Ward 1

Implementing Islamic Law:

Sharia in Contemporary Issues and Trends

University of Wyoming Law School

Sept. 21 2009, 7 pm
Law Week Opening Lecture

Seth Ward
UW Religious Studies
Abstract
The first part of this talk reviews “foundational” aspects of Sharia (Islamic Law): briefly defining and narrating the scope
and history of the development of Sharia from the early days through the development of the standard “schools” of Law.
This review will note changes in Sharia practices in modern times, including the cancellation of Sharia courts in some
places, and the tremendous impact of the Islamic Revolution in Iran, which marked its 30th anniversary this year. Then the
talk will discuss some practical issues in implementing specific Sharia considerations, such as this year’s apparent success
in avoiding the last year’s acrimony of Ramadan in Greeley, prisoner requests, training to respect Sharia and other issues
of this nature. Many of these broadly relate not only to specific considerations but to broad question s of “implementing
Sharia as a whole.” Some illustrations can be drawn from my modest experience as an expert witness for religious civil
rights cases. I am not a lawyer, so I must give a perhaps lawyerly caveat that certain types of legal comments are
necessarily beyond the scope of my professional expertise. Nevertheless it has been clear to me that the lawyers I have
worked with sometimes need to distinguish more carefully between discourse about implementation of religious law, and
claims of religious civil rights in US law. This brings us to the very broad issues raised in areas where the implementation
of Sharia is a fact or at least supposedly a fact; and by the desire of many Muslims where this is not so to implement
Sharia jurisdiction. In some cases this is sought only for limited issues, such as marriages, and resolving divorces and
civil disputes in a Sharia court. In some cases however, a far broader implementation is sought. Sometimes the concerns
are religious or traditional, but in others the attempt to implement Sharia reflects political concerns—opposition to
governments thought to be illegitimate or tyrannical—far more than considerations we usually consider to be religious.
The talk will conclude with a discussion of some of the recent literature, such as Noah Feldman’s book on the fall and rise
of Islamic law, in which he describes how some Muslims see Sharia as a block against tyranny and reaction to the
excesses of late Ottoman times and the heritage of bad government, and the concerns of various strands of what are
sometimes called “Progressive Muslims” to what they believe to be excesses and abuses surrounding this issue. As
Muslim communities grow in both numbers and socio-economic involvement in the United States, issues surrounding the
implementation of Islamic Law will continue to grow in relevance to the teaching and practice of law in this country.1

1
This lecture was presented in September 2009, and time references refer to this date. It has not been possible to standardize
all romanizations of Arabic terms, nor has the lecture been substantively updated since. Most references are given as inline
notes rather than footnotes; most well-known works are given only brief-format references. A powerpoint based on this lecture
includes some additional comments added later, based on surveys of Muslim attitudes towards implementation of Islamic law
in Egypt, Turkey and Iran and other materials. http://uwyo.edu/sward/Powerpoints/Implementing Islamic Law.pps, with
narration: http://uwyo.edu/sward/Powerpoints/Implementing Islamic Law-narrated.pptx
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Implementing Islamic Law:
Sharia in Contemporary Issues and Trends
Seth Ward
Introduction
Bismi llah al-rahman al-rahim. Subhanak allah rabbina malik al-alimin.
In the name of God the Merciful and Compassionate; Praise be to You., O God, Our Lord and Universal King.

Most Muslims would begin a lecture on Islamic law with the “In the Name of God” and continue with a few lines
of blessing; this is an occasion to thank as well Kerry Luck-Torry for organizing this lecture, and the amazing
support and enthusiasm of colleagues, students, former students and friends.

In honor of UW Law Week, and in honor of Id—the Muslim festival marking the end of Ramadan—this talk will
review the history of Sharia (Islamic law) and some of the salient issues regarding implementing Islamic law in the
early 21st century. But first I will review, perhaps in too great detail, the foundational history or Sharia—Islamic
law—and some of the steps of modernization.

“Foundational” aspects of Sharia (Islamic Law):

According to Islamic tradition, the Qur’ān was revealed through Muhammad over a period of 22 years. The
revelations started about 610 CE near his hometown of Mecca, half way between Palestine and Yemen, and
continued until close to his death in 632 in Medina, a town originally known as Yathrib, about 210 miles north. The
early revelations emphasized monotheism above all else, and had stories of ancient prophets, equity to the poor and
disenfranchised, repentance and the coming day of judgment. These passages are highly poetic, and even when they
recommend for or against various practices, such as prayer or alms, they do not give the kind of details needed to
construct specific practices. This befits Muhammad’s role as the leader of a fairly small band of followers. Indeed,
after 619 (according to traditional historiography), his status in Mecca deteriorated. That year his first wife died,
and his uncle as well—as an orphan, his status had been guaranteed by his uncle up to that point.

Muhammad’s status was quite different in Medina: Islamic historiography depicts him as going there not only
because of his deteriorating situation in Mecca but because he had been invited to serve as an arbiter between
bickering tribes. In Medina, then, Muhammad’s role was as governor of a growing oasis, and over the ten years he
lived there, a nascent Islamic state. His decisions at that time, and the Qur’ān passages said to have been revealed
then, reflect the need for more explicit directions for political, civil and ritual matters. Islamic historiography and
Qur’an commentary preserve numerous traditions about the circumstances in which a verse was revealed.

Perhaps we should be wary of all these reports, as the traditions that have come down to us may have been selected
based on the way Islamic law developed. Nevertheless, the Qur’ān passages and traditions suggest that for the most
part, rulings continued as they had been except when it was felt that the new, Islamic situation called for
modification or clarification. In some cases this would result in a new revelation, or an executive decision by
Muhammad. It would seem that in the early days law continued to follow the traditional Arab practice, except as
modified by the Qur’ān, by Muhammad’s pronouncements, or by noting the practices of those who were closest to
Muhammad. Sometimes the practices of Christians and Jews was considered emblematic for the new faith,
although sometimes their practices were adapted for the Islamic environment. Some judges were praised for their
ability to rule fairly and equitably, and their opinions also entered the battery of traditional reports.

There was less need for a systematic understanding about how to solve legal problems during the early decades
after Muhammad’s death, but the growing Islamic empire soon changed that. Already within the first years, it
became clear that the Islamic State would need a system for appointing judges and governors; an Islamic calendar
was imposed, traditionally in the Islamic year 16 (corresponding with 637 CE); the innovation was that a date in the
future could be unambiguously described as, say, Ramadan of the year 20, and this would be the same throughout
the growing Empire, so that governors would know when to impose various regulations or collect various taxes. A
standardized text of the Qur’an was also needed so that disputes would not arise about recitation of the Qur’an.
While variations were known for centuries, Islamic historiography insists that Uthman codified an official Qur’ānic
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text, probably around the year 651-2 CE. It also became clear that it would be helpful to know what
pronouncements Muhammad had made on various legal issues. By the mid to late 7th century, some Muslims
devoted their energy to collecting statements from those who had known Muhammad, about what he had said or
done, or about practices which took place in his presence. These reports came to be called “hadith” and they were
part of a larger endeavor of recollecting the practice of early Muslims, statements about the meaning of various
Qur’an verses, and acts of the Caliphs and so forth, the beginning of Islamic historiography, Qur’an commentary,
law and so forth.

Under the Umayyad dynasty, the first to emerge in Islam, the Islamic state stretched from the Atlantic to central
Asia and would soon reach as far as the Pyrenees and the Indus. Its early days, 656-685 were marked by civil wars,
especially ongoing struggles with the descendants of Muhammad through his son in law Ali, and the emergence of
a number of views about law, government, and leadership. Many had ultimately to do with religion and power:
whether Islam would be guided by the descendants of Muhammad through Ali, or were those who actually held
power necessarily legitimate. Could anyone with significant sins rule? Who is a Muslim, and what role is played by
belief, practice, or self-description in this determination?

The presentation of an Islamic Empire that would rival that of the Byzantine Christian empire was one of the goals
of The Umayyad Caliph Abd al-Malik (ruled 685-705). He reformed the administration and insisted it be in Arabic;
he minted Islamic coins, built the Dome of the Rock to symbolize, among other things, the emergence of a great
Islamic state and religion rivaling the Byzantine Christian one. During this period, we have the beginnings of the
individual ways of looking at Islamic law. Historically, the centers in Medina and in Iraq were the most important;
each had different ways of balancing competing ideas about the sources of law.

The different “schools” of law emerged in Abbasid times, which started in the 750s. The “schools” are sometimes
called “rites” in that they differ on such things as the timing and postures of prayer, details of purification,
requirements for Ramadan and so forth, but the term “law school” may be appropriate in that they also differ about
legal principles used for what is sometimes called ijtihad: the attempt of a jurist to derive authoritative practice, as
well as in points of positive law, from Islamic sources.

The Iraqi school eventually came to be associated with Abu Hanifa (d. 767), and gave precedence to Iraqi practice
and the use of logical deduction. The Medinan traditions came to be codified in the important work of Malik b.Anas
(d. 795), a collection of hadith together with Malik’s opinion about the legal ramifications of those hadiths.

Al-Shāfi‘ī (d. 819) is usually credited with deriving a set of four principles which came to shape all further
discussions: the main sources for Islamic practice are the 1. Qur’an, 2. h
adīth—literally “reports” (in modern
Arabic the word is often used for “conversation”—but this source of law is limited to reports about what
Muhammad said or did, or what was done in his presence. 3. Qiyas—a limited set of legal principles for reasoning,
usually translated “analogy,” and 4. ijma’ “consensus. This might as well be called the two sources of Islamic law,
as Shafi’i’s achievement was that Qur’an and the Hadith of Muhammad became most important, and concepts such
as legal analogy, precedents of early Muslims, non-Muslim legal reasoning (e.g. Christians and Jews), creative
interpretation by jurists (ijtihad) and other principles were de-emphasized. In practice, Qiyas “analogy” tended to
include principles with technical rules, such as istihsan, legal presumption that a situation is considered to have
remained unchanged from early days unless there is binding testimony to the contrary; one of the ramifications is
that someone in possession of land or an object would be considered to have been its ancient owner without
contrary evidence. Ijma “consensus” was based on a hadith “My community would never be united in error” – but
different scholars defined consensus in different ways: reports about all the Muslims of the early generation (those
who knew Muhammad), or of all the important law schools, or perhaps universal practice in the time of the jurist
needing to apply the principle. In practice this too served to limit Islamic innovation: the clearest sense was that the
only time any practice could be considered a source of Islamic law if it was not traced to Muhammad, would be if it
was the practice of all the Muslims.

Ahmad ibn Hanbal (d. 855) emphasized the role of hadith and deemphasized the role of legal reasoning even
further. Although it is simplistic to put it this way, his system favors the use of hadith statements that others might
consider weak over legal reasoning that others might consider to be strong. Perhaps more important, the
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ramification of these developments was that Muhammad’s practice came to be considered an ultimate source of all
law—not simply a source to appeal to when the law was otherwise unknown. In other words, one might say,
revealed law came through text—the Qur’an—and through example—the sunna “practice” of Muhammad. It is this
conclusion which gives “sunni” Islam its name.

Clearly there was a need for collections of hadith that were considered to be completely secure and authoritative.
As you may imagine, there were plenty of scurrilous hadiths around, and, given the emphasis on hadiths associated
with Muhammad, there were statements that may originally have come from later sources that were now traced
back to Muhammad. These emerged in the next generation: Al-Bukhārī (d. 870) and Muslim b. al-Hajjāj (875). Al-
Bukhārī’s legal thought is especially clear: his chapter headings make it clear that his purpose was not only to
collect only hadith he considered to be most authoritative, but also to organize it according to the legal rulings the
hadith supported, whether they be about details of prayer or fasting, or about slaves or financial transactions. By the
early tenth century, four more collections of hadith emerged in the Sunni world that are considered to be nearly as
authoritative as those of Bukhārī and Muslim.

Shia Islam emphasized the individual leadership of Imams: descendants of Muhammad through Ali. Up to the time
of al-Bukhari and Muslim, there was active leadership by the Imam, at least for what is probably the most important
Shia traditions for our purposes: “12-er” shia—this is the one represented today by Iran and the Shi’is in Iran and
the Persian Gulf. According to Shi’a teaching the 12th Imam disappeared in 874 but was represented by deputies
until 941. By this time, a literature of canonic hadith had begun to emerge, notably including a work by al-Kulayni,
who also died in 874. Unlike the Sunni hadith, these materials also include traditions associated with the Shi’i
Imams. Shi’as also used “logic” although they stress that this only determines the true meaning of the other sources,
rather than determining that a certain circumstance is analagous to one that is well known. So the “4 principles: of
Shia jurisprudence are Quran, hadith of Muhammad, traditions of the Imams, and either aql “intellect” or mantiq
“logic.”

The final step I will describe this evening in terms of the classical development of Islamic Law is the emergence of
works in which Qur’an, hadith, qiyas and ijma were balanced in order to project practical rulings. One example is
“fatwas” – considered legal opinions weighing the various principles at stake in a particular situation. For the most
part fatwas were not considered to be definitive rulings but advice to the local judge to help him reach a verdict. So
too, we see the emergence of comprehensive law codes which give specific rulings on all possible issues; and
compendia which record the various rulings of major scholars on all these issues, sometimes but not always
advising us what the author thinks is the best practice.

Much of this literature recognizes that there are all sorts of circumstances that might affect the status of a particular
act—the religion, age, gender, status, or health of the agent, the time of day or year, and many other considerations.
The goal was to be able to determine for any potential actor whether any potential act was lawful or not, and wether
it was neutral, prohibited or required, recommended or to be avoided.

Islamic law was administered by local judges, usually overseen by “Chief Judges”- and classic Islamic empires
recognized the diversity in legal practice. The Fatimids, who ruled Egypt in the 10-12th centuries, had a chief judge
for Shafi’i and Hanafi, 12-er and their own 7-er Shiite practice. The Mamluks who ruled Egypt and Syria 13th-early
16th century had one representative each from the major Sunni schools: Shafi’i, Hanafi, Maliki and Hanbali.

Already in classic times, the authority of the Sharia judge was constrained by the needs of the empire. The Ruler
appointed a market inspector (muhtasib) and police (shurta) and in practice Islamic rules affecting public order
came under the supervision of imperial needs rather than strictly Islamic ones. The degree to which “al-Ahkam al-
Sultaniyya” – The Government Laws” to use the phrase of Al-Mawardi—came under Islamic jurisdiction—was a
source of contentious debate.

Islamic law recognized a number of categories with respect to punishment. For some offences—notably theft,
fornication, false accusation of fornication, the punishment is determined by Sharia. Strict rules made these hard to
enforce in classic systems. Some crimes are punishable by retaliation, retribution or blood money. Most situations,
however, were left to the discretion of the judge, who could impose floggings or imprison.
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Changes in Sharia practices in modern times

This system survived roughly into the nineteenth century. Shafi’i law was predominant in the Middle East until the
rise of the Ottomans and still predominates in South-east Asian Islam; Maliki law in the Islami West. The Ottomans
preferred Hanafi law; so did the Mughals and later the British in South Asia. In the 16th century, the Safavis
imposed 12-er Shia law in Persia, which had not been predominantly shia before that time.

Cracks appeared in the system in the 19th century. Among the causes were reforms put into place by leaders in the
wake of French and British incursions into the Mediterranean: in Egypt Muhammad Ali emphasized modern
education, reformed various aspects of the law, and removed some of the traditional sources of power.

The Ottomans also attempted to centralize power in the Sultanate and liberated the non-Muslims: instead of the
traditional Maliki, Shafii, Hanbali and Hanafi judges, they now had Muslim, Greek Orthodox, Armenian, and
Jewish chiefs. These reforms, done in the period of Tanzimat (1839-1859), also reshaped property law, a reform
which had lasting ramifications in the history of the State of Israel. In 1876 they had a constitution which
incorporated many aspects of the French Civil Code. Although the constitution was quickly suspended, the
Ottoman subjects found that Islamic law was largely relegated only to personal status matters: marriage, divorce,
certain types of property and inheritance case and a limited number of other matters.

In British Indian possessions, the colonial powers promoted Islamic law for Muslims since 1772. But this was done
within a system of courts and procedure which mirrored British practice, and rather than using Islamic notions
about how to determine legal practice in cases in which there was no decisive law, the British promoted the notion
of “justice, equity and good conscience” 2 derived from Roman Law.3 By the 1880s at least this meant British
Common Law—although this was largely moot, because between 1843 and 1875, most Islamic law had been
replaced by British rules prohibiting slavery, determining rules of evidence, and much of civil and criminal law.
Much content was still “Islamic law” but much of the teaching and practice of “Anglo-Muhammadan Law” had
come to follow British traditional law-school approaches more than the traditional way in which Muslims had
applied the law.

Thus by the early twentieth century, Islamic Law was really not fully in practice anywhere on an official basis,
except in the form of government policies on personal status matters. By then—as now—even in places where there
are Shari’a courts, whether with broad or circumscribed powers, they are generally subject to appointment by the
government and operate within frameworks determined by those governments.

One important variation from the classic situation is perhaps represented best by the Egyptian experience.
Muhammad Abduh (1849-1905), Rector of Al-Azhar, the most prominent Islamic university in Cairo, and head of
the Islamic court system in Cairo, proposed that Muslims look to the earliest generation of Muslims, the followers
of Muhammad, for inspiration and legal renewal. After all, they created a vibrant society, dedicated to interpreting
Qur’an and hadith for social and legal reform. His view could be considered liberal, desiring to make Sharia
relevant to the problems of his day. The Muslim Brotherhood, established in the 1920s among many who were
inspired by Abduh and his student Rashid Rida (1865-1935), promoted an Islamic answer to the ills of an
ineffective government, with social services and self-help. It could be argued that their legal tradition led to a
groundbreaking work by Sayyid Sabiq (1915-2000), promoting a Sharia that did not follow any one of the schools
but mixed them together—and a book of fiqh, Islamic jurisprudence, that was easy to read and understand. The
book was widely studied—and excoriated as engaging in innovations and not following the traditional law schools.

In this country, Fazlur Rahman (1919-1988) is recognized as one of the most important Islamic jurists, a tireless
worker for Islamic studies at the University of Chicago, and a fair-minded approach to Islamic jurisprudence for
our modern times. In his seminal work on the theory of Islamic law, Islam and Modernity ( Chicago, 1982) he
argues that “Qur’ānic theology and legal teachings … gradually unfolded themselves in the political arena.. ., in the
light of history, and against a social–historical background.” (p. 5). Rather than relying on the specific dictates of
2
http://www.wluml.org/english/pubsfulltxt.shtml?cmd[87]=i-87-2980#_ftnref17
3
Compare the Israel Declaration of Independence and resulting Israeli law about Moreshet Yisrael!
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classic jurisprudence, he calls for understanding the overall mission of the Qur’an in the context of the problems in
the time of Muhammad. One important way of reforming Islam is to examine the asbab al-nuzul “sources for
revelation” of various Qur’anic verses to see how the respond to issues of Muhammad’s times—but to do so with
the entire message in mind. He cites a striking passage from the Maliki jurist al-Shatibi (d. 1388) about the
necessity of legislating in the light of the entirety of the value system of the Qur’an; and indicts the people of
Muhammad’s time as “highly custom-bound, and a set pattern of behavior (called Sunna) acquired sanctity for
them.” (p. 17). He was critical of Muslims of his generation who were similarly committed to uncritical acceptance
of their own understanding of sunna; indeed, he critiques this approach by contrasting their lack of support for
slavery, an institution sustained by the Qur’an, with their arguments which seem counter to the entire tenor of the
Qur’an when they cite verses about women and zakat to promote a strongly patriarchal society and differentials in
wealth. (see p. 19). But he is not in favor of rejecting the legal heritage: he is against rejecting “historic Islam:” “No
community can annul its past and hope to create a future being for itself—as that community.” (146). But he calls
for this in the form of deep education and study, and in the form of an “outburst that literally re-forms orthodoxy”
(ibid).

Although he was probably more conservative than some, Fazlur Rahman (and older scholars such as Abduh),
reflect tendencies in legal interpretation in US law, in which the purpose of the original framers of the law is given
great weight, rather than the applying what lawyers call “strict constructionism.” But if Fazlur Rahman, writing in
the 1980s, was hoping that an explosion in critical study of Islamic texts would lead to a reform in Islamic law, he
was only partially right: it seems that the deep study he called for has occurred, but typically the outburst that has
re-formed Islamic Orthodoxy has emphasized the custom-bound traditional behaviors rather than re-examined
contemporary issues in the light of the principles of equity and spirituality espoused by the Qur’an. In the words of
Khaled Aboul Fadl, the result has been that “virtually every Muslim with a modest knowledge of the Qur’an and
the traditions of the Prophet was suddenly considered qualified to speak of the Islamic tradition and Shari’a law—
even Muslims unfamiliar with the precedents and accomplishments of past generations. Often these self-proclaimed
experts were engineers, medical doctors, and physical scientists. In fact, the leaders of most Islamic Movements,
such as the Muslim Brotherhood and al-Qa’ida, have been engineers or medical doctors.(The Great Theft: wrestling
Islam from the extremists: 39). Aboul Fadl sees this as a dichotomy between moderation and puritanism, and
decries that fact that the puritans seem to be winning.

The Iranian revolution, 30 years old this year, brought to the fore the notion of a society based entirely on Sharia. In
some sense, it was not much different than the constitutional systems of countries which provide that no laws can
be inconsistent with Islam, or countries who assert that Islam is the source of all their legislation. The prominence
of the puritans seems to reflect, to my mind, the visibility of the Iranian model, combined with factors such as a
feeling that this is a bastion against the west, the explosion in breadth of Islamic teaching without depth of analysis,
the modern ability to pronounce on matters of Islamic law without a firm anchor in traditional studies, and the
convergence—not of various Qur’anic models (as suggested by Fazlur Rahman) but of various groups of puritans
and extremists.

Some practical issues in implementing specific Sharia considerations

While various attitudes towards reform are important in considering political excess often associated with Sharia,
neither Aboul Fadl, not Fazlur Rahman, nor any other competent Islamic leader is calling for the wholesale
abandonment of the historic practices of Islamic law. In consequence, there are many practical ramifications.

1. financial considerations. Sharia prohibits ribā “taking interest.” There are various ways in which this was
circumvented in classic times; this category of Islamic law was usually called hiyal – probably best
translated as “legal fictions” but the actual meaning of the Islamic word is “tricks.” These are legal devices
in which the lender can contract to receive what amounts to a guaranteed rate of return on a loan, forbidden
in Islamic law. There are reports that Islamic banking, mortgages, credit cards, and other financial
instruments are growing in this country and in the world economy. In my humble opinion, at least part of
this is motivated by the desire to use financial institutions with Muslim involvement: in other words, the
issue is not merely whether the transaction avoids elements contrary to sharia, but whether it is overseen by
Muslims.
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2. Prisoner situations. I know that this is an issue discussed in this law school and I am not sure I have much
to add. I have had a few cases in which I have been asked to be an expert witness. It seems to me that there
are three headings for most of the complaints: a. dietary, b. prayer and ritual, and c. spiritual or religious
guidance.

a. All parties seem to agree that inmates are entitled to food service that is religiously certified and meets nutritional
requirements, and that this food service must meet certain ritual needs for their registered religion, through the
provision of special foods or special timing of meals. In this case, food service must provide halal certification, and
special timing and contents in meals for Ramadan, and other considerations.

b. All parties seem to agree that inmates have a basic right to prayer and other religious rituals including fasting.
There are at least two significant problems faced. First, in many cases, assumptions about religious activity based
on mainstream Protestant practice often are inappropriate for Muslims or indeed for most inmates who are religious
but who are not mainstream Protestants; I found that—independent of questions as to whether there exist
compelling needs to prevent gathering for prayer, prison officials seemed uncomfortable with accepting that prayer,
for Muslims, involves notions of group prayer with fixed texts and movements, at fixed times. Second,
administrative regulations and actions frequently limit or place roadblocks in the implementation of these rights,
not only when they involve group activities, but even when they involve reliance upon inmate leadership. While
restricting some actions potentially considered to be protected religious civil rights may indeed be justified by
compelling societal interest in maintaining security, many groups in our society—not only incarcerated Muslims—
feel, with much justification, that such restrictions in the name of security occur too often, and restrict rights beyond
what is justified by compelling social interest. In other words, this should be a matter for open political and legal
processes, not an arbitrary decision by the executive branch.

I should note that observing Islamic dietary considerations would be classed as one of the abadat “acts of worship”
by Islamic law; perhaps it should be subsumed in this rubric. I should also note that religious civil rights do not
extend indefinitely: I can imagine an attempt to commute a sentence to allow for making pilgrimage to Mecca on
religious civil rights grounds, arguing that this is a religious requirement that prohibits lifetime incarceration—but I
cannot imagine it will have much traction. Still, I am not a lawyer; cases such as these make their way into the court
system and determine the applicable law in our society.

c. A third group of issues has to do with access to religious guidance. In the cases I examined, it seemed to me that
provision of adequate religious guidance – both to inmates and to the corrections facility – might have obviated a
number of issues raised by the cases. I do not imagine that even the best of spiritual guidance will eliminate all
inmate complaints. In today’s society, Muslims in the Sunni world find spiritual guidance in the person of a
chaplain, but also in the traditions of Qur’an, hadith, commentaries and legal exposition alluded to earlier.

3. Human and Civil rights: In general society: Ramadan has just concluded, and there was quiet in
Greeley, Colorado, at the meat packing plant. This can be credited to a spirit of cooperation between
Muslim workers, their non-Muslim co-workers, and the company. With a spirit of cooperation, much can
be accomplished.

Training to respect sharia: I have had the honor of working with a small number of organizations to help prepare
persons involved with Muslims to meet some of the requirements of Islamic law. I am not convinced that Muslims
will always be receptive to non-Muslims determining in practice what Islamic law is (and to a certain extent that is
what transpires when schools, prisons, employers, the military or other institutions make such determinations)—but
they will be receptive to those who follow simple procedures to respect cultural and religious preferences to the
extent the law allows. These can include training with respect to Islamic ideas about modesty and diet, ritual needs
and so forth. It seems to me that in areas where there are significant Muslim populations, sensitivity to local
concerns is called for.

I am not a lawyer, so I must give a perhaps lawyerly caveat that certain types of legal comments are necessarily
beyond the scope of my professional expertise. Nevertheless it has been clear to me that the lawyers I have worked
with sometimes need to distinguish more carefully between discourse about implementation of religious law, and
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claims of religious civil rights in US law. It seems to me that it was too easy to claim that any recognition of a non-
US legal system is an implementation of Islamic law; or that somehow the Bureau of Prisons or some other entity
was following Islamic Law in certain practices. This led to rather interesting and I think unacceptable assumptions
about the ability of a US government entity to, for example, provide credible rulings on its own say-so about
Islamic dietary practices. It seems to me that very explicit language should be used, emphasizing the exercise of
religious civil rights within the US Constitution.

This brings us to the very broad issues raised in areas where the implementation of Sharia is a fact or at least
supposedly a fact; and by the desire of many Muslims where this is not so to implement Sharia jurisdiction. In some
cases this is sought only for limited issues, such as marriages, and resolving divorces and civil disputes in a Sharia
court. Such issues arose in British, Canadian and Australian “Sharia Debates.”

The Canadian case lasted from 2003 through 2005. The Islamic Institute of Civil Justice announced it wanted to
establish tribunals for such issues under Canada’s 1991 Arbitration Act which allowed any community recourse to
an alternate legal system for arbitration so long as the results were not prohibited by Canadian law. Although there
have been Jewish and Catholic tribunals of this nature, there were many in Canada who opposed Sharia courts.
Among the most articulate opponents were those, including Muslim women, who feared that these tribunals would
in practice impose a highly patriarchal view of Islamic law, with results that would be hard to reconcile with the
Canadian Charter of Rights and Freedoms. It was clear to all concerned that the tribunals would operate within the
space allowed by the Arbitration law, and would not contravene or supersede Canadian law; a former attorney
general, a woman, Marion Boyd, was appointed and her study recommended continuing such tribunals under the
act. The end result though was that these courts, and the tribunals operating under Jewish and Catholic auspices,
were discontinued. In a paper presented in May of this year, Naser Ghobadzadeh argued that Canadian
multiculturalism, and the framework of the Arbitration Act, allowed for the debate to stay focused and in the end
gave Muslim women a greater voice in the discussion and empowered representation in Canada. He contrasts the
Canadian situation with that in Australia, in which the goals sought for the Sharia court were broader, and in which
there was no framework for multiculturalism. 4

The argument there seemed to be more about whether Sharia should overcome Australian law; negative responses
did not reaffirm commitments to human rights but invited those who preferred Sharia to Australian law to leave the
country. The difference could be described as “whether sharia would provide external protection or prove an
avenue by which Muslim men can place restrictions on Muslim women” (Ghobadzadeh 13 citing Korteneg
2006:51).5 Adding to it the concern as to whether this is seen as merely a culturally sensitive way to undertake
arbitration or the first step in a broader implementation of Islamic law that is not limited to actions not unlawful
under the general legal situation—and this seems to be behind much of the discussion of the British initiative as
well and even behind some of the issue arising within the US context.

In 2008 England allowed for consenting Muslims to use such courts to resolve such matters; there is much debate
about this, not only among non-Muslims who fear the implementation of Sharia, but also among Muslims
themselves, who assert that in practice these promote long-held cultural values rather than Islamic legal strictures.
In this view, allowing recourse to Shari’a courts in Britian could in practice—given who is likely to run these
courts—result in practices that are both inconsistent with the Sharia on which they are supposed to be based, and
with British law, notably with results discriminatory to women.

Before moving from family law to a brief consideration of more general theory interpreting the dramatic growth in
Muslim support for implementing Sharia, I’d like to make a brief point about the importance of recognizing
differences between Western and Islamic presumptions about personal status and family law, and the way these are
regulated in society. Most Americans assume, for example, the existence of parallel civil and religious systems for
marriage, or that marriage is primarily a “civil status” regulated by a civil code. For that matter, most of us assume
that the marriage process is basically (and legally) the same everywhere, or that all marriages impart the same rights

4
www.cpsa-acsp.ca/papers-2009/Ghobadzadeh.pdf - study of Canadian and Australian experience. Both led to the banning of
such courts.
5
Anna C Korteweg, “The Sharia Debate in Ontario,” ISIM Review, 18 (2006), 50-51. I have not been able to view this article
in preparing this lecture.
Ward 9
and privileges and are between one man, one woman, and meant to be “until death do us part” except in rare and
very limited cases. Yet these assumptions about the very meanings of these terms can be incorrect and misleading.
In most traditionally-Muslim countries, including most successor-states to the large Islamic empires of the 16-19th
centuries—from the Western Mediterranean to the Ganges Valley--marriage and personal status are or were until
fairly recently generally regulated by religious law. The Shari’a Court registering marriage is part of the
government—and thus it is responsible in that sense to the civil authority which may have legislation limiting or
regulating such matters as polygamy, the Shia practice of temporary marriage, or provided for other concerns not
normally part of Shari’a. But if it is in that limited sense an agent of secular authorities, those same authorities have
recognized that shari’a has basic jurisdiction in these matters. And this is not the only such consideration: many
traditionally Islamic countries have entrenched Islamic law, or the Qur’an, hadith and the pronouncements of
Islamic jurists or Imams into their constitutions: thus all of civil law is supposedly based on Islamic principles or
within the guidelines set up by sharia.

Modern initiatives
Noah Feldman’s book, The Fall and Rise of Islamic law, describes how some Muslims see Sharia as a block against
tyranny and reaction to the excesses of late Ottoman times and the heritage of bad government. His argument is that
for many in the Islamic world, Sharia law represents the ideal that jurists and courts will be incorruptible and
apolitical, and counterbalance the political corruption and tyranny of so many governments in the Islamic world. He
traces this idea to a perception of what happened in the 19th century in the Ottoman world, and elsewhere in Islam,
where the Sultans were able to destroy the power of the ulema.

I am not sure I am totally convinced by Feldman’s argument as a historian or as a complete description of

contemporary concerns: there may be a degree of wishful thinking on his part. But, I find at least the main line of
presentation to be incontrovertible: Feldman asserts we need to remember that for many Muslims, the desire to
implement Sharia is not merely a way to promote outmoded patriarchal values or retain the power base of those
whose power is being threatened, whether from the inside or the outside, from new ideas or from Western powers.
It also represents the sense that there are arbitrarily determinable bounds for government and for the rule of law,
(much as Roman ideas of fairness and equity), which in these societies can be said to come from Islam, and the
hope is that they will serve as a bulwark against the tyranny so prevalent in those societies.

Why study Islamic Law?

Three reasons:
1. totally theoretical: students of US law can benefit from discussion of ideas raised by Islamic tradition about
constitutional issues, about examining the ideas of the founders, about reform or fidelity to historical
rulings, and about the extremes to which new thought can lead.
2. pragmatic practice: For lawyers practicing law in the United States, there are bound to be issues of Islamic
practice that arise. Perhaps they will concern rights of persons detained, arrested or incarcerated; perhaps
they will concern societal regulation of Islamic finance, personal status, or provision of religious services
such as Islamic diets. Perhaps the issues will arise simply in maintaining professional respect for the
religious practices and beliefs of our Muslim neighbors.
3. Perhaps the most important reason though reflects the fact this this is a a legal system seen as valid in either
symbolic or very practical terms by perhaps as many as 20-22%of the world’s people. While most of us
have developed the tools necessary to interpret how, for example, pronouncements about Catholic practice
and belief are understood by Catholics in our society, and what role such pronouncements play in the US
and around the world, most of lack any understanding at all about Sharia and how it operates. I certainly am
not arguing that American society should welcome Sharia courts, or that we should fear them. I am,
however, arguing that our legal system should be aware of the complexities of the issues raised and afford
students and practitioners ample opportunities for open discussion.

And I thank the University of Wyoming Law Week organizers for the opportunity to do just that.

Seth Ward