Sharia, Part 3 of 3
The picture that accompanies this article is a billboard put up by the United American Committee. An internet search for that organization was not successful so the sponsors of the billboard might have wanted to remain anonymous. Thanks and a hat tip to Matt57, Public domain, via Wikimedia Commons.
As I mention in my manuscript, Muslim Mechanics, the sole purpose of the Muslim religion is to establish Sharia or Islamic law. In Part 1, I showed that while only ten percent of the Qur'an's content are laws, it is the principal source of sharia since it came directly from God. The secondary source of sharia are laws that come from the sunnah, the traditions, and anecdotes that originate from the Prophet and his companions. Together, these two sources reflect about 75 percent of sharia and are considered fixed and irrefutable.
The third source of sharia is called Ijma which means a consensus of scholars. Suppose there are situations or problems that laws from the Qur'an or sunnah do not address. In that case, Muslim society requires such a rulemaking power to meet the practical issues for the implementation of sharia. The word "consensus" in this context means an agreement of most authoritative scholars or jurists. It would be like a decision by our Supreme Court, where it requires a majority of the judges to decide the fate of legal cases.
The fourth most important source of sharia is reasoning by analogy or qiyas. A metaphor in this context means to compare one case with another. The law used for one can fit the other if the instances are similar enough. To use qiyas for similar issues, the reason for the Islamic rule must be apparent. For example, because the Qur'an clearly explains the idea that alcohol consumption is restricted (since it will make the user lose control over his actions), an analogy can be drawn with drugs that induce the same effect. But simply because the Qur'an does not explicitly point out the explanation as to why pork is prohibited, Muslims cannot rationalize banning another meat product with a similar cholesterol level, for example. When Muhammad's companions asked him to deal with challenging issues relevant to the new Muslim community, he applied qiyas. After Muhammad's death, the companions used qiyas to set regulations and codes to govern their society.
Masalih al-Mursala, which means "in the public good" or "the public interest," was the fifth source of sharia. It was employed in developing sharia laws during the immediate period after Muhammad's death. In cases where there was no direct text in the Qur'an or sunna, seventh-century Muslim society based its rules on what was in the best public interest. Since public affairs change over time, sharia laws developed in this manner have not been kept up.
A sixth source was ijtihad, or the application of critical personal reasoning in interpreting Islamic law. Before there was much hadith or case law to fall back on during Islam's early days, ijtihad was commonly used. Reportedly, the Prophet himself encouraged the permissibility of deducing secondary rulings through critical thinking. Critical thinking, in other words, presupposes that a Muslim jurist does not invent rules but assists norms and principles that are already there to become evident, albeit in a concealed or gnomic form, in sacred texts.
By the turn of the ninth century, independent reasoning and consensus-based doctrines led to the growth of a sizeable corpus of rulings and precedents. However, most scholars, generally representing the Sunni tradition, claimed that the leading legal schools of thought had resolved all the critical questions from this point onwards. Hence, the personal interpretation of Islamic law was no longer necessary. This policy finally assumed an official character, and Islamist jurists decided to "close the door" for the exercise of ijtihad. Consequently, many Islamic jurists today claim that the lack of critical thinking in their society has caused Islamic legal, scientific, and political achievements to fall behind Western leadership.
Sources three through six are not irrefutable. They can be debated and changed with different outcomes in different countries. These laws are considered manufactured and not on the level with laws coming from the Qur'an or the sunnah.
Frequently, Muslims skip the state and local court systems in favor of sectarian courts. Litigants can use doctrinal courts to handle inheritance, business, and matrimonial disputes sorted out by Islamic scholars, who base their decisions on theistic principles. Consider that sharia law allows a Muslim man to have four wives. The man may indeed go through the process of arranging marriage contracts with various women. Still, he cannot go through civil laws or officially registering these marriages in the United States as he would be charged with bigamy. However, the women involved in such cases know they are married, and under sharia, are allowed certain rights regarding inheritance and upkeep. Under sharia, even in the United States, the Muslim community protects women just as they would in a Muslim country.
Sharia Law in America?
Not likely, but not for the reasons one would expect. The reason sharia law is not allowable in the United States is the Establishment Clause in our Constitution. The Establishment Clause is in the First Amendment, and, along with this, the Amendment's Free Exercise Clause forms the constitutional right of freedom of religion. The part of the Establishment Clause that we are interested in prohibits Congress from preferring or elevating one religion over another. Thus, if any part of sharia law were allowed, it would be at the disadvantage of Catholic canon law, Jewish halakha, or even Hindu or Buddha dharma. The State laws that are passed restricting sharia are unnecessary, and Muslims perceive them as discriminatory.
There are a few ways that all religious adherents can informally utilize religious laws without going through civil courts in the United States. Frequently, litigants can petition a course for arbitration. Muslims, Christians, Jews, and other religious groups, according to the 1925 Federal Arbitration Act, can use ecclesiastical tribunals to arbitrate conflicts, and "state and local courts give the judgments that result in the force of law." The arbitration can and frequently does use religious practices to reach a consensus among the parties.