Sharia and Egypt: what it means, or may mean

The Carnegie Endowment has a meaty Q&A.

Among other things it explains why sharia is not going away any time soon:

What is the Islamic sharia?

The term “Islamic sharia” has subtly different denotations and sharply different connotations in Egypt than it often does in the United States or Europe. There is a reason many scholars insist that defining it as “Islamic law” (as it is often described in non-Muslim countries) is sometimes overly narrow. Sharia includes large areas of personal conduct not generally covered by legal rules in many societies (such as the regulation of prayer or ritual purity). Not only does it blend private practice, ethics, and public law, but it also includes categories such as detestable (but not prohibited) or preferred (but not required) that make ethical but little legal sense. A vaguer but more accurate translation might be “the Islamic way of doing things.”

And that is the definition accepted by many who follow sharia. Such a translation makes clear why the Islamic sharia is hard to oppose. It is one thing to questionhudud punishments (for serious crimes) by claiming to wish to follow the spirit but not the letter of traditional understandings. It is something quite different to proclaim that one prefers to do things in a non-Islamic manner or that Islamic teachings have no relevance in public life. It would be as unexpected as U.S. politicians claiming they prefer the “un-American way.” Public opinion polls on the subject provoke the same response among the broader society.

Of course, the Islamic sharia is not merely the equivalent of a flag pin for a politician’s lapel; it has enormous practical and not simply symbolic content. But observers should not expect many calls to abandon the Islamic sharia in Egyptian political debates.

There is another terminological oddity that can shed some light on the connotations of the Islamic sharia: following Egyptian usage, I have been referring to “Islamic sharia,” a phrase that seems almost comically redundant in English, like referring to a “Jewish rabbi.” A non-Islamic sharia might seem to be something like a “Protestant pope.” But Egyptians will sometimes refer to other religious communities as sharias.

Sharia and American law

Salon interviews an American Muslim lawyer, Abed Awad, on What sharia law actually means: 

Can you give a couple examples of when sharia has come up in cases that you've handled?


In the past 12 years as an attorney, I have handled many cases with an Islamic law component. U.S. courts are required to regularly interpret and apply foreign law -- including Islamic law -- to everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, probating an Islamic will and the damages element in a commercial dispute. Sharia is relevant in a U.S. court either as a foreign law or as a source of information to understand the expectations of the parties in a dispute.
Suppose a New York resident wife files for divorce in New York; her husband files for annulment in Egypt claiming the parties were never validly married. A New York judge must determine whether he has jurisdiction and whether state law governs this dispute. If the conflict of laws of New York requires that Egyptian law govern the issue of validity, the court would require expert testimony about Egyptian law that is based on Islamic law.
Another common use of sharia in American courts is in the enforcement of Muslim marriage contracts. Like the majority of Americans, Muslims opt for a religious marriage ceremony. In every Muslim marriage, the parties enter into a Muslim marriage contract. The contract includes a provision called mahr, which is a lump sum payment from the groom to the bride that, unless otherwise agreed, would be due at the time of the husband's death or the dissolution of the marriage. An American court would require expert testimony to understand what a mahr is, what a Muslim marriage contract is, and to better understand the expectations of the parties at the time of the contract. All of this would be necessary for the court to determine whether the contract is valid under state law.
Is sharia used in U.S. courts any differently than other foreign or religious systems of law? 

No, it is utilized the same way as Jewish law or canon law or any other law.
A lot of critics of sharia have cited a case in New Jersey in which a husband cited sharia to argue that he did not rape his wife. What happened in that case? 

The case is S.D. v. M.J.R.  It's not about sharia as much as it is about a state court judge who failed to follow New Jersey law. In this case, the plaintiff-wife sought a restraining order against her husband, alleging that his nonconsensual action constituted physical abuse. She testified that her husband told her repeatedly that, according to his religion, she was obligated to submit to his sexual requests.
The trial judge refused to issue the restraining order, finding that the defendant was operating under a religious belief that he was entitled to have marital relations with his wife whenever he wanted. Thus, he did not form the criminal intent to commit domestic violence. But, of course, the appellate court reversed the trial court decision, holding that the defendant's nonconsensual sexual intercourse with his wife was "unquestionably knowing, regardless of his view that his religion permitted him to act as he did." The appellate ruling is consistent with Islamic law, which prohibits spousal abuse, including nonconsensual sexual relations. A minority of Muslims mistakenly believe that a husband can discipline his wife with physical force in the interest of saving the marriage and avoiding divorce.
What about stoning, which critics also claim is part of sharia?
The Quran does not provide for the stoning of adulterers. The punishment prescribed in the Quran is lashing. However, there is a prophetic tradition that adopted the Jewish custom of stoning adulterers. Many people describe the American legal system as having a Judeo-Christian heritage. Does that mean that we will stone adulterers as required in the Bible? No.
As long as a provision in Jewish law, canon law or sharia does not offend our constitutional protections and public policy, courts will consider it. Otherwise, courts would not consider it. In other words, foreign law or religious law in American courts is considered within American constitutional strictures.
What do you make of these state-level efforts to ban consideration of sharia in American courts? 
Other than the fact that such bans are unconstitutional -- a federal court recently held that a ban would likely violate the Supremacy Clause and the First Amendment -- they are a monumental waste of time. Our judges are equipped with the constitutional framework to refuse to recognize a foreign law. In the end, our Constitution is the law of the land.
The only explanation is that they appear to be driven by an agenda infused with hate, ignorance and Islamophobia intent on dehumanizing an entire religious community. That a dozen states are actively moving to adopt anti-sharia laws demonstrates that this is part of a pattern. This is not haphazard. Someone -- a group of people -- is trying to turn this into a national issue. I believe this will become an election issue. Are you with the sharia or with the U.S. Constitution? It is absurd.