Would you like to live under a “Soviet Communist regime”? If you were to ask this question to the average US citizen, the most likely answer would be a complete no. But the question itself is already loaded. It means opposition that builds on decades of ideological and political conflict and propaganda.
Similarly, asking Western Muslims whether they would like to live under Sharia law implies a definition of what Sharia is and a conflict with Western law. However, the understanding and discourse of Islam is very complex.
That’s the challenge of an online debate that recently arose following comments by a prominent Muslim scholar in the US. Speaking to Rayburn House in Washington, Shaykh Mohammed Amin Kholwadia said “Muslims do not obey Sharia law in the United States.”
Kholwadia asserts that “there is Islamic law in the Islamic world, which is the Sharia in its entirety, and he must follow the Sharia in its entirety.
As part of those who do not live in a Muslim-majority country, he says “Muslims are not allowed to invoke Sharia law in a non-Muslim country, according to (Sharia) law. They are not allowed to do this.” His argument is that under the well-known limits of Sharia, Muslims who live as a minority in the country cannot and should not seek to enforce Sharia’s orders as the law of the land, and must comply with the legal code of where they live.
This may seem logical but it is equally confusing to many Muslims. That is because there is confusion about the understanding of the word “Sharia”.
“Sharia”, in its original Arabic meaning, means a way or a road. It is generally understood as the path to God for Muslims, as stated in the Qur’an (45:18), any Muslim who considers himself a religious believer would, of course, want to follow that path. In this sense, Sharia can be defined as the way in which a Muslim understands his role in this life in relation to the universe and other people, and acts accordingly.
But “Sharia” also has another technical meaning: the compilation of laws and rulings that have been found over the centuries by elaborating on the main sources of Islamic scholars, also known as “Fiqh”. This became the basis of the body of law used to govern many Muslim countries, and it responded to ongoing and emerging societal challenges.
It is in the second sense that Kholwadia says that Muslims in the West are not allowed to call for the use of Sharia because they live in places with their own laws and their own culture, which the majority of people obey. This assertion is supported by traditional Islamic scholarship, as an article written by a US Muslim scholar defending Kholwadia makes clear:
“Abu Hanifah, in the 8th century Kufa, near the tomb of Mukhtar al-Thaqafi, if not outside of it, taught that ‘Abdullah bin Masud and Umar bin al-Khattab, in the later laws and earlier teaching circles of Kufa, argued that the Sharia’ah lived outside the non-Muslim state,” wrote the author, who goes by the pseudonym Samarqand and, according to his biography, did a PhD degree at Harvard.
We apologize for the many foreign words and concepts, but a direct search will show that those mentioned are among the most authoritative ancient Islamic sources. This shows that Kholwadia’s position is not just a modern way.
However, as is often the case with religious interpretations, there is more than one point of view. An article written on Substack in response to Kholwadia’s words tries to refute him. The author says:
“Claims like “no Muslim jurist in his right mind would ever tell his followers or the church that you have to obey Sharia law in the USA. It is not allowed. In fact, it is 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 permitted by Sharia law.” statements that appear to be blasphemous with signs of intellectual irrationality in relation to Western thought.”
The author accuses Khowadia of being influenced by Western ideas about law and holiness. He says that there is no difference in Islamic law between “sin” and something that is “illegal,” because if something is illegal, it is because, according to Islamic 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 clear and specific instructions in the main Islamic sources, and that most of what has been accepted as Sharia rulings are scholars’ interpretations of them.
I am not trying to argue the merits of those definitions or the corpus of Islamic law—which owes a lot to English (and US Common Law)—but I am just pointing out that these two positions on Sharia refer back to the lack of meaning of the word, a distinction that Kholwadia or the opposing article does not make clear.
And this is a 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 answer affirmatively with the first definition—Sharia as a path to God. But when pollsters and right-wing pundits make the claim—including the current US president—they often cite a second thing: a substantive body of legislation.
What both Muslims who claim to want Sharia law (regardless of its interpretations) and those who accuse them of that often miss is that, in the Schmittian sense, there is no proper Islamic nomos. This makes Sharia not the law of the land, but in the best cases, guidance and motivation, and at worst, superposition on other legal systems and justification of the status quo.
Let me elaborate on this, because there are other political and political implications.
I take Carl Schmitt’s definition that nomos arises from the application of a formal concept to a specific and defined place. That means that for nomos to emerge, land must be taken over and its basic law—that is, its ownership, allocation and transfer rights—altered. That is what happened when the prophet of Islam, Muhammad, moved from Mecca to Medina and later conquered the former.
And that is what happens every time in history that there is a change in nature. Sometimes this was gradual, such as the separation or evolution of the Roman Empire into the Catholic one. Sometimes it was sudden, as was the case with the French Revolution. We can say the same about the founding of the United States.
When Western settlers came to North America, they took over the land and brought with them a sense of ownership that was completely unknown to Native Americans. It’s not that they didn’t have rules and regulations about land and property, it’s that their concept of property and law was completely different. Like the authors of the book The Morning of All argued persuasively, the social and property laws of Native Americans were not some sort of hunter-gatherer retreat, but a rational decision to avoid Western-style norms.
When I say there is no current, active Islamic nomos, I mean it in this sense. After the fall of the Osmanli Devleti (incorrectly called the Ottoman Empire), many Muslim countries were colonized. This was to take and place a different concept of place in the world, which dismantled the Islamic nomos.
As an example of this, I will mention the Islamic Waqf law. It is often interpreted as the law that governs foundations, but it is actually much more than that. The concept of Waqf, as it is generally accepted that it was first established by the Prophet Muhammad, is the transfer of ownership of property to God. This is not some vague concept, but a legal one.
Awqaf (plural of Waqf) are properties given by God under a constitutional document, and their profits—whether it’s an orchard or a shoemaking business—are put to good use. This was the model that was used throughout the Muslim world to build many hospitals, schools, and shelters, or even to feed stray dogs and cats (in Istanbul).
The Waqf is governed by its constitution, and no government can change or restore it, but only supervise its proper operation (this does not mean that it was free of corruption). This model was so successful that large areas—for example, much of Palestine or Algeria—were Awqaf. What is considered to be the first University in the world, Qarawiyyin in Morocco, was founded by a woman in this model.
Western colonialism completely dismantled this type of property and mistakenly, according to Islamic law, claimed that the land came from the State. This was necessary to create a central authority; without it, much of Muslim life—education, health care, homes for the elderly, even some roads—could function without it.
Western colonialism revealed this model as part of the revelation of Islamic nomos, which was only a part of it. The Islamic economic system, which completely forbids usury and usury (and most importantly, fiat currencies fall under that definition of many early Islamic scholars), was also dismantled and banking was introduced. And, along with property and the economy, social norms changed. Sharia, which was the law of the land, became a moral compass, which could not control property and its transactions.
All Muslim-majority countries operate today under the Western economic and financial system, which they inherited from colonialism or adopted to match it. They all depend on the same sources of energy (mainly oil), and the daily life and challenges of the average citizen are the same in Kuala Lumpur, Istanbul, or New York.
In this context, talking about Sharia law as a complete system seems an anachronism. There is no big difference in the way a Muslim in Riyadh approaches life compared to a Muslim in London. Yes, one who lives in Riyadh has certain advantages, such as hearing the adhan (call to prayer) and having dozens of mosques, but what drives and dictates daily life is very similar.
For this reason, I agree with Kholwadia’s statement that Muslims have a different way of understanding Sharia where they live as a minority, but I will transfer this argument to where they live as a majority, because they do not live in the paradigmatic Islamic nomos. This is also based on an argument made by Columbia Professor Wael Hallaq in his book Impossible Situation, where he argues that the modern concept of the nation state is incompatible with Islamic tradition.
This is where I see the criticism made in Holland also as appropriate. Not because of the argument made in the quoted articles, which I think are wrong, but because I believe that the original Islamic ideas of property, freedom, and standing against oppression can help to face the challenges that modern (or later) digital societies—the Leviathan state, mass surveillance, private digital money—present to each of us, as humans.
