Jadaliyya (J): What made you write this book?
John Esposito (JE) and Natana DeLong-Bas (NDB): We have been working together on issues related to women and gender and Islamic law for twenty years. We felt that we had something to contribute to public conversations and concerns about shari‘a and Islamic law in the news and policy circles.
Most of the stories and discussions in the news and hyped by Republican presidential candidates like Newt Gingrich and Rick Santorum, as well as Islamophobic websites like Jihad Watch, generate fear—fear of “shari‘a creep,” fear that Muslims want to overthrow Western democracies and implement or impose Islamic law as the law of the land, and fear that draconian punishments, such as amputations and death by stoning, are an inherent and central part of Muslim belief and practice.
Our goal in this book is to counter some of that fear by providing factual information—an understanding of what shari‘a is and is not, how Islamic law works and has developed in many different contexts and ways over time and space, what Muslims around the world really think about shari‘a and Islamic law, and what they mean when they talk about shari‘a. At the same time, we also talk about where Western fear comes from, areas of concern in the Muslim world with respect to freedom, democracy and human rights, and what Muslims around the world are doing to reclaim and reform their faith.
J: What particular topics, issues, and literatures does the book address?
JE and NDB: We look at both historical and contemporary implementations of Islamic law and understandings of shari‘a, organized by theme. Our themes include worship and community life; women, gender, and the family; government, law, and order; freedom and human rights; war, peace, and the common good; criminal law and justice; Islamic finance; and science, bioethics, and human life. We discuss how the broad values of shari‘a, such as protection of life, property, and freedom of religion and conscience, are relevant to each of these topics and then compare and contrast that with realities on the ground today. Most importantly, we distinguish between shari‘a as eternal values, principles, and objectives, and their interpretation and application in jurisprudence/Islamic law, which is supposed to change as the context changes so that the values of shari‘a are upheld. The book is as much for Muslims trying to understand their own faith and history as it is for Westerners trying to understand Islam.
J: How does this book connect to and/or depart from your previous work?
JE and NDB: This book brings our work together full circle. Our first book together was the 2001 revised edition of John’s first book on Women in Muslim Family Law. It seemed fitting to publish another that expands beyond issues related to women to address topics ranging from politics and governance to the environment and biomedical technology. In both cases, the point is to highlight both continuity with the past and change over time and spaces to meet the current needs of Muslim communities.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
JE and NDB: Shariah: What Everyone Needs to Know will be of interest to scholars, policymakers, media, and the general public. There are daily news and social media stories about shari‘a or Islamic law, many involving the actions of religious extremists and others by anti-immigrant and anti-Muslim sources that are deliberately sensationalist. This book was written as a one-stop place where basic questions are answered and information about specific topics can be found. We hope that it will serve as an antidote to the near hysteria that exists about shari‘a and the “Muslim threat.” Being Muslim and being American are not incompatible. Islam and American Muslims are part of the mosaic of America, religiously, socially, economically, and politically. Yet, Islamophobia and hate crimes have grown exponentially and threaten Muslim civil liberties and the very principles and values of our country.
J: What other projects are you working on now?
JE: I have co-authored Islamophobia & Radicalization, co-edited Islam and Politics around the World and Key Islamic Political Thinkers, and I am writing Among the Believers, a Journey in Muslim-West Relations. I am also directing a major research project and website, The Bridge: Protecting Pluralism—Ending Islamophobia, which has more than a million followers.
NDB: I have a couple of projects I’m working on. Along with this book on shari‘a, I just published Islam: A Living Faith (Anselm, 2018), which offers a basic introduction to Muslim beliefs and practices with a thematic approach (themes include: the Five Pillars, Muhammad, the Qur’an, Sunnis and Shi‘a, jihad, Islamic law, Sufism, women and gender, and a history of Muslim-Christian relations). It was written for a Christian audience trying to understand Islam and where there are similarities and differences. I am currently working on a book that brings the Bible and the Qur’an into conversation with each other about characters common to both, such as Moses, Abraham, Jesus, and the Virgin Mary, and a book on contemporary Saudi Arabia, looking at issues related to religion in the public sphere, Islamic law, women and gender, and jihad.
Excerpt from the Book
Why Does Shariah Carry Deep Spiritual and Social Meaning for Muslims around the World?
Although many use the terms “Shariah” and “Islamic law” interchangeably, they are not the same thing. Shariah is not a formal legal system. It refers to God’s law, sacred and unchangeable principles and values revealed in the Quran and the example (Sunnah) of Muhammad. Islamic law (fiqh) is the Muslim interpretation of those Shariah principles, the development of a vast body of laws or legal systems by jurists. While Shariah principles do not change, Islamic law is the product of human interpretations of Shariah in historical and social contexts and therefore can change in response to new challenges and circumstances.
A great deal of misinterpretation occurs when various actors hijack the term Shariah. Some associate Shariah’s divine principles and religious authority to enhance their own agendas and garner support for harsh punishments and restrictions of human rights. Others, like Al Qaeda and ISIS, use their twisted interpretation of Shariah to enlist new recruits for terrorist actions protesting Western intervention as well as to justify their violent actions. Still others use the word to express the desire for laws that ensure justice and protection. Therefore, although the terms Shariah and Islamic law are often used interchangeably, they are not the same thing. The distinction between divine law (Shariah) and its human interpretation, application, and development (Islamic law) is important to keep in mind throughout this book.
Today, Muslim reformers and scholars are giving great attention to identifying what portions of the law are Shariah and therefore sacrosanct and unchangeable and what are human interpretations (fiqh) that are subject to revision. In the face of rapid, worldwide change, debates increasingly swirl around the necessity of reforming and modernizing Islamic law while preserving Shariah values that reflect the common good (maslahah).
The meaning of Shariah, as well as the origin, development, and reform of Islamic laws through the centuries will be covered in the answers and chapters that follow. These answers address widespread misunderstandings about Islamic law in the West as well as the need for Islamic legal reforms required by the pressing political, social, and economic challenges in the Muslim world.
Is There a Need to Protect American Law from the Infiltration of Shariah?
The United States Constitution already protects against infiltration by foreign law and ensures that domestic law takes precedence over religious and foreign law. The First Amendment to the Constitution protects freedom of religion at the same time that it prohibits courts from adopting any religious code as the law of the land. There is also a precedent in American courts that foreign law is used only when its application does not violate public policy. There is therefore no possibility of Shariah becoming the law of the United States, just as there is no possibility of Jewish or Roman Catholic canon law becoming the law of the United States. In the past thirty-five years, only seven cases have come to court in which some “foreign law” (not necessarily Shariah) was honored. In another thirteen cases where Shariah law principles were introduced, they were all rejected either on trial or on appeal.
The American Bar Association has opposed as unnecessary any legislation that enacts bans on foreign or Shariah, given that safeguards against foreign law infiltrating American federal and state law already exist and protect against rules that are contrary to American foreign policy, including discrimination on the basis of gender or religion. The majority of cases involving foreign law or Shariah that have been brought to American courts have focused on contract agreement, interpreting contracts that cite foreign or religious law. Muslim Americans who want to use Shariah are not asking the American legal system to adopt Islamic rules of conduct, penal or otherwise, but rather to look at the norms to which they have already agreed to be bound in a family or business agreement.
What Are Muslims Asking for When They Call for Shariah?
While Shariah serves as a moral compass, the nature of its implementation means different things to different people. Just as there are those who are looking for full implementation of classical Islamic law and its punishments, so also there are others who want a more restricted approach— for example, giving Shariah jurisdiction in family matters but not criminal justice. Still others call for a more value-based and holistic approach to Shariah that looks at the common good (maslahah) and not punishment only. Some just want to be sure that no constitutional law violates Shariah principles and/ or that the head of state is Muslim, while others see Shariah as a path to empowerment, rights, and the strengthening of families.
The Pew Research Center Poll found that the most critical factor in determining a population’s relative support for Shariah seems to be the relationship between Islam and the constitutions or basic laws in any given country. Support runs higher in places where the constitution or basic laws favor Islam over other religions, such as in Afghanistan (99%), Iraq (91%), the Palestinian territories (89%), Malaysia (86%), Pakistan (84%), Morocco (83%), and Bangladesh (82%). In addition, support for Shariah in family matters was highest where religious courts were already in place. Ranging from a high of 94 percent in Egypt to a low of 66 percent in Indonesia, at least half of Muslims living in countries with religious courts said they believed that religious judges should decide family and property disputes. By contrast, in countries where Islam is not legally favored, one-third or fewer supported Shariah as the official law of the land. Furthermore, in countries where secular courts oversee family matters, fewer than half said they believed religious judges should decide on family and property disputes, ranging from a high of 44 percent in Kyrgyzstan to a low of 6 percent in Bosnia- Herzegovina.
The Pew report also found differences of opinion as to which specific aspects of Shariah Muslims wanted to see implemented. Most were generally supportive of implementing Shariah in the domestic sphere, such as for settling family or property disputes, but they were far less supportive of severe punishments for crimes. Support for application of Shariah in the domestic sphere was highest in Southeast Asia (84%), South Asia (78%), MENA (78%), and Central Asia (62%). Those least in favor were in Southern-Eastern Europe (41%).
With respect to the question of what implementation of Shariah would mean for non-Muslims, the majority of those polled— 64 percent in Southern-Eastern Europe, 60 percent in South Asia, 59 percent in Central Asia, 55 percent in Southeast Asia, and 51 percent in the MENA region— said that Shariah should only apply to Muslims and that non- Muslims should be free to practice their own religion. For example, in Pakistan although 84 percent of those polled favored implementation of Shariah as official law, fully 96 percent said that non-Muslims should be free to practice their religion— and that this was a good thing. Of the twenty-one countries surveyed, in only five— Egypt (74%), Kyrgyzstan (62%), Afghanistan (61%), Jordan (58%), and Indonesia (50%)— did a majority think that Shariah should be applicable to everyone.
What these statistics make clear is that while majorities wish to see Shariah implemented, there is no clear consensus about what Shariah in the public sphere should look like. Moreover, opinions range considerably by country and by issue, making it difficult to assert any blanket statement about “Muslim opinions” or what is specifically meant when Muslims indicate support for Shariah.
John L. Esposito and Natana J. DeLong-Bas, Shariah: What Everyone Needs to Know (New York: Oxford University Press, 2018).