Shariah Law and American State Courts: An Assessment of State Appellate Court Cases

Background

From its founding, America has debated the conflict between domestic and foreign laws.  Much of America’s identity, as a sovereign democratic republic with strong Constitutional protections from government intrusion, was forged through the rejection of foreign laws.   Now American courts are confronting increasing numbers of cases of a new foreign legal doctrine—the Islamic law known as Shariah. Authoritative, institutionalized Shariah legal doctrine is the only law in Saudi Arabia, Sudan and Iran, and it is a dominant legal institution in most other Muslim-majority countries. In many countries with increasing populations of Muslim immigrants, some Muslim groups are demanding the right to observe—and to impose on their fellow Muslims – Shariah doctrine, even when that doctrine conflicts with the federal and state constitutions and public policy.  Other Muslims come to the U.S. to escape Shariah law, and seek the protections of the secular courts and law enforcement to protect them from Shariah law.

The  Center for Security Policy provides assessments of this ongoing introduction of foreign laws into our legal system, that are opposed to our constitutional liberties, public policies and values, including institutionalized, authoritative Shariah law.  In this paper we provide a small sample of cases involving Shariah law, published from appellate state court decisions.  Some of these cases involve clear conflicts of law between Shariah doctrine and the U.S. Constitution or state public policies; some more simply provide examples of Shariah’s entry into the American legal system and civil society.

Shariah is distinctly different from other religious laws, like Jewish law and Catholic Canon, and distinctly different from other secular foreign laws.  This distinction rests in the fundamental Shariah doctrine that Islamic law must rule supreme in any jurisdiction where Muslims reside.  In the case where Muslims are few, they are permitted to comply as minimally necessary with the secular “law of the land,” but according to authoritative and still quite extant Shariah law, Muslim adherents to this legal doctrine may not accept secular or local laws as superior to or even equal to Shariah’s dictates.  This creates an explicit doctrine to introduce Shariah law and replace U.S. legal systems with Shariah for the local Muslim population.

As described in the Introduction, this study evaluated a sample of published appellate court cases which involved Shariah law in U.S. state courts.  For every published appellate case, there are innumerable cases at the trial level that are unnoticed except by the participants.  Thus, this report is truly just the “tip of the iceberg” of legal cases involving Shariah in local, state and federal courts.

What is Shariah Law?2

A rudimentary understanding of Shariah is required to grasp the implications of the Shariah relative to U.S. law, and a concise description is provided by Yerushalmi in his 2008 article on Shariah-compliant finance:

To begin, Shariah, or the “proper way,” is considered the divine will of Allah as articulated in two canonical sources.  The first is the Qur’an, which is considered the perfect expression of Allah’s will for man.  Every word is perfect and unalterable except and unless altered by some subsequent word of Allah.  While most of the Qur’an’s 6,236 verses are not considered legal text, there are 80 to 500 verses considered instructional or sources for normative law.

However, the Qur’an is only one source of Allah’s instruction for Shariah. The Hadith—stories of Mohammed’s life and behavior—are also considered a legal and binding authority for how a Muslim must live. The Hadith were collected by various authors in the early period after Mohammed’s death. Over time, Islamic legal scholars vetted the authors for trustworthiness and their Hadith for authenticity, and there is now a general consensus across all Sunni schools that there are six canonical Hadith. The legal or instructional portions of the Hadith together make up the Sunna. While the Shariah authorities from the Shi’a Muslim world also accept the Hadith as authoritative, they do not accept certain authors’ authority—a belief based mostly upon theological grounds. For all Shariah authorities, however, the Qur’an is considered the primary and direct revelation of Allah’s will, while the Sunna is the indirect expression of that will and secondary. Both sources are generally considered absolutely infallible and authoritative.

In order to divine the detailed laws, norms, and customs for a Muslim in all matters of life, the Shariah authorities over time developed schools of jurisprudence to guide their interpretations of the Qur’an and Sunna. While there is broad agreement among the schools about the jurisprudential rules, important distinctions between the schools result in different legal interpretations and rulings, albeit typically differences of degree, not of principle.

The rules of interpretation and their application to finite factual settings in the form of legal rulings are collectively termed al fiqh (literally “understanding”). Usul al fiqh, or the “sources of the law,” is what is normally referred to as jurisprudence.  Technically, Shariah is the overarching divine law and fiqh is the way Shariah authorities have interpreted that divine law in finite ways. It is important to note, however, that the word Shariah appears only once in the Qur’an in this context, yet it has gained currency in the Islamic world by virtue of Shariah authorities, over a period of more than a millennium, creating a corpus juris (i.e., al fiqh) based upon their interpretative understandings of the Qur’an and Sunna. As such, this article uses the word Shariah to mean all of Islamic jurisprudence, doctrine, and legal rulings.

2 Yerushalmi, Esq., D.. Shariah’s “Black Box”: Civil Liability And Criminal Exposure Surrounding Shariah-Compliant Finance. Utah Law Review, North America, 200829 01 2009, pages 1027 – 1030, accessed May 2, 2011, http://epubs.utah.edu/index.php/ulr/article/view/76/68