Understanding the Complexities of Sharia Law in the Modern Context

The question of whether one would want to live under a “Soviet communist regime” is likely to elicit an immediate, negative response from many in the United States. However, this question is inherently complicated, steeped in decades of ideological and political tension. Similarly, asking Muslims in the West if they wish to live under Sharia law carries connotations of conflict and misunderstanding, implying a stark difference between Islamic and Western legal systems. The reality is much more nuanced.

This complexity surfaced in a recent online debate, sparked by comments from Shaykh Mohammed Amin Kholwadia, a prominent Islamic scholar based in the U.S. While speaking at the Rayburn House in Washington, he asserted that “Muslims do not subscribe to Sharia law in the United States.”

Kholwadia elaborated that “there are laws for Muslims in a Muslim country, which encompass total Sharia, and they must adhere to it. In contrast, Muslims in a non-Muslim country like the USA operate under different laws.” He emphasizes that, according to traditional Islamic principles, Muslims living as minorities in non-Muslim nations are not permitted to advocate for the enforcement of Sharia law.

This viewpoint may seem straightforward but can be perplexing for many Muslims, primarily due to the ambiguous interpretations surrounding the term “Sharia.”

In its original Arabic context, “Sharia” refers to a path or road. It is generally perceived as the route to God for Muslims, akin to what is referenced in the Quran (45:18). For any devout follower of Islam, following this path is undoubtedly a goal. In a broader sense, Sharia can be seen as how a Muslim interprets their life role in relation to the universe and fellow human beings.

However, “Sharia” also has a specific technical definition: a collection of rules and judgments developed over centuries from primary sources by Islamic scholars, known as “Fiqh.” This body of jurisprudence has historically governed Muslim-majority societies and has adapted to meet ongoing and new societal challenges.

Kholwadia’s assertion rests on this latter meaning of Sharia, indicating that Muslims in the West cannot call for its implementation, given that they reside in environments with distinct legal frameworks that the majority population observes. This standpoint is supported by traditional Islamic scholarship. A recent article by a U.S. Muslim scholar defending Kholwadia states:

“Abu Hanifah, in 8th century Kufa, near the tomb of Mukhtar al-Thaqafi, taught that ‘Abdullah bin Masud and Umar bin al-Khattab argued that the Shari’ah outside of the Umayyad empire necessitated different regimes if they lived under non-Muslim rule.”

While these references may seem dense, a quick search will reveal their stature among early Islamic authorities, demonstrating that Kholwadia’s stance is not merely contemporary or fringe.

However, as often is the case with religious interpretations, differing opinions exist. A counter-article published on Substack challenges Kholwadia’s views, asserting:

“Claims like ‘no Muslim jurist in his right mind will ever tell his followers that you must abide by Sharia law in the USA… This is not allowed. In fact, it’s a sin.’ are evidently blasphemous, showcasing an ideological inferiority complex regarding Western thought.”

Here, the author criticizes Kholwadia for apparent adherence to Western secular legal principles. They contend that there is no division between what Islamic law deems a “sin” and what is “illegal,” since illegality is viewed as a sin by divine legislation. While this argument holds some merit, it overlooks the fact that many Sharia rulings arise from scholarly elaboration on a limited number of primary Islamic sources.

This discussion highlights a vital gap in defining “Sharia,” which neither Kholwadia nor his critics fully articulates. When Muslims are asked about their feelings toward Sharia law in the West, many might reply positively when considering it as a spiritual path toward God. Conversely, political pundits and pollsters often interpret the question in terms of concrete legal systems.

Ultimately, the dialogue about Muslim perspectives on Sharia often misses the fact that, in a Schmittian framework, traditional Islamic law may not function as an applicable legal system in today’s world. Instead, Sharia often serves as a guide or ethical compass, rather than as a standard legal authority.

Implications of a Contemporary Islamic Nomos

To expand on this, we must consider the political and geopolitical implications. Referencing Carl Schmitt’s theory, a nomos—a foundational legal order—emerges from applying a legal understanding to a specific territory. Traditional Islamic nomos transformed when the Prophet Muhammad moved from Mecca to Medina and exerted control over the land.

All historical shifts in nomos have occurred through either gradual evolution, as seen with the Roman Empire’s transition to Catholicism, or sudden upheavals like the French Revolution. Similarly, the founding of the United States represented such a transition.

When Western settlers arrived in North America, they changed land ownership concepts significantly, imposing a legal framework that was completely alien to Native American societies. Contrary to the assumption of backwardness attributed to Native American systems, the arguments in The Dawn of Everything reveal their sophisticated social organization intentionally avoided Western hierarchical structures.

When I suggest that a functional Islamic nomos is absent today, I mean that, following the collapse of the Osmanli Devleti, much of the Muslim world experienced colonization, fundamentally altering its legal and property systems.

Take, for instance, the Islamic Waqf law. This system governs foundations and serves as a means to legally assign property to God. The concept, initially established by the Prophet Muhammad, allowed for property to be used for public benefit—whether for hospitals, educational institutions, or community services. This model was effective across the Islamic world, with large areas becoming Awqaf.

However, Western colonization dismantled this model, often misattributing land ownership to the state and undermining the autonomous nature of the Waqf. This shift was essential for creating centralized governance; otherwise, much of civil society could thrive independently of state control.

Through colonization, the Islamic economic system—traditionally forbidding interest and usury—was supplanted by Western banking practices, changing civil laws fundamentally. Now, in Muslim-majority countries, the legal landscape resembles Western systems, as these nations adopted or inherited foreign legal models.

In the present context, referring to Sharia law as an all-encompassing system appears anachronistic. The everyday experiences of Muslims in Riyadh may not differ vastly from those in London. There are some cultural perks, like the presence of mosques and calls to prayer, yet, at the core, the structure and challenges of daily life bear striking similarities.

For these reasons, while I find merit in Kholwadia’s argument regarding how Muslims interpret Sharia as minorities, I extend that observation to Muslim majority contexts as well, as they also do not live within a true Islamic nomos. This notion echoes the views of Columbia Professor Wael Hallaq in his work The Impossible State, where he posits that the modern nation-state concept is fundamentally incompatible with Islamic tradition.

Yet, critiques aimed at Kholwadia hold validity—not necessarily based on the arguments present in the referenced articles, which I view as flawed, but because I believe that foundational Islamic principles regarding property, freedom, and standing against oppression can offer valuable insights in navigating contemporary challenges posed by modern, digital societies, such as government oversight and private digital currencies.