When Religion and State Meet: Demystifying the Confusion Behind Islamic Law

From the first conception of a justice system to the legislative systems of today, law has ruled every aspect of society, deciding what is right and wrong. Similarly, it could be argued that religion and spirituality have also dictated our actions and moral compass. These two fundamental conceptualizations have been omnipresent throughout history and in our modern society, whether back in the 1800s during Thomas Jefferson's election or now when debating Afghani women's role in their society pertaining to religious law. 

Religious law is often deemed a trait of the past, and the separation of government and religion can be traced back to the uprising conflicts between the Catholic Church and the surrounding governmental institutions in Europe. It can be equally attributed to the concept of absolutism, which preached that the law was ultimately what the greater sovereign preached. 

It was the ideology that there would only be one faith, one king, and one system of law that everyone would follow, which would arguably be the downfall of the Christian dichotomy of politics. As civil law was developed and the nation identified with a particular society, the separation of state from the church led to society separating from the Catholic faith entirely and the state functioning on its terms. Furthermore, the Reformation Era and Enlightenment period ideas in circulation played into finalizing this development. 

Aside from the tradition of Catholic faith and the origins of where church and state split, we can still find in today’s world instances of debate over this separation. For example, Carson v. Makin, ruled in favor of allowing religious institutions to use public funding. Previously, Maine didn’t permit religious educational institutions to be eligible for public funding and benefits for fear of state and church merging and possible religious indoctrination, showcasing the influence of religion and state that still lingers to this day. 

What is Islamic Law? 

Islamic law, also known as Sharia, is believed to be the divine guidance for Muslims to follow righteous lives and keep a close relationship with God. The rulings are derived from the Qur’an—the holy book of Islam—and Hadith, which is believed to be the actions and sayings of the Prophet Muhammad. 

Through these rulings, Islamic scholars primarily interpret it and implement it to what they believe is closest to the right path. More than half of the existing Muslim-majority countries have laws based on the Sharia tradition, usually about marriage, divorce, custody, and inheritance. There are only a few instances in which Sharia law is implemented in the criminal justice system, whether partially or fully.

 Typically, non-Muslims residing in countries with Islam as their official religion aren’t subject to this legal system. In the case of criminal law, many punishments are proof-reliant and split into two general categories: hadd and tazir. Hadd involves serious crimes with set punishments, while tazir refers to when the outcome is left to the judge. 

The offenses can range widely based on the crime in question and depending on which category it falls under. However, many controversial punishments, such as stoning and amputations are said to be considered a last resort. Ultimately, it’s constantly adapted to maintain human rights while preserving its Islamic roots. 

How does it differ from secular law? 

In the United States, our government is prohibited from establishing an official religion through the Establishment Clause. It also prohibits the government from hindering religion or promoting a specific belief system. Granted, the Establishment Clause was initially for the prohibition of state-sponsored churches when it was first formed. In the end, these governmental and legislative systems are put in place to prevent the entanglement between church and state. Furthermore, the Free Exercise Clause allows citizens to practice the religion of their choosing or none at all as long as it doesn’t cause a public disturbance against universal morals. Any cases that may come across as unclear or provoke challenge can be resorted to a judge to 

In contrast to secular legislative systems, Islamic law encompasses a further range than systems implemented in the West and focuses on ethical matters and the individual’s day-to-day life, whether in public or private matters. It has drastically different approaches to how it interacts with their citizens’ lives, with one system involving personal matters and the other allowing free-range of activities within certain bounds. The culture surrounding whether the culture surrounding whether sharia jurisprudence should be made the law of the land can differ. For example, South Asian Muslims have shown a more positive attitude towards a sharia legislative system compared to other regions, such as the Middle East, North Africa, and Central Asia. In a survey of at least thirty-eight thousand Muslims from thirty-nine different countries, eighty-four percent of South Asia Muslims favored sharia embedded systems, while only twelve percent of Central Asians favored a sharia system.

The primary difference between secular law and Islamic law is that Islamic law requires the obligation to follow the three main principles: alignment with Islam’s teachings, obedience to government authority, and mutual agreement on the political system between the government and participants. Secular law focuses on universally acceptable beliefs and implements it into law, allowing a more inclusive environment to address shared human values. For example, murder of a fellow human being is a universally accepted crime. 

Meanwhile, in the Islamic tradition, there are rulings that can be contested between the different madhabs, which are schools of legal thought, comprising four mainstream ones. These four are known as the Hanafi school, the Maliki school, the Shafi'i school, and the Hanbali school. The major differences lie in how conservative or flexible their rulings may be concerning various aspects of life and when they were established. 

The Hanbali school is considered the most conservative out of the group and focuses on religious observations to be strictly adhered to. The Sha’afi school focuses on the Prophet Muhammad’s traditions, while the Maliki school focuses on those of the Prophet’s companions. Finally, the Hanafi school is based on his disciples’ writings from recorded discussions and opinions. An example of ruling differences can be found in the question of when one of the five required prayers should be performed. 

The Maliki, Shafi’i, and Hanbali schools all agree on the same times (despite some variations in how it should be calculated) while the Hanafi schools believe some of the prayer times are at a later time from the rest. From the Shia sect, there is the Jafari school of thought, which includes the Imamate, which are traditions of the twelve imams from the Prophet’s bloodline. 

Secular legal systems also have various legislative scholarly differences, depending on the type of law at play and the particular issue at hand. For example, international law often has five main theories pertaining to international relations: realism, liberalism, constructivism, marxism, and feminism. They all approach international relations and the decisions pertaining to the legislative and governmental systems through various lenses. 

How do these legal systems co-exist? 

Dual-legal systems in many countries often follow a model of legislation that is mixed or partially influenced by Islamic law. These systems tend to focus on personal areas of life, such as inheritance and marriage, rather than criminal law. The way the law is implemented depends on a case-to-case basis regarding how each respective country wishes to govern their land. 

For example, despite its lack of an official state religion, Nigeria uses a combination of statutory, customary, Islamic, and English common law to rule the land. Civil and criminal cases are governed by the secular courts; Islamic courts may serve as the first courts to listen in cases. However, this is usually applied towards Muslims and open as an option to non-Muslims if they consent. 

International law and criminal Sharia law have often been compared and contrasted, especially in how dual-legal systems would meet international human rights standards and how variations of criminal law emerged using the same sources, resulting in a spectrum of law across a multitude of Muslim countries. 

Concluding Thoughts

Transcending the scope of what we have learned in the media, Islamic law is comprehensive 

beyond a fixed set of codes for individuals and isn’t as barbaric as what we've been told. 

Whether in private or public matters, interpretations, rulings, and regions play a monumental role in deciding the final outcome, highlighting differences from secular law in the process.

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