Would you like to live under a “Soviet communist regime”? If you were to pose this question to the average US citizen, the most probable answer would be an outright rejection. But the question itself is already loaded. It implies an antagonism that builds on decades of ideological and political conflict and propaganda.
Similarly, to ask Muslims in the West if they would like to live under Sharia law implies a definition of what Sharia is and a contradiction with Western law. However, the Islamic understanding and discourse is much more nuanced.
That is the grit of an online controversy that has recently emerged following the remarks of a well-known Islamic scholar in the US. Addressing the Rayburn House in Washington, Shaykh Mohammed Amin Kholwadia argued that “Muslims do not subscribe to Sharia law in the United States.”
Kholwadia argues that “there’s a law for Muslims in a Muslim country, which is the total Sharia, and they have to abide by the total Sharia. And there’s a law for Muslims in a non-Muslim country, like the USA, and there the laws are slightly different.”
As part of those who do not live in a Muslim-majority country, he states that “Muslims are not allowed to call for Sharia law in a non-Muslim country, by law (Sharia). They’re not allowed to do this.” His argument is that under well-known parameters of the Sharia, Muslims who live as a minority in a land cannot and should not want to impose the commands of the Sharia as the law of the land, and should abide by the legal code of where they are living.
This would seem quite logical but is equally confusing for many Muslims. That is because there is confusion surrounding the understanding of the term “Sharia”.
“Sharia”, in its original Arabic meaning, implies a path or a road. Generally understood as the path to God for Muslims, as mentioned in the Quran (45:18), any Muslim that considers himself a believer of the faith would, of course, want to follow that path. In this sense, Sharia could be described as the way in which a Muslim understands his role in this life in regard to the universe and to other human beings, and acts accordingly.
But “Sharia” also has another technical definition: the agglomeration of rules and judgments derived over centuries by elaborating on primary sources by Muslim scholars, also known as “Fiqh”. This became the basis for the jurisprudential body that was used to govern Muslim-majority lands, and it answered to continuous as well as emerging social challenges.
It is in the second sense that Kholwadia argues that Muslims in the West are not allowed to call for Sharia implementation because they live in places that have their own legal code and tradition, which the majority of the population subscribes to. This assertion is backed by traditional Islamic scholarship, as an article penned by a young US Muslim scholar in defense of Kholwadia makes clear:
“Abu Hanifah, in 8th century Kufa, near the tomb of Mukhtar al-Thaqafi, if not directly outside of it, taught that ‘Abdullah bin Masud and Umar bin al-Khattab, in the latter’s decrees and the former’s teaching circles of Kufa, had argued that the Shari’ah outside of the Umayyad empire mandated different regimes if they lived under non-Muslim rule,” writes the author, who goes by the pseudonym Samarqand and, according to his bio, is pursuing a PhD at Harvard.
Apologies for the many foreign names and concepts, but a cursory search will show that those mentioned are among the most authoritative early Islamic sources. This shows that Kholwadia’s position is not just a fringe, modern approach.
However, as is usually the case with religious interpretations, there is more than one opinion. An article penned on Substack in response to Kholwadia’s remarks tries to refute him. The author states that:
“Claims like “no Muslim jurist in his right mind will ever tell his followers or congregation that you must abide by Sharia law in the USA. It’s not allowed. In fact, it’s 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 allowed by Sharia law.” are seemingly blasphemous statements with signs of an ideological inferiority complex with regards to Western thought.”
The author accuses Khowadia of being influenced by Western secular notions in regard to law and the sacred. He claims that there is no distinction in Islamic law between a “sin” and something “illegal,” for if something is illegal, it is because, according to Muslim 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 and very clear direct commands in the primary Islamic sources, and that most of what has come to be accepted as Sharia rulings are scholars’ elaborations on them.
I’m not trying to argue about the validity of those elaborations nor the corpus of Islamic jurisprudence—to which English (and by extension U.S. Common Law) owes a great deal—but simply pointing out that the two positions about the Sharia refer back to a lack of definition of the term, a difference that neither Kholwadia nor the refuting article makes clear.
And this is also the 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 respond affirmatively in the first meaning—Sharia as a path to God. But when polls and right-wing pundits make claims—including the current U.S. president—they usually mean the second: a concrete body of jurisprudence.
What both Muslims that say they want Sharia law (in whichever of its interpretations) and those who accuse them of such usually miss is that, in the Schmittian sense, there is not properly speaking a functioning Islamic nomos. This makes the Sharia not the law of the land, but in the best cases, a guide and inspiration, and in the worst, a superposition over other legal systems and a justification for the status quo.
Let me elaborate on this, because it has further political and geopolitical implications.
I take Carl Schmitt’s definition that a nomos emerges from the application of a legal conception to a particular and defined land. That implies that for a nomos to emerge, land must be taken and its basic law—that is, its ownership, distribution and transmission rights—changed. That is what happened when the Islamic prophet, Muhammad, emigrated from Mecca to Medina and later conquered the former.
That is also what has happened every time in history that there has been a change in the nomos. Sometimes this was gradual, as with the devolution or evolution of the Roman Empire into the Catholic one. Sometimes it was sudden, as with the French Revolution. We could say the same of the founding of the United States.
When Western settlers arrived in North America, they took land and they brought with them a concept of ownership that was entirely foreign to the Native Americans. It is not that they did not have laws and regulations about land and property, it is that their concept of property and law was entirely different. As the authors of the book The Dawn of Everything very convincingly argue, the social organization and property laws of Native Americans were not some backward form belonging to hunter-gatherers, but a conscious decision to avoid Western-style hierarchical systems.
When I say that there is not a current, functional Islamic nomos, I mean it in this sense. After the fall of the Osmanli Devleti (incorrectly referred to as the Ottoman Empire), most Muslim-majority lands were colonized. This was a taking and an imposing of a different concept of property on a land, which essentially dismantled the Islamic nomos.
As an example of this, I will mention Islamic Waqf law. It’s usually translated as the law that governed foundations, but is actually much more than that. The concept of a Waqf, as it is generally accepted to have been first established by Prophet Muhammad, is the transmission of the ownership of property to God. This is not some abstract concept, but a legal one.
Awqaf (plural of Waqf) are properties that are given legally to God under a constitutional document, and the benefit of which—whether it’s an orchard or a shoe-making business—is used for beneficence. This was the model used throughout the Islamic world to build many hospitals, schools, and shelters, or even to feed stray dogs and cats (in Istanbul).
The Waqf is governed by its foundational charter, and no government can change it or revert it, but only supervise its correct functioning (this is not to say that it was free of corruption). The model was so successful that large tracts of land—a great part of Palestine or Algeria, for example—were Awqaf. What is considered the first University in the world, the Qarawiyyin in Morocco, was founded on this model by a woman.
Western colonization completely dismantled this form of property and erroneously, according to Islamic norms, attributed that land to the State. This was necessary in order for the formation of a centralized authority; otherwise, much of Muslim civil life—education, healthcare, old age homes, and even some roads—could function without it.
Western colonization unraveled this model as part of the unraveling of the Islamic nomos, of which this was only a part. The Islamic economic system, which strictly forbids interest and usury (and crucially, fiat currencies fall under that definition for most early Islamic scholars), was also dismantled and banking introduced. And, together with property and the economy, the civil laws changed. The Sharia, which was the law of the land, became a moral compass at best, unable to regulate property and its transactions.
All Muslim-majority countries function today under the Western system of property and finance, which they inherited from colonization or adopted to resemble it. They all depend on the same sources of energy (mostly oil), and daily life and challenges for the average citizen are the same in Kuala Lumpur, Istanbul, or New York.
In this context, to speak about Sharia law as a total system seems to be an anachronism. There is not much difference in how a Muslim in Riyadh experiences life compared to one in London. Of course, the one living in Riyadh has certain perks, such as hearing the adhan (the call to prayer) and having plentiful mosques, but what drives and orders daily life is very similar.
For this reason, I agree with Kholwadia’s argument that Muslims have a different approach to the understanding of the Sharia where they live as minorities, but I would extend this argument to where they live as majorities, because they are not living in a paradigmatic Islamic nomos. This is also a derivation of the argument made by Columbia Professor Wael Hallaq in his book The Impossible State, where he argues that the modern concept of the nation-state is incompatible with the Islamic tradition.
And here is where I see the critique made to Kholwadia as also valid. Not because of the argument made in the quoted articles, which I think is erroneous, but because I believe that original Islamic conceptions of property, liberty, and standing against oppression could help against the challenges that modern (or post-modern) digital societies—the Leviathan state, mass surveillance, private digital money—are posing to every one of us, as humans.
Thank you for this explanation. It reminds me of the importance of framing in questions, as in the old lawyer joke question: “When did you stop beating your wife?” A bad frame can make a question nearly impossible to answer. I am taken by the foundational definition of Sharia as a path to God. This reminds me of early Christians being “followers of the way.” As the centuries roll by, all religions have to find ways to adjust to changing situations, both in terms of dealing with outside interference, and adjusting to new situations. In Christianity, for instance, it is a long way from the way Jesus taught in the Sermon on the Mount to the patriarchal white Christian nationalism of a Pete Hegseth. In a parallel way it is also a long way to the philosophical Christianity of a Paul Tillich. In Judaism, Rabbi Richard Rubinstein’s After Auschwitz led him to a radical reinterpretation of Judaism. I am not as familiar with Islam, but I am pleased to see a similar process at work there, when Islam is not under extreme duress from western imperialism.
Let me end with a shout-out to Aziz Abu Sarah and Maoz Inon for their new book “The Future is Peace: A Shared Journey Across the Holy Land.” They are a Palestinian and an Israeli who have both lost family members in the protracted conflict, and each came separately to the conclusion that peace was the only path to life. Today these “found” brothers are a voice crying in the wilderness. Jon Stewart interview them.
Fascinating essay. Thank you. I think your concluding paragraph strongly implies a follow-up essay spelling out the ways in which Islamic law would be helpful in resisting the march of the digital overlords to dominance
Sharia is to Muslims what Halakhah is to Jews and Canon is to Catholics. Determining liturgy, worship, holy days, prayer, fasting, dietary rules, or marriage customs.
However, neither Halakhah nor Sharia has a central dogmatic authority, both are rabbinical, unlike Catholic Canon. And Halakhah and Sharia have the same structure.
After all, all three are Abrahamic, with Judaism and Islam more so than Christianity.
And of course, none of these three would impose their religion on others, a Muslim imposing Sharia on non-Muslims is absurd. Maybe extremists might, but they don’t count.
And it should be said, to insist Muslims give up Sharia is to insist they give up their religion and beliefs, and any grounds used to argue such would necessarily also be applicable to Jews and Christians.
Sorry to post twice but I had to hunt this down among my bookmarks. A very old (2013) but also very good primer on why fear of Sharia is unjustified: https://thejewishobserver.com/2013/04/16/afraid-of-sharia/
Thank you for this reference article.
Famously, legal pluralism was practiced in late Habsburg Bukovina and Galicia (e.g., Lemberg/Lviv), as observed by legal sociologist Eugen Ehrlich. It would be quite common for Ruthenians, Poles, Jews, Germans, Romanians, etc to socialize in public spaces but each guided by distinct religious laws, customs, and “living law” norms. This coexistence of multiple normative orders did not preclude social interaction or civic peace, it was a pragmatic accommodation.
So, just as Habsburg subjects navigated overlapping legal systems without demanding total uniformity, Muslim communities today can uphold Sharia while respecting the prevailing legal order. There is no need for ideological absolutism.
Nuance is not something many Americans are familiar with and it makes them uncomfortable because it requires critical thinking.
Critical thinking is discouraged in the schools and in most social interactions, it is not “Respectable”.
Islam encourages it, something I have noted diving into the various meanings of Jihad and what consists of “Right Action” in the Muslim World.
Much of which i agree with, and much of which is consistent with what other faiths consider “Right Action” as a path to God.
Personally, I think phrasing the question as that of “Sharia Law” is misleading. If you were to rephrase the question as “how much respect should Western governments should have for asserted claims to communal rights by various religious groups under color of the putative religious requirements, that becomes a lot more relevant, with many real life examples.
Religious requirements have been claimed for all manner of dubious or even odious practices for various religions: animal sacrifice, drug use, carrying weapons to schools, honor killings, so-called “female circumcision,” underage marriage, polygamy, and so on. Several of these did involve groups that were Muslim and asserted that the practice is encouraged or even required by religious teachings. Taking the religious claim seriously places Western governments in an awkward place: they might take the claims of the people making these claims at face value and give them leeway, or they might actually investigate whether the claims of religious sanction are really applicable and rule accordingly. That many people might find issue with the former is obvious enough, but, personally, I found the latter to be even more troublesome. So it might be legitimately established that so-called “female circumcision” is really just a tribal practice in certain parts of the world and not a feature of Islam, say. But does this mean that the Western goverment dealing with this should rule against the claimants because they are not practicing “true Islam”? So the infidels in Western government basically arrogates itself the right to define what “true Islam” is, or at least, designate who has the right to define it? That seems rather rich and offensive, especially if I were a Muslim of any stripe. Much beter that the West pays zero respect to whatever it is that adherents of a given religion say that their religion requires of them: if they are not contrary to existing laws, that’s fine; but if they run afoul of them, throw a book at them and not entertain protestations that these practices have religious sanction–because that would involve Western governments in the business of what really is and isn’t sanctioned by these religions.
What I find even more interesting is when a Muslim religious practice is ostensibly legal, such as wearing a hijab, or a modest bathing costume, and the Western country makes such practices illegal post hoc, on the spurious argument that the practice oppresses women, while non-Muslim women could still wear a non-religious head covering or body-covering bathing costume, and not be prosecuted for it. The hypocrisy is so obvious that it’s depressing.
10/22/2004
“Over 800 people attended the seminar discussing the French ban on hijab implemented at the start of the school year in September. Salma Yaqoob representing the Stop the War Coalition, Christine Delphy of the French anti-ban campaign Collectif Une Ecole pour Toutes et Tous, Alex Gask, Liberty’s legal officer, Raghad Altikriti of the Muslim Association of Britain and Arlene Rodrigues of the Assembly for the Protection of Hijab addressed the meeting, outlining the impact of the ban and its context and calling for all those in support of human and civil rights to oppose the ban.
The week beginning 18 October saw the exclusion from some French schools of five girls who have refused to remove their hijab. The number is expected to rise to around ten by the end of the week.
Below is the speech Salma Yaqoob made to the ESF, London, Saturday Oct 16th 2004 ”
Hijab: A Woman’s Right to Choose
by Salma Yaqoob 2004
https://web.archive.org/web/20051212020004/http://www.naar.org.uk/newspages/041022.asp
https://www.whatnextjournal.org.uk/Pages/Back/WNext29/Hijab.pdf
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I remember back in 2004, I sent that speech to a young progressive woman who seemed to share in most respects my political views and “liberal” values, but I was taken aback, shocked really, by her immediate, furious, absolute dismissal of any idea of a “right to choose” when it came to a wearing a hijab.
I don’t disagree. In a way, it’s the other side of the coin, I think.
There are peculiar stereotypes that self claimed “enlightened” Westerners have about what the “other” people should be, both allegedly “positive” and “negative,” but usually absurd and insulting. The idea of women who are “forced” to wear hijab is one of them, as are various allegedly “positive” ones, I suppose (Can’t say what they might be off the top.) Personally, this is exactly why I find both “multiculturalism” and “democracy” deeply offensive these days.
Below is a breakdown of the primary restrictions imposed on Western and non-Muslim visitors in conservative Islamic nations, followed by a list of the countries that enforce them the most strictly.
1. Mandatory Dress Codes (The Hijab and Modesty Laws)
In several Islamic countries, the dress code is not merely a social expectation; it is codified law for all women, including Western tourists concerning Hijab, Abaya and Swimwear/Bikinis.
2. The Ban on Alcohol
The consumption of alcohol (khamr) is strictly forbidden in Islam, and many states apply this ban to tourists. from Total Bans: Saudi Arabia, Kuwait, Iran, Afghanistan, and Libya up to Partial/Tourist Bans: In places like Qatar and the Maldives.
3. Restrictions on Non-Muslim Religious Practices
The freedom to practice a non-Islamic religion is heavily restricted or banned in the most conservative states.
The Holy Cities: Non-Muslims are legally banned from entering the holy city of Mecca in Saudi Arabia.
Public Observance: Celebrating non-Islamic holidays (like Christmas or Valentine’s Day) in public spaces has historically been banned in countries like Saudi Arabia and Iran, though Saudi Arabia has recently begun relaxing these rules for commercial purposes.
4. Gender Segregation and Social Laws
Several countries enforce strict social laws based on Sharia that apply to tourists.
Public Affection: Public displays of affection (PDA), such as kissing or even holding hands, are illegal in countries like Saudi Arabia, Qatar, the UAE, and Iran.
Unmarried Couples: In many Middle Eastern countries, it is technically illegal for an unmarried man and woman to share a hotel room.
Summary of Strictness by State
Tier 1 (Absolute Enforcement on Foreigners): Iran and Afghanistan. Western tourists must follow the hijab law and absolute alcohol bans.
Tier 2 (Strict but Modernizing): Saudi Arabia. While they dropped the abaya requirement for tourists, they maintain the alcohol ban, strict modesty laws, and the ban on public non-Muslim worship.
Tier 3 (The Two-Tier System): Qatar, UAE (Dubai), Maldives. These countries maintain strict Sharia-based laws for their citizens but create designated “bubbles” (luxury hotels, private beaches) where Western tourists are allowed to wear bikinis and drink alcohol without facing arrest.
Majority of MENAPT region (Middle East, North Africa, Pakistan, Turkey) generally operates on what can be called a “Two-Tiered Tolerance System.” As these countries rely heavily on Western tourism for their economies (like Egypt, Morocco, the UAE, and Jordan). Therefore, they do not impose blanket bans like mandatory hijabs on foreigners. However, they maintain strict legal boundaries regarding how tourists behave to ensure that Western secular values do not “pollute” the public square.
This dynamic is often highlighted by European policymakers: they point out that Islamic nations actively demand compliance with their cultural and religious baseline from all visitors, and argue that European nations are justified in demanding similar compliance with Western secular values.
Although it is hard to argue agains strict non alcohol sharia law in EU “Vodka Belt” countries from state citizens health benefit point of view 🙂