Would you like to live under a “Soviet communist regime”? If you were to pose this question to the average US citizen, the most probable answer would be an outright rejection. But the question itself is already loaded. It implies an antagonism that builds on decades of ideological and political conflict and propaganda.
Similarly, to ask Muslims in the West if they would like to live under Sharia law implies a definition of what Sharia is and a contradiction with Western law. However, the Islamic understanding and discourse is much more nuanced.
That is the grit of an online controversy that has recently emerged following the remarks of a well-known Islamic scholar in the US. Addressing the Rayburn House in Washington, Shaykh Mohammed Amin Kholwadia argued that “Muslims do not subscribe to Sharia law in the United States.”
Kholwadia argues that “there’s a law for Muslims in a Muslim country, which is the total Sharia, and they have to abide by the total Sharia. And there’s a law for Muslims in a non-Muslim country, like the USA, and there the laws are slightly different.”
As part of those who do not live in a Muslim-majority country, he states that “Muslims are not allowed to call for Sharia law in a non-Muslim country, by law (Sharia). They’re not allowed to do this.” His argument is that under well-known parameters of the Sharia, Muslims who live as a minority in a land cannot and should not want to impose the commands of the Sharia as the law of the land, and should abide by the legal code of where they are living.
This would seem quite logical but is equally confusing for many Muslims. That is because there is confusion surrounding the understanding of the term “Sharia”.
“Sharia”, in its original Arabic meaning, implies a path or a road. Generally understood as the path to God for Muslims, as mentioned in the Quran (45:18), any Muslim that considers himself a believer of the faith would, of course, want to follow that path. In this sense, Sharia could be described as the way in which a Muslim understands his role in this life in regard to the universe and to other human beings, and acts accordingly.
But “Sharia” also has another technical definition: the agglomeration of rules and judgments derived over centuries by elaborating on primary sources by Muslim scholars, also known as “Fiqh”. This became the basis for the jurisprudential body that was used to govern Muslim-majority lands, and it answered to continuous as well as emerging social challenges.
It is in the second sense that Kholwadia argues that Muslims in the West are not allowed to call for Sharia implementation because they live in places that have their own legal code and tradition, which the majority of the population subscribes to. This assertion is backed by traditional Islamic scholarship, as an article penned by a young US Muslim scholar in defense of Kholwadia makes clear:
“Abu Hanifah, in 8th century Kufa, near the tomb of Mukhtar al-Thaqafi, if not directly outside of it, taught that ‘Abdullah bin Masud and Umar bin al-Khattab, in the latter’s decrees and the former’s teaching circles of Kufa, had argued that the Shari’ah outside of the Umayyad empire mandated different regimes if they lived under non-Muslim rule,” writes the author, who goes by the pseudonym Samarqand and, according to his bio, is pursuing a PhD at Harvard.
Apologies for the many foreign names and concepts, but a cursory search will show that those mentioned are among the most authoritative early Islamic sources. This shows that Kholwadia’s position is not just a fringe, modern approach.
However, as is usually the case with religious interpretations, there is more than one opinion. An article penned on Substack in response to Kholwadia’s remarks tries to refute him. The author states that:
“Claims like “no Muslim jurist in his right mind will ever tell his followers or congregation that you must abide by Sharia law in the USA. It’s not allowed. In fact, it’s a sin.” and “There is no way that Sharia will allow a Muslim living in the USA to promote Sharia law in this country. It is not allowed by Sharia law.” are seemingly blasphemous statements with signs of an ideological inferiority complex with regards to Western thought.”
The author accuses Khowadia of being influenced by Western secular notions in regard to law and the sacred. He claims that there is no distinction in Islamic law between a “sin” and something “illegal,” for if something is illegal, it is because, according to Muslim sources, it has been legislated as a sin by God.
This proposition, although correct in principle, ignores the fact that there are only a few and very clear direct commands in the primary Islamic sources, and that most of what has come to be accepted as Sharia rulings are scholars’ elaborations on them.
I’m not trying to argue about the validity of those elaborations nor the corpus of Islamic jurisprudence—to which English (and by extension U.S. Common Law) owes a great deal—but simply pointing out that the two positions about the Sharia refer back to a lack of definition of the term, a difference that neither Kholwadia nor the refuting article makes clear.
And this is also the problem when Muslims are asked if they would like to live under Sharia law or if they would like to see Sharia law in the West. I believe that most Muslims would respond affirmatively in the first meaning—Sharia as a path to God. But when polls and right-wing pundits make claims—including the current U.S. president—they usually mean the second: a concrete body of jurisprudence.
What both Muslims that say they want Sharia law (in whichever of its interpretations) and those who accuse them of such usually miss is that, in the Schmittian sense, there is not properly speaking a functioning Islamic nomos. This makes the Sharia not the law of the land, but in the best cases, a guide and inspiration, and in the worst, a superposition over other legal systems and a justification for the status quo.
Let me elaborate on this, because it has further political and geopolitical implications.
I take Carl Schmitt’s definition that a nomos emerges from the application of a legal conception to a particular and defined land. That implies that for a nomos to emerge, land must be taken and its basic law—that is, its ownership, distribution and transmission rights—changed. That is what happened when the Islamic prophet, Muhammad, emigrated from Mecca to Medina and later conquered the former.
That is also what has happened every time in history that there has been a change in the nomos. Sometimes this was gradual, as with the devolution or evolution of the Roman Empire into the Catholic one. Sometimes it was sudden, as with the French Revolution. We could say the same of the founding of the United States.
When Western settlers arrived in North America, they took land and they brought with them a concept of ownership that was entirely foreign to the Native Americans. It is not that they did not have laws and regulations about land and property, it is that their concept of property and law was entirely different. As the authors of the book The Dawn of Everything very convincingly argue, the social organization and property laws of Native Americans were not some backward form belonging to hunter-gatherers, but a conscious decision to avoid Western-style hierarchical systems.
When I say that there is not a current, functional Islamic nomos, I mean it in this sense. After the fall of the Osmanli Devleti (incorrectly referred to as the Ottoman Empire), most Muslim-majority lands were colonized. This was a taking and an imposing of a different concept of property on a land, which essentially dismantled the Islamic nomos.
As an example of this, I will mention Islamic Waqf law. It’s usually translated as the law that governed foundations, but is actually much more than that. The concept of a Waqf, as it is generally accepted to have been first established by Prophet Muhammad, is the transmission of the ownership of property to God. This is not some abstract concept, but a legal one.
Awqaf (plural of Waqf) are properties that are given legally to God under a constitutional document, and the benefit of which—whether it’s an orchard or a shoe-making business—is used for beneficence. This was the model used throughout the Islamic world to build many hospitals, schools, and shelters, or even to feed stray dogs and cats (in Istanbul).
The Waqf is governed by its foundational charter, and no government can change it or revert it, but only supervise its correct functioning (this is not to say that it was free of corruption). The model was so successful that large tracts of land—a great part of Palestine or Algeria, for example—were Awqaf. What is considered the first University in the world, the Qarawiyyin in Morocco, was founded on this model by a woman.
Western colonization completely dismantled this form of property and erroneously, according to Islamic norms, attributed that land to the State. This was necessary in order for the formation of a centralized authority; otherwise, much of Muslim civil life—education, healthcare, old age homes, and even some roads—could function without it.
Western colonization unraveled this model as part of the unraveling of the Islamic nomos, of which this was only a part. The Islamic economic system, which strictly forbids interest and usury (and crucially, fiat currencies fall under that definition for most early Islamic scholars), was also dismantled and banking introduced. And, together with property and the economy, the civil laws changed. The Sharia, which was the law of the land, became a moral compass at best, unable to regulate property and its transactions.
All Muslim-majority countries function today under the Western system of property and finance, which they inherited from colonization or adopted to resemble it. They all depend on the same sources of energy (mostly oil), and daily life and challenges for the average citizen are the same in Kuala Lumpur, Istanbul, or New York.
In this context, to speak about Sharia law as a total system seems to be an anachronism. There is not much difference in how a Muslim in Riyadh experiences life compared to one in London. Of course, the one living in Riyadh has certain perks, such as hearing the adhan (the call to prayer) and having plentiful mosques, but what drives and orders daily life is very similar.
For this reason, I agree with Kholwadia’s argument that Muslims have a different approach to the understanding of the Sharia where they live as minorities, but I would extend this argument to where they live as majorities, because they are not living in a paradigmatic Islamic nomos. This is also a derivation of the argument made by Columbia Professor Wael Hallaq in his book The Impossible State, where he argues that the modern concept of the nation-state is incompatible with the Islamic tradition.
And here is where I see the critique made to Kholwadia as also valid. Not because of the argument made in the quoted articles, which I think is erroneous, but because I believe that original Islamic conceptions of property, liberty, and standing against oppression could help against the challenges that modern (or post-modern) digital societies—the Leviathan state, mass surveillance, private digital money—are posing to every one of us, as humans.
