ELECTION DAY 2016 :: Civil Rights Sharīʿa and the Elections as a Part of the American Political Process

On election day 2016, Professor Intisar Rabb, SHARIAsource founding editor-in-chief, reflects on the notion of “civil rights sharīʿa”: the role that Islamic law has historically played in honoring and pressing for shared commitments to justice and equality under the law. Modern American history already exemplifies this notion in the legacy of boxing legend Muhammad Ali, who died as a civil rights champion. In addition to advocating for the disadvantaged throughout his life, he once took his case against joining the U.S. military to fight in Vietnam all the way to the Supreme Court, and winning. All this he did on the basis of his Islamic faith, that is, his understanding of sharīʿa that drove him to see that conflict as an unjust war against innocent civilians that did nothing to serve the cause of justice, especially given the problems of racial inequality at home. In Ali’s own words, “Why should they ask me to put on a uniform and go 10,000 miles from home and drop bombs and bullets on brown people in Vietnam while so-called Negro people in Louisville are treated like dogs and denied simple human rights? … Man, I ain’t got no quarrel with them Viet Cong. No Viet Cong ever called me n****r.” Rabb draws a parallel between this historical example of what she calls “civil rights sharīʿa” and the more recent example of Khizr Khan’s speech at the Democratic National Convention this past July, where he exhibited forceful support for the U.S. Constitution as a Gold Star father of a U.S. fallen soldier, who – in contrast to Ali – died fighting in the U.S. military. One a Kentucky native, the other an immigrant, these two Muslims undeniably expressed a morality that differed strikingly from one another but was equally born of their American values and Muslim faith. Their stories powerfully correct a common misconception – highlighted in the sometimes vitriolic contests over the presidency this election term – that sharīʿa is fundamentally at odds with American values of liberal, constitutional democracy. Moreover, prior Islamic history demonstrates that Ali and Khan’s sense of justice and equality is not derived from a uniquely American belief. The historical record of Islamic law shows a precedent of support for the notion of fighting for justice on the basis of shared moral principles in mixed Muslim and non-Muslim settings. Demonstrating this claim is SHARIAsource senior scholar Sherman Jackson‘s recent article on “Islamic Law, Muslims, and American Politics.” There, Jackson examines the “intelligent moral principles” exemplified by the Prophet Muhammad’s Treaty of Hudaybiyya, in which he prioritized peace over “everyone agreeing to the same theological or legal morality.” These moral principles do not mutate or dissipate, but as Ali and Khan’s actions demonstrate, they often adapt to the realities of the political climate and the demands of justice in any given time and place. Rabb emphasizes that, of course, “whether Muslim or non-Muslim, one should never assume that sharīʿa covers both substantive and administrative procedural laws, or both public law … and private transactions.” In short, under both modern and medieval definitions of sharīʿa, the laws of the state are customary norms that each citizen must follow. In this context, the commitment to upholding the values and spirit of that state are often aspirations rooted both in the U.S. Constitution and the moral principles of sharīʿa.

When SHARIAsource senior scholar Sherman Jackson took to the stage at the Democratic National Convention this summer, he declared that “[o]ur times call for the very best from our political leaders” and prayed for them to realize the basic lesson that “of all the things that nations produce, none is more beloved to [God] than justice tempered with compassion.”

Jackson’s remarks came just two days before Khizr Khan’s forceful support for the U.S. Constitution as a gold-star father of a U.S. fallen soldier, who died fighting in the U.S. military. Jackson’s remarks also came just weeks after the “greatest athlete of all time”, former heavyweight boxing champion Muhammad Ali died as a civil rights champion who took his case against joining the U.S. military to fight in Vietnam all the way to the Supreme Court, and won. Ali had cited religious reasons, ultimately based on sharīʿa or Islamic law, for his refusal to join the military in what he saw as an unjust war against innocent civilians, and expressed concern about the racial inequality at home. In his words: “Why should they ask me to put on a uniform and go 10,000 miles from home and drop bombs and bullets on brown people in Vietnam while so-called Negro people in Louisville are treated like dogs and denied simple human rights? … Man, I ain’t got no quarrel with them Viet Cong. No Viet Cong ever called me n****r.” The contrast between Ali and Humayun Khan, the fallen soldier, is striking: that one should die fighting in the U.S. military and the other refusing to do so, both out of hope for the constitutional promise of equality, both in deference to expressions of their faith – which often gets translated into their commitment to Islamic law as a lens through which to seek justice and equality under American law. In short, both exemplify a type of “civil rights sharīʿa” that has a deep-rooted history in American law and politics.

Sherman Jackson has recently explored the historical roots of that type of Muslim political participation in an article that assesses the role of Islamic Law, Muslims, and American Politics. Drawing on his expertise as a renowned Islamic law scholar and legal historian, and observer of the American political process, Jackson concludes that American Muslims’ participation in issues of U.S. law, politics, and the political process easily draw from Islamic historical roots. Moreover, Muslim political participation reflects the diversity and robustness of American political participation of any other religious stripe, even when they contest the morality of certain policy decisions on different grounds. Moreover, he points out, there is precedence for this view in Islamic law.

A prominent episode of political participation in Islamic historical context occurred when the Prophet Muhammad concluded a treaty with the defeated army of Meccans from his old hometown – who had ousted him for preaching a new religion – close to the beginning of Islam’s advent in the 7th century. In the Treaty of Hudaybiyya, the Meccans refused to recognize Muḥammad’s God as “All Merciful, All Mercy Giving”— a common honorific that Muslims use to follow God’s name – and they refused to recognize Muḥammad as a Prophet or to concede that Muslims had any rights to visit the Kaʿba to perform the rites of the ḥajj pilgrimage. This, for Jackson, was exemplary politics. Instead of insisting on the acceptance of these principles by Meccans who were avowedly non-Muslims, the Prophet privileged the interests of peace above his own understanding of religious belief and practice. He was therefore focused on concluding a treaty as a binding agreement that would bring about peaceful governance and relations, not on everyone agreeing to the same theological or legal morality. Moreover, Jackson points out, the binding agreement was a product of a political negotiation, which sharīʿa permitted and indeed encouraged, albeit not on its own internal terms but on the terms recognized by all parties involved. On that basis, Jackson suggests that Americans might look at sharīʿa with more nuance – Muslim and non-Muslim Americans alike.

This historical example from early Islamic law illustrates how sharīʿa encompasses a set of intelligent moral principles that should not stop Muslims from seeing the U.S. political sphere as legitimate. Indeed, it did not stop Ali and Khan from doing just that, even if they came to different conclusions about how best to fight for the justice that underlies that legitimacy.

The use of sharīʿa to promote civil rights and civic duty in the U.S. is unquestionably present, says Jackson, despite the unfortunate “unspoken assumption” that presents sharīʿa as in fundamental conflict with U.S. law and politics. For him, this post-9/11 assumption likely stems from the notion that Americans generally equate “Muslim” with “immigrant from the Muslim world” who has a problem having an affective commitment to the American republican project. Balderdash, he says. While it is true that some Muslims immigrated in the past few decades, such as the Khan family, the narrative of Muslim-as-immigrant is false in many cases – as revealed in the legacy and community surrounding Muhammad Ali. In fact, the Muslim-as-immigrant narrative overlooks the large contingent of native-born African Americans (Jackson calls the group “the Blackamerican”), who veritably built this country first as slaves before the 1860s, then as civil rights soldiers in the 1960s. It is on their backs that the constitution’s equal protection promises are best realized, and it is they who constitute the majority or at least the largest plurality of Muslims in America.

Understanding the character and commitments of American Muslims is key to understanding the possibilities and promises of the American democratic constitutional project. As Jackson put it: “This oversight [of Blackamericans] can lead us to overlook the fact that Islam, let alone sharīʿah, may not be the most operative inhibitor of cohesive sentiment among American Muslims.” Rather, the true inhibitor of realizing the constitutional promise of equality and freedom, or community norms that engender commitment and loyalty, may indeed be the history of race relations or racism in the U.S., and America’s collective failure to fully meet the promise of the U.S. Constitution and of sharīʿa to opposing racism and injustice in all its forms.

Jackson used the rest of the article to assess “whether and how sharīʿah constrains American Muslims politically, assuming (as [he has]) Islamic law’s basic recognition of the legitimacy of the American political sphere.” To do this, he points to two insights proffered by 13th century Egyptian jurist Shihāb al-Dīn al-Qarāfī (on whom he has written a separate, much-lauded monograph, Islamic Law and the State): (1) that there is an important distinction between questions of law and questions of fact in interpreting Islamic law across space and time, and (2) that the issues that can be legitimately regulated within the purview of sharīʿa are far more narrow than most Muslims admit, and that classical Islamic law itself preserved a realm of “secular” law that Muslim jurists were to leave to the technical experts to address.

Consider the following example on the distinction between law and fact. Does language customarily used to, say, initiate a divorce have the force of law if that language is not recognized according to early Islamic law rules created in a different time and place? This issue is currently a matter of hot debate in the row over whether it is valid for Muslim men to use three “magic words” (ṭalāq, ṭalāq, ṭalāq: divorce, divorce, divorce) to divorce their wives outside of the civil system, now being considered in the Indian Supreme Court. Of course words can have the force of religious law, according to Qarāfī, because the foundational sources of Islamic law speak to how to effect a divorce as part of religious marriage contract. But determining which words should carry have legal effect otherwise (in other words, which words may carry the force of secular civil law), is a matter of custom, which is a question of fact, and which Mālikī law – as the approach to Islamic law that Qarāfī followed – emphatically recognized as legitimate under Islamic law. So, if a new set of words in a new locale are used to give a certain legal effect, then the law should follow the customary usage. For Qarāfī, the point is that early Muslim jurists do not have jurisdiction or monopoly over the factual question of what the custom is. That determination is beyond the scope of sharīʿa. If applied to the Indian case, it may well mean that the “magic words” (and processes) required to effect a divorce in Indian civil law are in fact Islamic as recognized custom, more so than the ancient Arabic formulation that merely presented the customs of the Arabs in the 7th century.

Throughout his article, Jackson works from a definition of sharīʿa that highlights its contingency in particular times and places. He gives an emphatic nod to the idea that socio-political realities have always been a part of sharīʿa, and that they should be considered no less so when contemplating the intersection of sharīʿa and American politics and law. Whether Muslim or non-Muslim, one should never assume that sharīʿa covers both substantive and administrative procedural laws, or both public law (like criminal law: it does not in the U.S. context) and private transactions (like contracts or prenups: it may in the U.S. context according to the American law of contract). In a sentence, it doesn’t.

To be sure, Jackson acknowledges that there are real difficulties in reconciling certain provisions that do stem from sharīʿa with certain aspects of American law and society – such as permissive atmosphere of “hook-up dating” or excessive drinking at a corporate retreat. But these are debates that citizens can have, and they are values on which individuals can reasonably disagree.

Yet, it is helpful to have an understanding of what sharīʿa is in the first place to inform the terms of the debate with a Muslim interested in drawing on sharīʿa to promote shared values publicly and to define the norms of engagement for her own life privately. After all, “one might argue” – as have Steven Carter and other scholars of law and religion – “that part of the socio-political value of Islam (and religion in general) resides in its ability and willingness to challenge dominant cultures and resist the overwhelming power of the modern state.” To find out more about how and why in the context of sharīʿa, the full article is well worth a read.