Sharia Court

The very term Sharia conjures negative images in the minds of many Westerners, in part due to its association with extremist groups. However, an in-depth look at Islamic law, as practiced in the vast majority of Muslim-majority countries, reveals that it is interpreted in different ways depending on the country, its culture and the very people conducting the interpretation.

Emilia Justyna Powell

Notre Dame’s Emilia Justyna Powell, an associate professor of political science and concurrent associate professor of law, an expert in both international law and the Islamic legal tradition, traveled to many Muslim-majority nations to research how the two systems work together in practice. Her findings were published earlier this year in the volume Islamic Law and International Law: Peaceful Resolution of Disputes.

Powell uses the differences in how women dress in various Muslim-majority countries as an analogy for the various interpretations of Sharia.

“A perfect visualization is women’s head coverings. The Taliban encourages women to cover top to bottom, not even showing the eyes. In Saudi Arabia, sometimes eyes are visible but not much else,” she said. “I was recently in Bahrain where I witnessed a new trend: Women are unzipping their abayas and you can see Western-influenced clothing underneath like jeans, ruffles and lace. Many women don’t wear the hijab scarf there and some only wear it halfway on. But who’s to say which is correct? Bahrain is no less Islamic than Saudi Arabia, for example, just different. People in all Muslim-majority countries interpret and, thus, practice the Muslim faith differently.”

International law itself is based on a broad set of norms agreed upon by people from many different nations and cultures. It is also heavily based on Western law which, itself, has deep roots in Christianity — a religion that originated at a time when Roman law was already well established. “Islam, on the other hand, had no a priori legal system to work with other than unwritten tribal customs,” Powell writes. And, while international law has moved to a more secular model, Islamic law remains based in the writings of the Quran and the sunna as well as ijma (judicial consensus) and qiyas (analogical reasoning).

“However, disconcerting the dissonance between the Islamic legal tradition and international law may appear, there are more similarities between these two legal systems than the policy world and the scholarship take into account,” she writes.

By its broad nature, international law allows for interpretation based on norms in individual countries. And many Muslim-majority states have their own declaration of human rights, she notes.

“Sometimes international law promotes the peaceful resolution of disputes, but does not give specific rules or cite specific laws for how to do so. Countries can mediate, peacefully, via negotiation in compliance with international law. Sometimes Muslim-majority countries will also sign international treaties but place restrictions on them — what are technically called ‘reservations.’”

For example, some Muslim-majority countries use reservations to remove “freedom of religion” clauses, because their religion is inextricably part of their culture, with the assumption (often part of the country’s own understanding of human rights) that many of their citizens are all Muslim. In this way, Powell says, they are complying with some international norms but allowing for their identity to remain intact.

Powell also examines how Muslim-majority nations in different geographical areas use Sharia and work within the international law framework. In general, Powell finds that if an ILS (Islamic Law State) country has a secular court system and their constitution mentions peaceful resolutions of disputes, they possess a more favorable attitude toward international courts.

“The Islamic milieu is not a monolith. In each of the ILS, secular law and Islamic law coalesce to create a unique legal framework. Every one of the ILS is different in how it negotiates the relationship between these two legal forces — the religious and the secular — along with their respective differences in socio-demographic and political characteristics. Historically, every one of the ILS has worked out its own unique answers to the question of the balance of Islamic law and secular law,” she writes.

The examples Powell gathered through interviews shed light on the cultural and religious lenses through which many Muslims view courts.

“One of my interviewees, former Jordanian Ambassador Omar Rifai, explained to me, ‘Through the court you are talking to an enemy. When you are talking directly, it could be a brother or a cousin, but when you resort to the court, it means you have given up on finding a peaceful solution or a solution between friends or brothers.’” she writes. “This statement describes relations between individuals as well as ILS collectivities. Even though Islamic law and international law put a premium on peaceful resolution of disputes, each of these legal systems has a different conception of this process. On the individual level, people who carry on the Islamic legal tradition simply embrace unique values promoted by Islam.”

Powell’s interest in researching Islamic law further is driven, in part, by the bias she sees toward Western law to the point of absolute exclusion of any facets of Islamic law in international law. In fact, some international court judges she interviewed were irritated when she asked if they would ever consider referring to parts of Sharia.

“Out of all the religions of the world, we’ve contributed to a large-scale misunderstanding of their legal tradition,” Powell said. “Islamic law and international law share many more similarities than they are given credit for.”