Asifa Quraishi-Landes

A much-cited 2013 Pew poll reported that a strong majority of Muslims around the world favor making sharia the “official law of the land” in their countries. This was alarming news for many, especially when followed by further statistics supporting things like hand amputation and stoning as criminal punishment. But does a Muslim desire for sharia necessarily mean “sharia legislation”? Does public support for sharia have to mean Muslim theocracy? The answer is “yes” if sharia is defined as scripturally derived religious legal doctrine. But that is a very narrow definition of religious law, and it is an especially inappropriate way to understand sharia. In this article, I will explain why a country that “follows sharia” need not — indeed, should not — be one that “legislates sharia.” I will also show how an appreciation of this distinction — among Muslims as well as non-Muslims — will open up new solutions to the apparently intractable and politicized conflicts between Islamism and se...

The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits?4 I will address one aspect of this question by summarizing in Part II how Islamic family laws is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women's rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims.

This lecture transcript provides an introduction to Islamic law, jurisprudence, and locations of legal authority for Islamic law and government. Without going into detail regarding its many different geographical manifestations over many hundreds of years, this lecture lays out basic categories of where legal authority has been located for Muslims, and explains the concepts inherent to Islamic legal analysis. Contemporary examples especially relevant to Islamic law and women serve as a practical lens through which to ground the relevance and importance of this topic today.

American judges have been judging Muslim divorces in state courts for years, creating a body of case law that not only involves Islamic family law doctrines, but also reveals interesting insights about American Muslim marriage practices generally. This article reviews the holdings in some published cases, exploring questions of overlapping jurisdictions (state and religious law), and how enforcement of Islamic contract-based claims such as the mahr (bridal gift) have fared in American courts. The article draws from interviews with lawyers, social workers, and imams who have advised American Muslims negotiating the process of marriage and divorce in the United States. A brief survey of relevant literature, as well as some suggestions for future practice, is interwoven in the presentation.

In 1979, Pakistani President Zia ul-Haq purported to "Islamize" the laws of Pakistan with a new criminal code, the Hudood Ordinance, which included, among other things, the crime of zina (extramarital sex). Four eyewitnesses were required for prosecution of the hadd crime of zina, following Quranic text and established Islamic legal doctrine. However, the zina provisions of the Ordinance added the crime of rape, termed "zina-bil-jabr" (zina by force) as a subset of zina, and consequently required four eyewitnesses to prosecute this crime as well. This legislation had the tragic result of rape victims being suspected of zina for lack of four eyewitnesses to prove the non-consensual nature of the sexual intercourse. This article explains how the rape provisions of Pakistan's Hudood Ordinance directly contradict established Islamic law on zina and rape. I begin with a review of the crime of zina in classical Islamic law, exploring the jurisprudential rationale f...

The place of religion in the political order is arguably the most contentious issue in post-Mubarak Egypt. With Islamist-oriented parties controlling over 70 percent of seats in the new People’s Assembly and the constitution-writing process about to begin, liberals and leftists are apprehensive about the implications for Egyptian law and society, including the rights of Egypt’s millions of Coptic Christians.

Unlike the relationship between executive, judicial, and legislative powers in modern democracies, the classical Muslim balance of power was not between government entities but rather between the government as a whole and the nongovernmental forces of scholarly academia. Neither had absolute power over the law, and each institution recognized the other's presence and role in the system. This chapter offers a brief overview of this classical Muslim balance of power, summarizing how it is both similar to and different from the contemporary constitutional concept of a separation of powers. It suggests the ways in which classical Muslim structure of authority might provide useful insights for rule of law questions in Muslim majority countries today.

In this chapter, I examine the role that language has played in this state of affairs. I will show that western categories like “law” and “morality” inappropriately essentialize the European Christian experience with law and religion and that discussing Sharīʿa with these limited terms has contributed to unnecessary conflicts between Islamism and secularism in the world today. Once it is understood why describing Sharīʿa as “law” is both over and under-inclusive, it will become clear how a Muslim-majority country can have Sharīʿa as the law of the land--but not by legislating it.

This article takes a comparative approach to answering the question of what "unconscionability" means, as referenced in Section 2-302 of the US's Uniform Commercial Code.  It describes the US courts' failure to develop a clear test for the doctrine, and the need for a clearer doctrine.  It then introduces and explains the basi relevant Islamic legal concepts regarding invalid contracts, and proposes a test for unconscionability that brings together Islamic and American and illustrates this proposed test by applying it to typical cases.

This paper addresses the importance of legal pluralism as an essential feature of Islamic government. Drawing on legal and political concepts from pre-modern Muslim systems and jurisprudence, the author explains the importance of differentiating between two types of law in an Islamic context: (1) “siyasa,” made by the state in furtherance of the public good; and (2) “fiqh,” made by religious legal scholars based on interpretation of the Qur‘an and Sunnah. The separation of fiqh from siyasa has existed in Muslim societies for centuries, but has disappeared in the modern period. The European nation-state model of government, in which all lawmaking power is centralized with the state, has become the norm in most Muslim-majority countries, leaving most Muslims unaware of the classical history of fiqh as a separate legal sphere with different legal authorities. Without a clear differentiation of siyasa from fiqh, modern Muslim countries run the risk of “legislating” Shari‘a, which eliminates the fiqh pluralism that was inherent to the fiqh realm and creates dangerous near-theocratic forms of government. The author articulates a way to translate the pre-modern fiqh-siyasa separation of powers into a contemporary model for Islamic constitutionalism and analyses some features of the current Afghan Constitution from this perspective.

The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.

Judges and scholars in both Islamic and American jurisprudence have wrestled with the question of their own fallibility and how uncertainty and indeterminacy should be accommodated in the law. Complicating matters is society's need for finality in the resolution of important legal disputes. Both legal cultures have responded to the challenges of fallibility and finality in their own ways, and wi􀂆th profound impacts upon the nature of their respec­tive legal institutions. The institution of the qadi, it turns out, provides an illuminating lens through which to consider these different approaches to legal order, and the nature of Supreme Court judging in particular, especial­ly as performed in constitutional law cases. Taking the qadi perspective illustrates that the Court simultaneously performs two roles: it is both the final adjudicator of constitutional disputes and also the ultimate expositor of constitutional law. These roles are skillfully intertwined in judicial opi­nions, but I have found that disentangling them helps to bring into clearer view the core elements of a justice's chosen interpretive methodology and when (and perhaps why) it is compromised in individual cases. The result is, I believe, a new awareness of the choices made by Supreme Court justic­es when faced with the competing pulls of their methodological convictions, the nature of the United States legal system, and their sense of their role within in it.

For many women's rights activists working internationally, especially those coming from a western context, sharia is believed to be a major obstacle to women's rights. In order to protect women from Muslim religious law, these advocates often position themselves aggressively against so-called sharia legislation and sharia in general. I believe that this approach is counterproductive and ultimately exacerbates, rather than improves, the situation for women living in Muslim-majority countries. In this article, I explain how current global feminist strategies have helped create an unwinnable and unnecessary war: that of sharia vs. women's rights. Drawing on observations incident to my work on the zina (extramarital sex) laws in Nigeria and Pakistan, I argue for an alternative: women's rights advocates concerned about the situation of Muslim women around the world would do better not to mention Islamic law at all. This would be a major strategy shift, requiring significant restraint on the part of western secular feminist activists, but I believe it is worth it. I explain how, with this shift in approach, internationally-active women's rights advocates might more effectively contribute to securing rights for women in Muslim-majority countries. This shift could also open up a new appreciation for a wider spectrum of feminism, including that coming from a sharia-mindful perspective. In short, I argue for a world of advocacy for women that is nuanced and sophisticated and works with—not against—the reality of sharia in Muslim lives.