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Sharia and Law of the Land

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Jonathan Brown

Channel: Jonathan Brown

Episode Notes

Dr. Brown gave the talk on December 26th, 2016 at the 15th MAS ICNA Convention (Chicago, Illinois)

“Islam respects the law of the land and the local cultures and traditions, but are there restrictions? Are all man-made laws violating shariah law? What should Muslims do when the law of the land and shariah come into conflict?

Episode Transcript

© No part of this transcript may be copied or referenced or transmitted in any way whatsoever. Transcripts are auto-generated and thus will be be inaccurate. We are working on a system to allow volunteers to edit transcripts in a controlled system.


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So I want to come

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out of town or Jim's Mother of mother him. Thanks very much for inviting me to speak here.

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Those are a lot of specific things you want me to talk about? I think I'll try. So basically this talk I, originally I wrote it on my phone while I was pushing my kids to the park. Probably not the most responsible parenting.

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But anyway,

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it's a very important topic, people.

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People think about it a lot. And I wanted to kind of just run through what are some of the areas of where this issue appears, is areas of law this issue appears and talk about kind of what Muslims obligations are.

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First thing to keep in mind is that Muslims are required to follow follow the commands of the ruler in Arabic, it's Sultan, or hakam, or Mmm, it's, I hate using the word state because

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it's sort of state worship. And I feel like Muslims use this as a easy way to get out of any kind of problems they share with the state will do this state law. I don't like that word, but it's the Arabic word is still taught, or this will call on the authority, the ruling authority so that Muslims are required to obey the ruling authority, provided the ruling authority doesn't command and to do something that's against God's will. And that's, that's true, whether the ruling authority is Muslim or non Muslim. Right, the Quran says, obey God and obey the prophet and those in authority amongst you

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know, and we know that that's a comment but then the Prophet restricts this and reminds us in a hadith in Sahih, Bukhari and other collections that in the mountains within maruf obedience is only in what is known to be right. And this is then absorbed into a principle in Islamic law of chi though that were dhaba that

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law taught in my philosophy, massive phallic, you cannot obey a created being, if it disobeys God, the Creator, obviously, if someone has got a gun to your head and says, you know, drink this beer, you can drink the beer, but I mean, in general. So just a principle, regardless of whether you're Muslim living in, you know, eighth century in the 1800s, in Baghdad or in Egypt today or in America today is that you are obliged to obey the ruler or the authority provided that it doesn't require you to do something that disobeyed God.

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Well, what happens if the ruler commands you to do some minutes against the Sharia?

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What are the what? Now, I want to get into some details there. But let's just say just generally what happens for example, what happens is the government says you need to

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drink wine every day dinner is a legal requirement to drink wine every day there and you need to bow down and kiss the feet of this idol.

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Or you need to feed your children pork. By the way, this is not a theoretical issue in the early 1500s, after the Granada was conquered in 1492, and all Muslims were forced to convert in 1525. By the way, other parts of Indonesia had been under Christian control since the 1085. So you'd have Christian Muslims living under Christian rule since the late 10, hundreds in Spain, what's now Spain, but the point is in the early

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the kingdom of Aragon, aka steel, the Christian kingdoms that had conquered all the Iberian Peninsula, actually focused exists in Muslim communities to drink alcohol to eat pork to go.

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And so some of those communities wrote two scholars in North Africa, one of them the famous Maliki scholar, one shade EC, who died 1508 common error, and they said, What should we do? Then this has been done and the main answer The answer that one should use he gives, which has been the main answer that Muslim scholars consider authoritative since then is you have to emigrate you have to leave. If you're living in a place or Muslim, where you are not allowed to practice your religion, and you are forced to do things that God prohibited clearly, you have to emigrate. Absolutely. Now, another answer was given by another Mufti who died in 1511. He was also from North Africa, so named

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Ronnie from Iran. And his response was, no.

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You hate these things in your heart, you know, that's haraam. But you have to stay you have to do this because otherwise there won't be any Muslims there period.

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And the benefit of preserve some community there, even if it's in secret is so great that it justifies your disobeying God. That's the minority answer. But I think, you know, when we think about hamdulillah in America, we don't really have this problem yet. But hopefully we won't have it, period. But I mean, if you're let's say you're in a European country in the Netherlands, part of a citizenship, in order to get citizenship, you have to view certain pornographic images.

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You can look this up, go look it up. Somebody look it up. Just so the jump believe I'm making this up on from not fake news website. Okay. So you and you had to make statements about your views on homosexuality,

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and on sexual liberties. So there are there are countries in and I'm not just talking about countries like France, which prohibit the niqab in public, but I'm talking about countries who actually require Muslims to engage in actions that are prohibited clearly in their religion at least one time. Okay. So this is

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when I think there's a time to think about what should Muslims do in these situations, should they leave? Or is there an inherent value something valuable about staying in that place, even if you're forced to do things that you there that are haraam? We have both choices in our tradition? Okay.

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How do we know when I when I said you know you, you have to obey the the authority as long as it doesn't require you to do something that violates God's command? What do we know what God what how do we know God's command is here? Okay. Dr. Juma talked about the God on

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the Sharia is, isn't there's no book of Sharia. You can't go find a book that says this is the Sharia tree is the idea of God's law. The idea of God's law. Its actual manifestation in human life, as Dr. Jamal talked about is fit. It's human effort to understand what God wants from us. Now some of those things are clearer than others. For example, we know that Zina is prohibited, we know that drinking wine is prohibited, we know that stealing is prohibited. But then when you come to things, let's say like issues of dress, are men required to have beards or not? are men required to wear hats or not? Are women required to wear to cover their face or not? These things are disagreed on by

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Muslim scholars. So say a government a government says we prohibit the niqab.

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Your School of Law, let's say your handily or majority opinion in the Hanafi school you might think that no, you're you're a woman, as a woman are required to cover your face when you go out in public. But there's other totally accepted schools of law in Islam in Sunni Islam that say you're not required to. So here we have, you're really in a situation where you can take advantage of the principle of El Hadji to tangela menza to dura Hampton can our Casa so that need takes the place of necessity

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and necessity bura makes permissible what is prohibited. That's why if a guy has a gun to my head and says, I want you to drink this entire two liter bottle of whiskey, probably kill me but two liter bottle of beer, I can do that. Because that's a necessity.

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If you have a situation where you are systematically under certain pressures, you can't do things that are prohibited, but you can take advantage of existing flexibilities within the tradition. So you can't you can't you know,

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let's say start eating pork regularly. But you can if your woman stopped wearing niqab and showing your face you can if you're a man, shave your beard and not have a beard. So

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we there is flexibility in the Sharia tradition about

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what a what are the limits for what what God's law is? What exactly is God's law in a situation? And if they're saying let's say women can't wear in a club, well, Muslims can still stay there because it's not required to wear niqab in, even in the majority schools of law. Okay.

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And by that, I mean, by the way, Muslim states also have the right to do this. The Muslim ruler has the right to select either route within a school of law, or between schools of law, rough and lifted off in order to remove

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and i the only thing of example is the only one I could think of is in the late 10. Hundreds in Baghdad in seljuq era Baghdad. There's this really prominent, notable comes to town and he's a hanafy and they're they're following no he's a Shafi but they're following the place where he's going. They're following a few rules of fasting when you break fast and stuff like this. And so that gets to be a conflict over should you listen to him.

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And his opinion on when you break fast or the other people will find the Hanafi school. And it goes all the way up to the to the ruler. And he basically says just take the Hanafi ruling means it just can't be a disagreement, we need to know, somebody needs to decide when we're going to break our fast and how we're going to follow the rules of fast. So this is the right of the ruler to do this. Now, if you're a Muslim minority living in a non Muslim country, Muslims individually almost like communities have that right. with certain constraints, there's different opinions about this the majority middle of the road opinion on the issue of what's called the high your or choosing between

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different options is you can choose between different schools of law.

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Either if you feel the evidence is better for one school of law, the other the evidence for the person, or if some kind of pressing need or necessity requires it. So, you know, my, let's say my neighborhood is all full of people walking their dogs all the time. Their dogs are coming out to me. They're sniffing my legs. They're licking my pants. This is my neighbor's actually do. One of my neighbors, in fact, brings his dog all the way up to my office door to pee there for some reason. And I so he does it with such confidence. I'm like, is this actually okay? Or is this? Should I go and tell them this is wrong anyway? Not Not a big issue. The point is, if you have a situation where

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it's really hard for you to avoid having a dog hovering and slobbering on you at some point, then you can say I'm going to take the Maliki ruling and say that the dog's saliva is not nudges because otherwise you're constantly gonna be changing your pants in order to pray. So that's one restriction. The second major restriction is you can't come up with what I called Franken fatwa. You know, Frankenstein, you can't have the Franken federa where you have, you know, okay, the dog came and licked my pants, but I'm going to take the Maliki ruling. So I'm going to go pray my pants, and then oh, my hair is looking really good today, so I don't want to mess with it too much. When I do

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we do so I'm just gonna work the front of my head. I'm gonna take the Shafi ruling and just use the front like the front of my head, not my whole head, which is the Maliki ruling. Maliki's, you have to wipe your whole head. And then you go and you say, I don't want to I don't want to make a lot of sound when I pray. So I'm not going to say Bismillah R Rahman Rahim as part of the surah when I'm reading the Quran, so now you have your then licked by a dog, but you you wiped only part of your head, so it's not acceptable in the Shafi school or the Maliki school. And then the this the Sharpies require you to save this motorman Rahim out loud as part of the prayer if it's outlawed

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prayer out loud prayer. So my point is that you end up with a frank and fetzima when none of the schools of law that you've actually are relying on would accept the final composite results. That's Frank in front to us. So you can have the Frank and fatwa. But you can mix and match based on needs legitimate needs, okay?

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Now,

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there's something else that I want to bring up. And I actually have more time than I thought, which is that we have to be very careful that you don't allow your what you perceive as pressing needs to lead you into laziness. What do I mean here? If a lot of Muslims in this country, Arabs, a lot of Muslims, this country don't care about halau meat, they say me to the people, the book,

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a lot of Muslims in this country do care a lot about this daisies, okay. If all Muslims had said we're only going to eat halal meat, then Muslims would have gone into the butchery business. And yeah, it would be terrible for those Muslims stuck out in some village or some town with no halaal need. And they would have to eat fish for a couple years or not any meat. But in the end, Muslims would start their own meat industry. And maybe they would even come to dominate the meat industry.

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But if you constantly are taking licenses to not taking rulings that allow you not to do something, then or to allow you that allow you to do something in this case, then you're actually you're kind of you're not forced to create the religious infrastructure that your community needs. So this is something you want to watch out for. We want to watch out for.

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In areas of criminal law, there's no laws and just what people mean when we talk about Sharia law in America, all Muslims are charged with hands off and things like that look, even in a Muslim country, even in Baghdad and 10, hundreds or Delhi and 1400 or something like that. It is not up to Muslim citizens ever to engage in criminal application criminal law. This was and you can find this all the way back to the time the Nam Shafi very specifically saying this. This is the job of the Dalai Lama. This is the job of the ruler to do.

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The person let's say if my brother gets killed, I bring the case to the to the judge and I say this guy kill my brother, but it's the judge who orders execution overseas that's huge and carries out most of the time the execution if I want to have the guy executed, okay, well, that's not even an issue. What about what we would call civil law or basically things like contracts

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And property and things like that here.

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First of all, there's a lot of the Sharia is the same as American law. I mean, there's only so many ways to deal with someone breaking a contract, you know, either they have to pay you money, or they have to do what they said they were going to do. It's not that difficult. And when there's things like Riba or gutter, namely unacceptable risk or interest,

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we can have contracts that say, we're not going to use interest. And that's what Muslim

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finance or Islamic finance organizations do. We can debate about Islamic finance to where the blue in the face. But the point is, it's well within our capacity and our rights in this country to have contracts with each other or with other people that don't, don't use interest or an acceptable risk.

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Another really controversial thing is family law issues, family law issues. But again, in the United States, so far, we've been granted a lot of flexibility on this. So for example, to states, there's cases in two states, both Florida and New Jersey, have

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already cases in the 1980s 1990s, where Family Law Courts have upheld the marriage contract of Muslims as binding legal contract, and forced the husband to pay the back end more than welcome her to a wife that he divorced. Two states have not done that, that California and

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California and sorry, Maryland. But in one case in California was because they didn't. They just didn't consider this to be a contract. In the case of Maryland, this is interesting. And this is where the kind of controversial issue comes up. They consider it to be against public policy. This was a case where a Pakistani man had gotten married to a woman in Pakistan. And you know, decades ago, they moved to the US, the guy had made a lot of money, they become US citizens. And he the husband divorced a wife. And he basically said, okay, all I owe, is, you know, back in the 1960s, we got married in Pakistan, my mother was like, $500, all I owe you is $500. And here's my contract

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prove that the Maryland court said, No, this is unacceptable. This woman has been your wife for decades, she's sat and cooked your food and all this stuff, and she's a citizen of this country, and there's no way we're gonna let you treat her like this.

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So I mean, that's the kind of issue where you might see contradiction between, quote unquote, the Sharia. I don't really think that's, you know, very good Sharia law in this case, either missionary and and and American law is when people start seeing

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marriage agreements as unconscionable or socially unacceptable. But here's an interesting thing to keep in mind. And this is why I think Muslims are kept are held to a double standard, or held to unfair standard.

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If I miss some super celebrity rich person, and I want to get married to someone and I make them sign a prenup saying, you're not going to get single diamond, my massive celebrity wad of cash, if I divorce you, that's fine. That's a fine prenuptial agreement United States, as long as it's not unconscionable, and this is well within the realms of the realm of the conscionable in American law,

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that's fine. But if a Muslim had done that, then it would become Oh, look at this unacceptable, horrible Sharia law.

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If it leaves my if I want to leave my might have my will, that says my lot my money, my estate will be distributed according to the School of Law.

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Someone can come and say, in your school of law, the daughter only gets half the write the money of the Son, this is unfair. And in fact, about two years ago in the UK, when when the UK Bar Association was was handing out guidelines to help

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attorneys there do client wills, they got in trouble and they had to retract that advice. Because it was they said it was it was people in the press were saying the Sharia is systematically oppressive to women in terms of their access to or their the rights they get under inheritance. But if those people had just been rich white guys, they would easily have, you know, I can have in my in my will in the United States and UK, I can say I want to leave all my money to

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rush limbaugh's radio show. Okay? And I don't like my kids, so they're not going to get a single thing from me. Or I want to leave on money to my son because he's male. And I like men, and I'm not leaving any money on my daughter because I don't like women. That would be fine.

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But the fact that in the Sharia, the daughter gets half the inheritance, the son dennis is considered to be oppressive. So, you see in the in this area of law, that even when there's an

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idea that Islamic law is so good against social policy United States or unfair, the same exact practice, if they're carried out by non Muslim are fine. Now,

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I say things could change, I hope they don't, because in 23 state houses so far 23 states in this country have had laws proposed, either proposed or passed to ban the use of foreign laws, which they mean the Sharia. Now, in one case in Oklahoma, the federal court, they're overturned the law is unconstitutional. That's because it specifically talked about the Sharia. And then the group that was leading this, it's all based on this guy, David yerushalmi. template for these laws, they went back and said, instead of saying Sharia law, they said foreign laws. But everyone knows what it means. And but by the way, I'm sure if there's some Japanese company that says, we have a Japanese,

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we're gonna go to Japanese law on our contracts. I'm sure that some state state of California is not going to not allow that contract, even though it's foreign law here really mean, Sharia law. And they really mean it for marriage, they really mean it for inheritance. And the danger is that this tide of Islamophobia in this country will not will lead people not to protect the legal rights of Muslims. And if you live in a state, one of the states that says basically that Sharia law is prohibited.

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What does that mean? What does that mean, if you live in Tennessee, for example, where one of these laws is passed?

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In theory, in theory, you could be arrested for fasting, in theory, my will, would not be valid, because I say divide up my my my estate, according to the humbly School of Law, in theory, my marriage is not valid, at least my certain aspects of my religious marriage are not valid.

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In this case, Muslims, he asked themselves should should Muslims live in these states, like Tennessee or something or not? My own take is, this is an issue being disputed, this is an issue that is people are fighting over now. And if Muslims just say, you know, I'm not going to live here, because this, the Sharia is not allowed, I'm going to follow one sugary spatula and move to, you know, New York or something.

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You're just going to give up on a fight, and the fight is not anywhere near over. And so Muslims need to be present for this. And he needs to make their voices heard, to, you know, make alliances with other groups that protect the rights of religious minorities to live according to their laws. in those areas where this is permitted by our legal system does not come off at

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all I come I only got a few questions. But the one person asked about, what do you you know, different schools of law say different things? Can you just take it are all opinions equal? No, they're not. I mean, you're talking about the four Sunday schools, you know, these are all well argued traditions. I mean, I think those are all equally considered. I mean, within School of Law, you might have some what's called shadow shadow means irregular anomalous opinions. And then some scholars come up with like, say, Mufti comes up with called shadow ruling.

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So that's what people should really watch out for, not necessarily, you know, the main med head position on something. But you know, one Mufti or one scholar from the 1100s, or from 1800s, giving one fetch one, then you take that, because then you get a lot of what's called show shad fetch was like we did, where if you took those, you could really create the ultimate Franken Francoise version of Islam where you'd be, you know, fornicating, drinking, dancing, opening a bar, whatever at all at the same time, and have some kind of justification because you have 1400 years of tradition, you know, countless 1000s and 1000s, and 1000s and 1000s of scholars, and every one small one of them

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comes up with a really bad ruling. And if you just go hunt that out and find it, you'll be able to justify what you're doing, which is, which is not appropriate. Should you stick with one method. My opinion? Yes, I mean, it certainly in the United States, your you know, yes, I think you should stick with one for basic things like how you pray the rules for fasting rules versus a cat, things like that. But it could be very difficult to live in the United States, and to be part of the Muslim life, public life and only follow one method. I think pretty soon you're going to start having to be more flexible on specific issues about public life. You know what time Juma prayer is, for example,

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of most mosques in the United States, take advantage of the humbly ruling where you can have Juma prayer even before the beginning of the hard time. And lots of people would say you can't even have more than one though her prayer. Or you know, you could be hanafy and say you're in dharohar. But so no one's bring drama at all. That would be a very bad way to to have a community. Nothing that I've made, not that I didn't get one of these otherwise. My point is that you can have one method in your private religious life, but I think once you get into public organization, it's gonna be very

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Hard to do things like organize, eat prayers, organize your mom prayers, organize anything without having some kind of mixing and matching for purposes of facilitation. And then finally, the last question was how to explain the punishment for homosexuality according to Sharia law? Well, the you know, the punishment is either depending on the School of Law, either it's for

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luat for sodomy, the punishment would be death or in the Hanafi. School.

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The early

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opinion,

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the opinion of Abu hanifa would be that it's up to the ruler to the judge to decide what the punishment is, but it's not a death penalty.

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Why is that? I mean, I'll just look historically, not from a Muslim perspective is historical perspective. So, when human beings started settling down in agricultural communities, you know, 4000 bC 5000 BC, you know, we have some of the earliest the earliest law codes we have at least preserved or any records of them codes, like the code of Hammurabi, Assyrian law, the laws of eshu, things like that, from 3000 BC, 2500 bc in Mesopotamia. One of the things that you often find is prohibitions on homosexuality, especially for men, and side by side with prohibitions on bc reality. So you can see this in the book of Leviticus in the Old Testament, where you have prohibition on

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homosexuality and prohibition on bcit right next to each other, not the act the prohibitions right next to each other. Okay? That was a pretty good joke. Nobody got it. But anyway, the why is this the case? If you think about, you know, human beings, we're human beings are animals in Islam, that's what we are, we're when we're haiwan nautique, we are animals that reason. Now, one of the first things human beings have to do is say, especially if you're living with cows, and camels, and sheep, and all sorts of other animals all around you, you have to ask yourself the question, what are the lines we're going to draw? Human beings have to draw lines between themselves and time is

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overthinks between themselves and other species. And then the second thing they have to do is at the draw the major line within the human community, which is the difference between men and women. And so these laws actually create these very early distinctions between human beings and non human human animals, and then within the human species between the genders. So that's, I think, how you explain that why these laws exist historically in human civilization. Does that mean law here on Dr. Brown and the third ml for your time and for your

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valuable advice and the clarification