Sharia

History

From the 9th century until the colonization of Islamic lands by European countries in the 18th and 19th centuries, Islamic nations had instituted a separation of powers that entrusted the interpretation of sharia law to Islamic scholars. As Muslim nations gained independence in the mid-20th century, the authority to interpret sharia law was less clearly delineated between scholars and political rulers. Competing sharia models were adopted in various countries, such that Muslim governments may now be classified as secular with private [Page 1930]sharia observances, classically sharia, or blended, with both secular and sharia legal elements.

Just as the role of sharia in Islamic countries has been a matter of great debate and conflict, the immigration of Muslims into Western nations has raised questions as to the compatibility of sharia and liberal democracy. Rejecting the United Nations’ 1948 Universal Declaration of Human Rights as incompatible with sharia law, the Organisation of the Islamic Conference adopted in 1990 the Cairo Declaration on Human Rights in Islam, which stated that “all the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia.” In 2003, the European Court of Human Rights upheld the Turkish Constitutional Court's dissolution of a political party that sought to introduce sharia law by holding that “sharia was incompatible with fundamental principles of democracy.”

Following the terrorist attacks of September 11, 2001, and growing awareness of the civil strife accompanying massive influxes of Muslim immigrants into European nations such as France and England, Americans became increasingly concerned with the spread of sharia law in the United States. Sharia punishments are largely considered to be draconian—blasphemy, apostasy, and homosexuality are punishable by death, whereas other crimes warrant amputations or fogging. Americans also strongly objected to sharia's subordinated treatment of women and minority religions. Reactionary and, in some cases, extremist interpretations of sharia, including Islamist and fundamentalist movements such as the Muslim Brotherhood and Taliban, garnered widespread media attention through violence and a stated desire to impose sharia law throughout the world.

Last Resort Jurisdiction

U.S. courts have long been cognizant of sharia law, just as they have historically been aware of Jewish law and Catholic canon law. These religious laws are often at issue in civil cases involving commercial litigation, divorce, and custody proceedings. The U.S. legal system often serves as a jurisdiction of last resort in the event that religious tribunals or mediation fail to resolve an issue with both civil and secular consequences. Nevertheless, U.S. courts have generally refused to admit religious law as supplanting the civil laws of the United States. Critics of sharia law responded angrily to a 2010 New Jersey case in which a Moroccan woman's request for a restraining order against her ex-husband, after he had repeatedly assaulted and raped her, was denied following the judge's determination that the ex-husband lacked criminal intent because of his belief that under sharia law, his wife was obliged to submit to his demands. Though the decision was reversed on appeal, the threat of judges accommodating Islam by enforcing sharia law galvanized a national movement.

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