Shariah Law in Context Case Studies

By Joe Bradford | 2025-12-18T21:51:40.237328+00:00 | Topic: Muslim Identity

Shariah Law in Context: Case Studies

Shariah Law in Context: Case Studies

Lecture by Joe Bradford

Introduction

(بِسْمِ اللَّهِ الرَّحْمَٰنِ الرَّحِيمِ - bismillahir-rahmanir-rahim)

So today we want to talk about some case law examples, actual court cases from the Islam, the corpus of Islamic law. Before we do that though, there are a few ground rules that we want to set and we're going to build on what we talked about yesterday with the maqasid al-shariah or the objectives of Islamic law.

Yesterday we talked about the objectives of Islamic law attempting to preserve faith, life, honor, family, mental health. And today we're going to see how in individual cases those precepts are used in conjunction with what we usually know about fiqh or Islamic law and we're also going to look at some instances of the process of Islamic law.

Because yesterday I believe in the Mardiya show we talked about how there's this concept that there's only an austere, very dogmatic application of rules and no nuance. So today we're going to see some of that nuance.

Distinguishing Shariah from Fiqh

So sharia is not synonymous with Islamic law. We talked about that yesterday. Sharia is the general precepts, principles, doctrines whereas fiqh is the individual application of that law in a specific context.

Also, it's a human endeavor. So the mufti, the faqih, the qadi is an individual. He's a human being. He is prone to error and he may make mistakes. Which is why the Prophet ﷺ said:

إِذَا حَكَمَ الْحَاكِمُ فَاجْتَهَدَ ثُمَّ أَصَابَ فَلَهُ أَجْرَانِ وَإِذَا حَكَمَ فَاجْتَهَدَ ثُمَّ أَخْطَأً فَلَهُ أَجْرٌ

(Bukhari 7352, Muslim 1716)

"When a ruler, a judge, or a mediator rules and he's correct he gets two rewards and if he is incorrect then he gets one."

Now we talked about the theological, substantive, and ethical principles of the sharia that remain the same but our Islamic law is subject to time, place, and extenuating circumstance.

The Nature of Fiqh

So in an individual case while ruling may be X in the sharia then the application, its application in fiqh may be different. Now when we talk about fiqh we're generally talking about the general understanding of the scholars of Islam. And this has been compiled into compendiums.

And in other legal systems this might be similar to what we call the black letter of law. And it can differ between venue and jurisdiction. So now in our Islamic tradition we have different madhahib.

And those madhahib generally were more fluid and they weren't set in strict regional jurisdictions as we have nowadays. But you can understand that somebody might go to the qadi of the shafi'iyya on a certain issue and there might be a qadi of the hanafiyya at the same time. And there were a few qadat in the history of Islam who actually were qualified in all four madhahib and would give fatwa and rule according to those madhahib.

Now each and every attempt by a mufti, a faqih, a qadi so a mufti, one who issues religious edicts, a faqih, a jurist, a qadi, a judge, or a mediator or an arbitrator, a muhakkim. They are all attempting to approximate what Allah and His Messenger want from us in that particular instance. And because of that they have discretion on how the law is applied to a certain extent.

Clarifying Misconceptions About the Quran

Now I want to draw your attention to this slide right here because this has actually come up in the news recently. There was an interview on CNN between an individual who is a political commentator on TV, Kaylee something, I'm forgetting her last name right now and Reza Aslan. And she claimed that there is academic proof that over 85% of the Quran has to do with legalities and has to do with a legal system.

And this is an attempt by detractors of Islam to strip the Muslim community of their religious identity and pin them with a political identity so as to deny them the freedom of religion in the United States. So be very careful about what you hear about these issues.

I bring this up to say, if you look at the Quran and take all of the different verses of the Quran, the 6,000 some verses of the Quran:

Breakdown of Quranic Content:

• 22% - Issues of Iman and Aqidah (faith and belief)

• 14% - Concept of Ummah, community and congregation principles

• 13% - Issues of Akhlaq (character)

• 11% - Al-Qasas (stories in the Quran)

• 11% - Pedagogy and education

• 11% - Wa'af (admonition and exhortation)

• 7% - Law (what we would consider to be law)

• 0.609% - Uses the word Qital (fighting)

• 0.417% - Uses the word Jihad (about 1/3 of which refers to ideological arguments, not physical altercation)

• 0.096% - Uses the word Nafir (deployment of troops by a sovereign state)

So the idea that the Sharia is somehow or that the Quran is somehow completely focused around legalities and animosity through those legalities to other people is just patently false.

Understanding Quranic Interpretation

So the Quran, is it the literal word of God? This is something that we hear. I prefer to say that it is the immutable word of God. Meaning that the text of the Quran does not change and we read it as it has reached us from the Prophet صلى الله عليه وسلم. But the meanings of the Quran are interpretive and therefore a single verse can have more than one meaning.

And then here are two things that we do when we want to go from the text of the Quran to the context. We have to look at several factors:

1. Historical context

2. Theological context

3. Cultural context

4. Literary context

Example of Cultural Context

For example Allah جل جلاله says in Surah Al-Baqarah: "And do not be like the woman who after spinning her yarn then picked it apart." Most of us will read this verse and have no idea what it is talking about.

None of us have any idea what spinning yarn is and what the process is unless of course you're familiar with that children's story - Rumpelstiltskin. That's the only instance in my entire life that I remember somebody spinning yarn. She was told to spin the hay into gold.

So this is a metaphor that's used in the Quran which was very relevant to the Arabs at that time in their cultural and historic context saying, don't do something, put it together and then break it apart thinking that you're doing good.

Right? So don't come into faith and then pick it apart thinking that you're doing good. For kids, don't build a galactic starship out of Legos, Star Wars Legos, and then as soon as you finish building the whole thing you smash it with a bat. Right? That would be completely counterproductive.

That can only be understood, however, when we read the Quran in its cultural and historic context.

Three Levels of Understanding

So we have three levels of understanding of the texts. Whether they be the Quranic texts the text of the Sunnah, the text of the scholars that are found in Islamic law:

1. Layman's understanding - which each and every one of us can understand

2. Learner's understanding - Those of us who are still learning, we understand what the meaning is

3. Expert understanding - who understands why it's meaningful

Kind of similar to what we were talking about yesterday between what something means, when it has meaning, and when it is meaningful.

The Scope of Islamic Law

Now when we look at the entirety of Islamic law, we can see that in general it's divided up according to this breakdown:

65% - Non-Judicable Issues (Custom/Convention/Culture)

• How we purify ourselves

• How we pray

• How we fast

• How we make pilgrimage

• Food and drink (halal and haram)

• Vows and oaths

These are issues that cannot be decided at court. If you choose to not fast a day in Ramadan, no one can take you to court for not fasting. If you miss a prayer, no one can say "state vs. Joe Bradford for not praying."

20% - Contracts and Transactions (Judicable)

• Contracts

• Partnerships

• Endowments

• Similar transactive issues

10% - Probate Law

• Law of inheritance (al-fara'id or al-tariqa)

• How estates are divided

5% - Family and Judicial Matters

• Marriage and divorce

• Custody

• Adjudication (law of the court)

• Penal code and sentencing

• International relations

Notice when we talk about the verses of the Qur'an and the context of fiqh they're very very similar in the amount that they actually align on these percentages.

Rights in Islamic Law

There is a concept of man's rights vs. God's rights before we go forward. Generally, they line up with common law in that:

• Man's rights are similar to private rights

• God's rights are similar to public rights

حقوق الله وحقوق العباد

Anytime there is a private right and there is an offense against them, you have the ability to adjudicate that, you have the ability to litigate that in court, take someone to court, and there might be implied sentencing and implementation.

When we talk about criminal punishments as a public right, this is solely vested in the state. This is only for a sovereign Islamic government to make decisions on. Now, it's also referred to in the Quran and the Hadith as حدود الله the boundaries set by Allah.

Addressing Fear-mongering and Takfir-mongering

And I want to draw your attention to something very important. When we talk about, although there is a lot that is said about Islam being barbaric, or Islamic law, or Sharia law, all this fear-mongering. So we have two things actually.

We have fear-mongering from non-Muslims about the implementation of Islamic law and the practice of Islam. And then we have takfir-mongering. A friend of mine coined this term.

• Fear-mongering are people from outside of the community saying, "you people are just unbearable and we shouldn't be trying to implement anything of Islam."

• Takfir-mongering are people in the Muslim community saying, "you people are terrible and we should not be trying to implement anything of Islam."

Because when you say that that's wrong, they say, "why are you doing takfir on me, bro? Don't takfir me." So this idea of political takfir, when you differ with them on political issues, because of their lack of sophistication and knowledge of these issues, they will throw that out for anyone practicing their faith as somehow excommunicating anyone that disagrees with them. It's a very dangerous concept and it needs to be reined in because people are using it and stigmatizing large swaths of our community.

The Reality of Prescribed Punishments

So there should be no stigma, no blame for anybody that wants to follow a more conservative opinion in our community. That has to be done away with. So the punishments that are laid out in the Quran and the Sunnah that are implemented in Islamic law that are executed and applied by Islamic courts and the subsequent government agencies that follow them are actually very few.

There are only about seven in number. Now compare that to the common law system when in England you had for example 200 punishable offenses that were capital punishment offenses on the books until

Popular Assumptions About Islamic Law

Now there are a lot of popular assumptions about Islamic law and we're going to cover these which is seven cases today.

Common Misconceptions:

  1. Spousal abuse is de facto permitted by Islam
  2. Women's inheritance - women always take less
  3. Female genital mutilation - encouraged if not obliged
  4. Public intoxication - every time the person must be flogged
  5. Adultery is stoning
  6. Theft is amputation
  7. Slavery is a preferred status

These are all assumptions that people make about Islamic law. Both Muslims and non-Muslims make these assumptions based upon a very limited reading of the sacred texts of Islam and a very limited knowledge of the heritage of Islamic law.

Case Studies

Case 1: Theft - Muslim Citizen vs. the Second Caliphate

(Recorded in the Muwatta of Imam Malik)

Facts: A farmhand is caught stealing a camel. When interrogated he admits and he is sentenced to having his hand cut off.

Development: After being presented for sentencing the farmhand says "yes I did steal. But the reason why I stole is because the person who hired me on the farm would not pay me my wages and I was unable to eat and feed my family." When the employer is brought to court at sentencing to confirm the facts which were left out of the original case he admits "yes I haven't paid him."

Rule of Law: The principle of duress is that it absolves one of legal responsibility. In the Quran Surah Al-Baqarah verse 173:

فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ
(Quran 2:173)

"So whoever is coerced seeking not transgression or infringe then there is no sin upon him."

Holding: The accused admission of guilt that he stole a camel is vacated. And he is not sentenced because it was due to him being coerced or in a state of duress where he had no other choice in life except to steal something to be able to feed himself and his family. The punishment was mitigated from the person that was originally accused. And the person who denied him his wages, his employer was fined double the cost of the camel as punitive damages.

Case 2: Female Genital Mutilation - Wife vs. Husband

(Years 656-661 during the Khilafah of Ali ibn Abi Talib, mentioned in Al-Kafi and Al-Turuk Al-Hukmiyah)

Facts: A woman presents herself against her husband claiming bodily harm. When investigated, it is found out that he had actually taken and mutilated her vagina.

Rule of Law: Any time there is bodily harm it's a criminal act. And there are compensatory damages that are due at minimum. The general rule for bodily harm is that if you deny somebody a faculty which is essential to their quality of life, it is as if you have killed them.

Reasoning: Any bodily part of which there is only one and is essential for personal benefit is awarded compensatory damages equal to involuntary manslaughter.

Holding: Ali ruled that this husband had to pay compensatory damages equal to involuntary manslaughter, which would have been the diya, the blood wit for killing (100 camels - equivalent to 100 Bentleys today). Also he had to support her financially until she died. The first was because of his mutilation of her. The second was as an extra discretionary ruling to deter him and anyone else that would ever think of doing that again.

So the idea that somehow female genital mutilation is encouraged or supported by the Sharia is patently false just from our reading of Islamic history.

Case 3: Falsified Emancipation

(Ottoman era)

Facts: A slave comes to a judge and says "I have proof that I am free." He presents documentation to the judge and the judge says "based on this documentation you are free. I have freed you in the name of the state." Later on this man admits he completely made up the documentation - "I lied. I actually was a slave but I just wanted my freedom."

Question: What happens? Is he returned to slavery?

Rule of Law: As al-Bazazi al-Qurdi says in this case because الشريعة تتشوف إلى الحرية - "The Sharia seeks emancipation as an objective." It looks for, it seeks freedom.

Holding: He is not returned to slavery. Even though the documentation was false, the ruling of the judge - the declaratory judgment of the judge - is implemented and is not reversed. The judge acting on behalf of the state has made the state liable for any mistakes in the case. The purpose of Islamic law is not to enslave people and perpetuate slavery. The purpose of Islamic law is to free people and perpetuate freedom.

Case 4: Women's Inheritance

Almost every time the idea of inheritance law is mentioned, people will say, "well you know, I'm not sure that I want to do Islamic inheritance because the women always get less."

Guess who I get that from the most? The husbands whose wives have died. You know why? Because they know that their wife had a ton of gold saved up in the house and if they say, "we want to divide it according to Islamic law," then he's not going to get as much of it as he wanted.

So men manipulate these issues of inheritance and the supposed injustice to women more than women do. This is my experience in dealing with inheritance cases.

Reality: There are several instances:

Important principle: In every single instance in which a woman takes less than the man, she has a preemptive right to maintenance from that man. The daughter is not responsible for her own maintenance and the son is responsible for maintaining that daughter. She has a preemptive right to be maintained and not spend from her own money.

It's intricately tied with the idea of nafaqah and maintenance in Islamic law which is why it's very important that when you're studying Islamic law you do not study one issue to the exclusion of all others.

Case 5: Adultery Case - Mamluk Court

(Around 1500s)

Facts: A royal minister in the Mamluk court in Cairo is found necking with a woman in some hallway. When apprehended by royal guards, the news goes back to the Mamluk ruler, Qatbay. Qatbay tells his guards "beat him until he admits to what he truly was doing, which was committing adultery." So they beat him to get them to stop beating him. He admits to adultery.

Court Analysis: The judge analyzes the case and says that it is clear there was coercion of admission of guilt. He was coerced to admit to guilt because in front of me he said he never committed adultery and

that he was beaten and the only reason that he said that he admitted to adultery was so that the beating would stop.

Prophetic Principle: The prophetic principle governing issues of recanted admissions is the Prophet's statement in a Hasan Hadith:

(Al-Bayhaqi, from Ali) ادْرَقُوا الْحُدُودَ بِالشَّبُهَاتِ

"Mitigate punishment through the presence of doubt."

So Islamic law contains the idea of reasonable doubt. His recanting the admission coupled with the method by which the admission was obtained is sufficient doubt to say that he was not guilty.

Holding: The ruling was passed that he would remain safe in his person and property and be allowed and set free.

Political Aftermath: When set free, this enraged Qatbay who wrote to the judge demanding he re- decide the case. The judge refused, saying "I believe in what my Prophet said. I believe that we have to mitigate punishments because of reasonable doubt." The people of Cairo supported the judge. Eventually the accused was killed and the judge was stripped of titles and exiled to Gaza, where he died refusing to recant his principled ruling.

Case 6: Spousal Abuse - Saudi Arabia 2002

Facts: A woman accused her husband of beating her and abusing her verbally. She took him to court. She presented medical reports showing that on the night she claimed she was beaten, she had bruises and damage to her facial structure.

Court Proceedings: The judge asked the man, "is that true?" And he said, "well I only beat her and I only cursed at her because she cursed at me and made me feel bad."

Rule of Law: "Live with them equitably." The principle of Islamic law is that in the face of physical evidence, a man accused of spousal abuse is guilty until proven innocent. This is one of the few issues in which innocent until proven guilty does not take effect because of the nature of the relationship.

Holding: Based on the medical reports, the judge ruled in favor of the wife. He ruled that the husband was guilty of abuse, had to pay $9,000 of compensatory damages for injuries, and receive 30 lashes for his insulting language.

The court distinguished that when asked what he did, the husband admitted to verbal abuse. When he accused her of verbal abuse, she never admitted to it and he never presented any evidence to the contrary.

Case 7: Public Intoxication - Saudi National in Madrid

Facts: Saudi nationals arrested in Madrid for public drunkenness, brandishing a weapon, and brawling in the street. After investigation, Spanish authorities repatriate him to Saudi Arabia.

Defense: When pressed by Saudi authorities, he said the "weapon" was actually a toy gun bought for family. When they said he drank alcoholic beverages, he said "I wasn't drinking alcoholic beer, I was drinking non-alcoholic beer" (common in the Muslim world - brands like Feyrouz, Barbican).

Appellate Court Analysis: When the judge looked at police reports and court reports from Spain, he said "I can find no admission of guilt, and now that I've asked him, I find no admission from him. He's saying he was simply drinking non-alcoholic beer, which is very common."

Holding: The court found that the evidence presented was insufficient to charge the accused with the crime of public intoxication. However, due to the questionable circumstances of being arrested and repatriated, the judge used discretionary power to fine him and jail him for a certain time to deter others from falling into similar situations abroad.

Islamic Law in the United States

When we talk about Islamic law and U.S. law, there's the idea of al-aman. Ibn Qudama, Rahimahullah, in Al-Mughni, one of the major books of Islamic law, says:

"Whoever is permitted to safely enter an opposing land, then he must not betray them financially, be disloyal to them. Being disloyal to them is forbidden. This is because they were allowed to enter with the condition that he not betray them and that he make them safe in their persons from his actions. Even if this is not explicitly stated, it is understood and meaning. It is impermissible to deceive them as deception is not befitting of our faith, as the Prophet صلى الله عليه وسلم says Muslims are to fulfill their conditions."

This has a relevant parallel in Talmudic law, which is that the law of the land is the law. So Muslims entering into another land are subjecting themselves to the laws of those lands. And so when you are a citizen that is born here, there is an implicit agreement to that. And when you migrate or travel here as a visitor, there is an implicit agreement to that.

When is Islamic Law Applicable in the US?

The general principle is that anything that relies on the sovereign power of the government cannot be implemented by the individual or the community.

So your jama'ah, your congregation, your masjid, your shaykh cannot say that "I am the sovereign Muslim ruler here in Parsippany, New Jersey," and then start to mitigate or to mete out punishments to those people that he sees fit. This is something which can only be done by a court system underneath a sovereign state.

They cannot adjudicate disputes in these things, and they can only act as arbiters, they can't act as judges, they can only act as arbiters when arbitration is valid.

When is Arbitration Valid?

Arbitration is a contract between two consenting adults, which means that only private rights between two parties can be adjudicated. It can only be between private parties. It excludes any public authorities and excludes anything that has to do with:

What Can Be Applied?

Back to our breakdown of Islamic law:

In essence, about only 15 to 20 percent of what we would call Islamic law, and only about one third of what would be considered actual law if we were to look at common law, would actually be applicable, and it would only be applicable when it is between two private parties that are consenting adults.

Conclusion: Is Islam Different?

The argument being made by those that have problems with Islam as a political and judicial system, and also have a problem with Muslims as a faith community, and also have a problem with Muslims simply existing, is that they want to say that Islam is different. It's somehow different than everything else.

Freedom of speech and religion under the U.S. Constitution is not limited to people whose beliefs align fully with constitutional guarantees. So, I can say I completely disagree with the right to bear arms. And that's still protected under the U.S. Constitution, even though the right to bear arms is part and parcel of the Constitution.

Historical Parallels

Alabama, Texas, Kentucky, Oklahoma, there have been anti-foreign laws that have been tried to be passed in these states. Alhamdulillah, most of them have not been able to pass. They're predicated on Islam not being a religion, but on being a political system. And they've been stricken down as unconstitutional, or quashed even before vote.

This happened before. This happened in the 19th century with nativist movements and with the Ku Klux Klan. Where Catholicism, Catholics, were considered un-American. And their allegiance was to the Pope. And they were somehow not going to be good Americans. And it happened with the Jewish community as well, before them. And it happened with the African American community before them.

So, there's always this group that's targeted in the United States as not being American enough. And it's simply our time as Muslims.

Traditional American Legal Principles

Many of the claimed intrusions into American law are actual applications of traditional American legal principles. Traditional legal American principle is the freedom of contract.

And in Islam, if I want to write a contract which designates that I give my wealth in a way that is consistent with the Islamic law, then that is my freedom to do so as an American. And it has no bearing on you and your freedom to do so in any other way, shape, or form.

Historical Muslim Presence

From as early as 1785, Muslims were a sizable enough presence in the United States to be considered mentioned in the state assembly of Chesterfield County, VA.

Final Thoughts

Sharia is all-encompassing. It is a dynamic legal system. It spans multiple continents, approaches, and centuries. Its application is dependent on time, place, and surroundings and individual circumstances.

Islamic law in the United States only applies to contracts entered by consulting or consenting adults. And the shocking, hyperbolized examples are far from reality and are reminiscent of bigotry that's found in the not-too-distant past.

جزاكم الله خيرا. والسلام عليكم ورحمة الله وبركاته