Sharia Law and American Civil Law (Law Essay Sample)
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Can Sharia Law exist in a non-Muslim state? Is Sharia Law a threat to the American legal system? Should Sharia Law be considered in legal cases? Is it possible to support democracy and Sharia Law simultaneously? The legal tenets of Sharia Law are controversial in a modern democracy. When considering Sharia Law current issues of the religious practices of Muslims arise which are contrary to the welfare of the American society. The American legal system is the cornerstone of Western civilization. If the American legal system were endangered by Sharia Law, the very fabric of the rule of law would be endangered. Two legal systems will inevitably place a strain on the country and cause a distortion of what is clear and consistent under the rule of law. Out of respect for the rule of law, and the realization that Sharia Law would be a threat to the American legal system the idea of legal pluralism must be discounted. The threat to any religious establishment or freedom of religion is reason to pause and reflect on what we call the balance of freedom.
The freedom of religion is protected under the First Amendment. Our founding fathers realized that it would not be good for a government to get into the business of supporting an established state religion. To that end, the First Amendment was drafted and the freedom of religion and even the freedom from religion are practiced in our country. This position has been tested in the Supreme Court and was found to be secure as it was written. The case of Reynolds v. United States established the position of the civil government of the United States. The case involved polygamy, a questionable practice of the Mormon Church where the court ruled the practice unlawful and that those who practiced polygamy interfered with the laws of the country. The greatness of any society is no less than democracy being established for all and all benefiting from the rule of common law even when it appears that the government is becoming involved in religion.
A question might be raised about how American Muslims define Sharia Law. As with any religion, there are questionable facts surrounding the Muslim faith. The Western view of Sharia Law and a devout Muslim's view of Sharia Law will be different. "In view of the fact that being an American Muslim may be different for each Muslim, pluralism is a matter that all Muslims must deal with" (Halim, 2006, 240). Fachrizal Halim argues that until American Muslims reconcile the diversity in their faith between fellow Muslims and assimilate their identity in the public sphere, the second and third generations of immigrants and native-born Muslims will struggle to bridge their faith with American values. "Muslims are an increasingly important part of the socio-political landscape in the United States. The growth of Islam in America, has come chiefly through post-1965 immigrants- becoming one of the three major [religious] groups" (Leonard, 2005, 5-6).
The concept of pluralism is arguable as to whether or not the diversities of the Muslim religion can be integrated. I would first argue that American Muslims cannot reconcile their difference among their fellow Muslims. Secondly, I maintain that any adaptation of Sharia Law into the American legal system cannot coexist under any circumstance because of questions raised by the religion, the family, and business interests. "The study of Muslims in the United States illustrates the need to rethink what the term pluralism means in America" (Moore, 2007, 116). As Kathleen Moore identifies the challenges Muslims have under pluralism and their "exceptional circumstances", rise is given to both internal and external struggles within the Muslim community in the United States. Moore's arguments as to the fair treatment and due process afforded to Muslims associated with antiterrorism laws as well as Muslims being associated with terrorism after 9/11 has produced "two Americas (espousing tolerance and inclusion), " (Moore, 2007, 119-121), and the other questioning where Muslims really stand. Moreover, "the insistence that Islam itself is inherently pluralistic (open and tolerant to all believers) begs the question of relationships between men and women. The full inclusion of women has been at the forefront of Muslim American dialogue about justice concerns" (Moore, 2007, 128). Moore confirms the relationship between pluralism and Muslim identities are on two different paths. The Muslims competing ideologies with the fundamentally traditional ideas of society are questionable in that these conflicting ideologies cannot be replaced with tolerance. Identifying what is congruent in the Muslim faith is something the Muslims must work out. The Pluralism of modern society is enjoyed by all faiths and not just one faith. Muslims need to integrate their faith into American values and not the other way around. Americans will never integrate into the Muslim faith and give up the democracy that is so enjoyed by all.
A society and a nation have the right to protect their country with laws. If Sharia Law is a threat, we should take a deeper look into the laws that govern this religion. If Sharia Law will adhere to the fundamental thoughts of American society and values, as author David Houck states, "Such questions are no longer theoretical-Islamist community leaders are challenging the principles of assimilation and equality-seeking to live according to a separate but equal philosophy" (Houck, 2006, 1).
The Muslims' ideologies compete with the fundamentally traditional ideas of American society, leaving unanswered the question of whether or not these conflicting ideologies can be replaced with tolerance and cooperation. Religious pluralism in modern Western societies is enjoyed by all faiths. The Muslims should integrate their faith into American values and should not demand that American values migrate into the Muslim faith. The challenges of pluralism are unsettled issues within the ranks of scholars on both side of the argument.
In The Challenge of Pluralism, authors Stephen V. Monsama and J. Christopher Soper examine the different approaches of church-state relations in five democracies. This cross sectional study in the United States, Netherlands, Australia, England, and Germany examines the extent to which the rise of Muslim immigration presents challenging church-state issues. The authors recognize how the religions of the world have changed and have become more religiously pluralistic. The change continues "to create a powerful stream that shapes the contours of the current debate" Monsama and Soper, 2009, 7). Pluralism is arguable as to the extent to which other religious groups, religions, the state, and gender issues can be integrated into the Muslim religion and thought. Kathleen Moore identifies the challenges that Muslims have under pluralism and their "exceptional circumstances" which give rise to both internal and external struggles within the Muslim community in the United States. Moore remarks "The study of Muslims in the United States illustrates the need to rethink what the term pluralism means in America" (Moore, 2007, 116).
There are many diverse opinions and scholarly authors who have written on the topic of Islamic law. The diverse opinions are related to the efforts by Muslim communities in asserting their Islamic identity here in America and in England. Dr. Samia Bano claims that "multicultural citizenship" of Muslim religious practices and loyalty to the state are no longer accommodated in the context of policies, but have moved to a crisis of multiculturalism. Muslim legal scholars now discuss and question the need to accommodate their cultural and religious difference in Western societies (2007, 1-2). The debate about multiculturalism concerns the extent to which religious practices and beliefs should be accommodated in Western societies.
Dr. Bano focuses mainly on the alternative dispute resolution system which is operating in Britain through Sharia Councils that regulate Muslim family law. Bano has been an advocate for the rights of women for a number of years. She specializes in Muslim family law and Asian Muslim women in Britain. Dr. Bano has examined doctrinal research involving British Muslims in order to help understand the rise of Muslim communities and drew from statistical evidence on the practice of Islamic family law. The questions raised by this study regarding Muslim religious practices and their relations to the state, have brought on theoretical debate regarding the perceived failure of multiculturalism.
One of the scholarly opinions is that the Muslim Umma should become the primary source of religious identity. Dr. Bano argues that "this term also reveals the ambiguities in the notion of the Muslim Umma" (2007, p25) and that all Muslim identity should be understood in the broader context of mobilization and the complex process of globalization. She believes that Muslim religious practices are now more integrated into public life and not so confined to the small private Muslim Umma. Dr. Bano claims that this "has important implications for public policy..."(2007,p.25).
The debate among scholars widens as to whether or not Islamic law, also known as Sharia Law, can be incorporated in a privatized form of dispute resolution and be legalized in England. A research group "Policy Exchange" conducted a study on British Muslims and found that "37% of the Muslims in Britain are in favor of being governed by some form of Sharia Law" (Bano, 2007, 25). Many scholars contribute to this rise of Muslim communities, which are commonly described 'Muslim Umma.' The Muslim Umma wants the state to acknowledge Sharia Law and to incorporate it into the English legal system. Ihsan Yilmaz confirms this and states "[as] is known, in England, some Muslim groups have been campaigning to establish a Muslim personal law system in order to regulate autonomously their personal and family related issues according to Muslim Law" (2001, p. 297). The opinions are diverse among the different schools of thought that one adheres to in the Muslim faith as to what personal laws should be allowed to exist.
In America, the debate over Islamic law is similar to the debate in England. The legal systems of these two countries are similar. They share the principles of the rule of law and the separation of church and state. Religious customs and beliefs are acceptable in an open and free society. Religious laws or personal laws are defined as traditional customs which are not recognized by either government as a legitimate legal system. Many legal systems are not based upon codified systems and are incompatible as such with Sharia Law. Attempts to integrate Islamic law into codified systems have caused a number of scholars to speculate and politicize the problem. Two such problems are the personal law quorum and the determination of who is to interpret Sharia Law. The question that must be answered concerns who is in authority, if not the state. By what authority is the Sharia Law to be expressed and given meaning?
Karen Leonard, a professor at the Anthropology School of Social Sciences, has reviewed the diversity of American Muslims and the problems associated with how difficult it is to understand the practice of Islamic law in the United States. Leonard states that traditionally trained Islamic scholars are being challenged by a more progressive movement of American Muslims with a greater outreach among Muslim women and professionals. "Muslims are an increasingly important part of the socio-political landscape in the U.S. The growth of Islam in America has come chiefly through post-1965 immigrants and Islam has become one of the three major [religious]groups" (2005, p.5-6).
From a layman's perspective, British author and Bible teacher David Pawson has analyzed the spread of the Muslim religion. "The advent and advance of this faith, the latest of the great world religions, constitutes an astonishing story, covering the last fourteen centuries" (2003, p. 11). Fachrizal Halim states that "Reading Muslims in the framework of American religious history is a relatively new subject..." and that "given the huge diversity of Muslims, pluralism will continue to be an important issue that Muslims must deal with" (Halim, 2006, 235).
The concern with state law and the conflicts within Muslim practices is in opposition to the state. The challenges Muslim practices makes on local communities and state law are great. The difference between the Western view and Muslim view of Shgaria Law is different and different meanings are established within each view. Halim remarks, "In view of the fact that being an American Muslim may be different for each Muslim, pluralism is a matter all Muslims must deal with" (Halim, 2006,240). Frachrizal Halim argues that until American Muslims reconcile the diversity in their faith between fellow Muslims and assimilate their identity in the public sphere, the second and third generations of immigrants and native-born Muslims will struggle to bridge their faith with American values.
Marcia Hermansen explores the hypothesis of an ideal relationship between Islam and culture. The starting point she uses is the classic work of H.R. Niebuhr, Christ and Culture. Hermansen draws from common attributes between Islam and Christian religious responses to culture. The pose is that Islam and Christianity are the two largest religions in the world. Hermansen highlights the contemporary American Muslim debates on Islam and culture by emphasizing multiple and diverse cultural worlds. The back drop of her assessment within the Muslim community shows several commonalities and disagreements between the two religious groups. Moore confirms that the relationship between pluralism and Muslim identities are on two different paths.
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