Deprivatizing Islamic law: an argument for judicial interpretation of shari'a in American courts

Abstract

The expansion of private Islamic arbitration services in the United States has provoked opposition from an anti-shari'a movement that is actively seeking legislative reforms and state constitutional amendments to curb what it describes as a “stealth jihad” aimed at Islamizing the American legal system. This article challenges the anti-sharia movement’s narrative and proposes an alternative explanation for the rise of Islamic arbitration as an inevitable by-product of the overall trend toward privatization of law – a process in which courts are outsourcing traditional state functions of dispute resolution to extra-judicial forums that lack the procedural and constitutional safeguards available in ordinary courts. Arguing against proposals for bans on judicial enforcement of shari'a, I argue that courts should take opportunities to deprivatize Islamic law by interpreting and regulating it. Contrary to claims that secular courts are neither competent nor constitutionally authorized to interpret religious law, recent case law indicates that American courts have already been interpreting shari'a for years, and have done so in ways that are fully consistent with federal and state laws.

Keywords:

• Islamic law
• sharia
• arbitration
• legal pluralism

Acknowledgements

The author would like to thank Melanie Wiber and the editors of the Journal of Legal Pluralism and Unofficial Law for their assistance with this article, as well as the anonymous reviewers for their helpful and constructive comments.

Note

Notes

1. Mahr is a payment in money or property that a wife is legally entitled, under shari'a, to receive from her husband upon marriage. Mahr is usually divided into two parts: that which is paid at the time of marriage (muajjal) and that which is paid only upon the dissolution of the marriage by death or divorce or other agreed upon conditions (muwajjal) (Bix 2013, 20).