美國哈佛大學設立伊斯蘭法研究室，收集許多案例。
BOSTON,
Massachusetts – As the United States continues to grapple with growing
Islamophobia, Harvard Law
School has launched a “flagship research venture” to organise the world’s
information on Islamic law: SHARIAsource.
The project aims to
provide a repository for scholars, journalists and policy makers, by making
knowledge freely available, Sharon Tai, SHARIAsource’s research editor, told
Middle East Eye.
SHARIAsource
hosts scholarly discussions of court cases that have dealt directly with state
and Sharia law from all over the world, with a special focus on the US.
“Islamic
law is so often seen as an esoteric and impenetrable base of law. There’s this
kind of perception of a lack of logic, because it’s based in theology,” Tai
continued, “but actually there is a very clear logic behind it. The
way it’s laid out historically, it worked well for the societies in which it
was applied.”
The
project was conceived nearly a decade ago, by Dr Intisar Rabb, Professor of Law at Harvard
Law School and a director of its Islamic Legal Studies Programme. The
initiative has come to fruition over the past few years.
‘Judges
often completely ignore Sharia’
The
research initiative’s blog publishes cases in narrative format to “break down
the cases into a story and explain what they mean, how it actually played out.
That’s what we’re doing to dilute the complexity of these cases,” Tai said.
The
overwhelming majority of the 173
US cases published thus far have seen judges often completely
ignore Sharia. Many of these cases deal with discrimination lawsuits and
religious freedoms of prisoners who have converted to Islam while in prison.
SHARIAsource’s first
published case narrative at the beginning of March focused on Aleem
v Aleem, where a couple married in Pakistan, moved to the US,
and then requested a divorce.
The husband divorced his
wife and then argued that she should not have any rights to property because
this had not been outlined in the marriage contract that was signed in
Pakistan.
On her part, the wife
stated that the divorce should be litigated according to US law, and the
property split equally. The court agreed, saying that the Maryland court would
give no deference to Pakistani statutes, derived from Sharia.
“American legal
principles are going to take precedence,” Tai said regarding the case.
With several
US states passing a ban on the use of Sharia and
foreign laws in state courts and others considering it, Tai and her colleagues have been given
another goal, to make the complexities of Islamic law easily understood by the
public.
Law
of the land
Imam John Ederer, an
Oklahoma native who teaches at Al-Salam mosque in Tulsa, Oklahoma, said that Muslims are obliged to honour the
law of the country they live in, according to Islam.
Ederer, 38, converted to
Islam at the age of 18, and studied Arabic and Islam in Egypt and Kuwait a few
years later.
“As
citizens of a non-Muslim land, we are obliged to honour [and] respect the law
of the land,” Ederer said. This is found in chapter five of the Quran which
requires believers to fulfil all contracts, the imam explained. (愛國愛教)
“If I
choose to be a citizen, take a green card or a visa, I am obliged to follow
these laws," he added.
Oklahoma’s measure to
ban the state's courts from considering Sharia law and other foreign laws under
any circumstances, was passed in 2010. It was blocked shortly
after and then struck
down in 2013, when a judge found it violated the freedom of
religion provisions of the US Constitution.
"It is abundantly
clear that the primary purpose of the amendment was to specifically target and
outlaw Sharia law," wrote US District Judge Vicki Miles-LaGrange, who
issued the verdict.
The US
Constitution protects religious liberty in the US and prevents
any law from targeting a specific religion.
Ederer said that the ban
on foreign laws in state courts is cause for concern for many in the Christian
and Jewish communities as well, as neither of these religions were founded in
the US.
Dr Samy
Ayoub, a lecturer at the University of Texas and expert in Islamic law, Muslim
ethics and modern Arab legal regimes, agreed with Ederer, telling MEE that it is incompatible with Islamic legal
tradition to impose Sharia in the US.
"There isn’t even a
universally agreed-upon notion of Sharia law today. In Saudi Arabia, it is
Saudi law; in Egypt, it is Egyptian law," Ayoub said. "This is because we live in a modern
nation-state system,” which changes the accepted tenets from one country to
another.
Rather than dealing with
a real problem, such laws are more of a tactic used to open up conversations
that “criticise the Muslim community,” he concluded.
Religious belief or law
Will
Smiley, assistant professor of history at Reed College and a researcher,
told MEE that after the Oklahoma amendment and others were rejected, new laws “only restrict foreign law if
the application of that law violates constitutional rights”.
Smiley said that “Islamic law is hardly ever applied” in
US courts, and that
the “intent of the current laws is probably discriminatory, and so is their
political effect”.
However, it is not as if
US courts never defer to religious law. In 2014, Burwell v Hobby Lobby Stores,
Inc - a case heard by the Supreme Court of the United States - the justices
ruled that Hobby Lobby, an
Oklahoma-based chain of arts and craft stores, did not have to provide birth
control as part of its employee health coverage under the Affordable Care Act, as it
went against the Christian values of the owners.
"I
don’t hear people talk very often about ‘Christian law’… When courts deal with
Christian or Jewish rules of law and ethics, we talk about religious belief
- not about law,” Smiley said.
Smiley believes that the
Hobby Lobby case highlights the difference in public discourse.
"Because it was about Christians, we instead talk about
whether US law should accommodate their religious beliefs. This one little
difference in wording makes Muslims’ religious rules, about behaviour and
ethics, sound much less personal than Christians’ - and probably scarier,” he
concluded.
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