Operating Islamic Jurisprudence in Non-Muslim Jurisdictions: Traditional Islamic Precepts and Contemporary Controversies in the United States

Abstract

With the recent public furor in the United States regarding “Shari‘a,” studies into the content of Islamic jurisprudence concerning Muslims living under non-Muslim jurisdiction are more pertinent than ever in the U.S. context. As “anti-Shari‘a” rhetoric has increased in fervency, informed input into the debates could go some way in correcting the peddled misconceptions. The paper begins by assessing how Muslim scholars viewed a Muslim’s travel to and residence in non-Muslim lands, and the obligation to abide by the laws of the land. It will focus on the jihad (siyar) section in Islamic jurisprudence and the section on judiciary (qaḍā’/adab al-qāḍī), and overlapping discussions of relevance pertaining to criminal law and financial law. The section on jihad assesses the issue of jurisdiction in terms of whether Islamic law can be applied to crimes committed in non-Muslim lands. A study of the section on judiciary will show how Islamic jurisprudence provides a means for Muslims to adjudicate among themselves in a non-Muslim polity. While much of the focus is on the Ḥanafī School of jurisprudence, comparisons will be made to other schools where possible, discerning areas of convergence and points of departure. Once this has been discovered, the actual intersection of Shari‘a and the American legal system will identify the fallacy of anti-Shari‘a propaganda. In doing so, I argue that a common sense approach is required that recognizes the accommodating principles in both legal traditions.