar. ” (93: 9 -10) “People who unjustly consume orphans’ wealth in fact consume nothing but fire into their bellies. They will be burned in a blazing hell. ” (4: 10)
To the Residents of Mecca: “You are not even gracious to the orphan, nor do you urge one another to feed the poor. And you devour others’ inheritance greedily, and love wealth fervently. Enough!” (89: 17 -21)
Sources of Islamic Law Rules: Two broad categories: • Divine origin and inspiration • Human interpretation
Sharia The rules of divine origin and inspiration make up Sharia. They are expressed in two forms: 1. The Qur’an; and 2. The Sunna
The Qur’an The sacred book of Muslims, the Qur’an is the word of God revealed gradually to the Prophet Muhammad in Arabia in 610 -632, CE
The Sunna (“trodden path”) denotes the divinely-inspired, exemplary behavior (words and deeds) of the Prophet Muhammad.
The Sunna Reports: Reports of the Sunna were originated by companions of the Prophet and other observers, transmitted over time to others, and eventually recorded and compiled.
Human Interpretation Human interpretation (fiqh in Arabic), developed over 1, 300 years, is the second component of Islamic Law. • Its development is ongoing Its historical development will be the focus of weeks two and three.
In sum, Islamic law is: 1. Sharia (divine rules and principles: Qur’an and Sunna); plus 2. Human interpretation.
How is Islamic Law Applied in the U. S. ? 1. Personal life-guide for individual believers. For example: religious practice; contracts (marriage, business) 2. Imams in their counseling 3. Scholarly institutions: seminaries; research institutes (fatwas) 4. Body of law for arbitration tribunals 5. Litigation in federal and state courts
Reviewing this Introduction I have addressed these topics: • Islamic law as religious law • Distinguishing from civil law • Scope • Sources • Application in the U. S. Comments or questions before the break? §