Shariah’s Black Box

[61] Warde, supra at note 4, at 33.

[62] Joseph Schacht, An Introduction to Islamic Law 1 (1982).

[63] Vogel & Hayes, supra note 18, at 23.

[64] Mervyn K. Lewis & Latifa M. Algaoud, Islamic Banking 24 (Edward Elgar ed., 2001). While the authors attempt to “tone down” this absolute statement of Shariah by suggesting that as a practical matter Shariah has in fact lived side-by-side with secular law and in some cases even incorporated it into Shariah, they honestly but almost unnoticeably add the following to their effort to soften Shariah: “The continuation of a custom of a particular place or community is allowable under Islamic law, and may in fact be assimilated into the law, as were many of the customs of the Arabs. To be permissible a custom must not be contrary to revealed injunctions, and this point remains highly controversial in some areas, for example the treatment of women.” Id. at 25. What the authors mean by “revealed injunctions” means any legal ruling of Shariah authorities where there is consensus among the authorities that the ruling is based on an explicit verse in the Qur’an or Sunna. See infra note 75 and accompanying text (discussing jurisprudential force of “consensus”). What is intriguing is that of all of the fixed unalterable laws of Shariah, the authors are concerned about the treatment of women. While many certainly argue that Shariah demeans and subordinates the Muslim woman, one might have thought that the fixed death penalty for an apostate – a Muslim who wishes to leave Islam – would have captured their concern sufficient for articulation. Apparently, it is not, in the authors’ views, “highly controversial” among the Shariah faithful.

[65] The literal meaning of Shariah is “the way” — especially to the source of water (i.e., life).

[66] See, e.g., DeLorenzo & McMillen, supra note 34, at 136-137.

[67]  Coughlin, supra note 24.

[68] See supra note 31. For a detailed discussion of the schools of jurisprudence, see id.

[69] See generally DeLorenzo, supra note 22.

[70] A typical ruling reads: “If the lease of real estate is for purely prohibited purposes, like a bar, or a church, or a nightclub, then the lease contract is prohibited and legally void because the benefit, or subject of the contract, is prohibited.” A Compendium of Legal Opinions On The Operations Of Islamic Banks 13-29 (Yusul Talal DeLorenzo ed. & trans., 2000).