How Islamic law and American law deals with various aspects of the human life - Dissertation Example

Dissertation Proposal I. Introduction American law and Islamic law are geared towards achieving justice. There emerges a problem though as some people tend to differ with the way both laws are handled This is because; non-Muslims do not understand Islamic law while Muslims on the other hand would like to have their own courts that would be handling their cases, especially in countries where Muslims are the minority (Edwards). Some non- Muslims associate Sharia law with “ruthlessness.” This is especially when it comes to punishing offenders by either public whipping or stoning. Many people especially non-Muslims tend to have a problem with some of these forms of punishments (Stern). To a Moslem, that is just a form of obeying Sharia, which is considered as God’s Law. There is no problem in implementing God’s law when it comes to Sharia law. On the other hand, American law appears to take a different route. The law dictates that there should be democracy in everything including when passing judgments. There are, therefore, differences between Islamic Law and the American law. In America, stoning and whipping suspects in public is considered illegal. This act is considered as being contrary to human rights. This paper will assess who Islamic law and American law deals with various aspects of the human life. This notion about Islamic law being tough and firm against culprits has brought fear among many states in the United States of America, where the number of Muslims has been rising especially after the September 11 attack. Islamic laws have been used in many states but that fear has prompted many states reconsider outlawing the laws as they consider them going against basic human rights. Since America believes in the values of democracy, many are of the opinion that Sharia Law is sometimes extreme and go against human rights expectations. This paper will outline the view of Islamic laws and American law and delineate frictions in the two laws especially in America. These challenges have emerged as there have been cases in court where there appeared to be conflicts between American Law and Islamic Law. An example is a case that occurred in the state of Florida. Freeman was a woman who had converted to Islam. Islamic women are not allowed to uncover their faces in public. Their faces should be covered. As Freeman had converted to Islam, she was bound by the Islamic laws as well. Freeman was to have her photo taken, but she declined to remove her face covering. Within the Islamic law, Freeman was without crime. On the contrary, the state of Florida revoked Freeman’s driving license. This act prompted heated views from Muslims and non- Muslims alike. The state of Florida was acting within their law which emanate from American laws where they felt that it was better revoke Freeman’s driving license. From this act by the state of Florida, one can assume that all women irrespective of religion are supposed to have their photos taken with their faces uncovered. On the contrary, this is not the case in all states in America. In some states in America, one does not need to have to a photo taken to procure a driving license. What is required in those states is only a birth certificate or a social security card. These conflicts arise from having an interest a state is so much interested in protecting and a phase of Islam that a Moslem would be willing to articulate (Amanat 112). In many of the cases, what seems acceptable in Islamic law appears to contradict with American law. Under Islamic law, teachers and pupils should be dressed according to their respective law. On the other hand, American law does not dictate a specific dress code for either students or teachers depending on religion. This seems to forge conflicts between the two laws. In the state of Pennsylvania, there is a law stipulated prohibiting the wearing of any dress or exposing any mark that would portray the wearer as being a member of a certain religion. In such a state, it becomes difficult for a Moslem especially a woman, to get employment. In the state of Pennsylvania, there was a case where a woman was seeking a teaching job. Being a Moslem, she had to wear a scarf and this led to her losing the chance for the job. In comparing Islamic law and American law, there seems to be differences in the way judgment is passed. II. Literature Review The seemingly conflict of interest between Islamic and American law raises a lot of concerns mostly among American Muslims. There is a panorama of applying Islamic law practically in the United States yet there are fears from the non-Moslem community of the impact of Islamic law in United States. As the number of American Muslims continues to rise, so is the need for American lawyers and jurists to be conversant with Islamic law. This would go a long way in establishing Islamic jurisprudence and some of those cases highlighted above would have been handled differently. Ramadan, in his book, Understanding Islamic law: from classical to contemporary, asserts the need to understand Islamic law before raising concerns (Ramadan 2). This is in relation to those people who seem to be concerned about the continued implementation of Islamic law in the United States. These concerned people propose the use of American laws in all states in America and not tending to mix the two. Ramadan asserts that with proper understanding of Islamic law, there will be no cause for alarm. According to Ramadan, Islamic law has a chance of taking an intellectual focus in the lives of American Muslims as years by. Islamic law emanates from the Qur’an and grips all phases of human activity while defining the real Islamic value and how Moslems should behave. This proper understanding of Islamic law will assist in eliminating suspension that usually surrounds people’s minds (especially non-Muslims), who may want to associate Islamic religion with insecurity. Freeman’s driving license was revoked as a “security precaution” against the state of Florida, according to the jury. Ramadan asserts that if only people would be willing to take time in understanding Islamic Law, such problems would be easily handled. The notion that Islam is about violence is far-fetched and does not represent the truth. The truth is that Islam is about people and tranquility and people should not try to associate the religion with suspicion to the extent of passing judgments with suspicion in mind. Ramadan says that one way to achieve this is by enlightening the media who sometimes report negativity about Islam and its laws. Understanding Islamic law starts by getting the right definition which Ramadan gives as a reference to the complete system of law and jurisprudence which is connected to Islamic religion. This system and jurisprudence includes the principal sources of Shari’ah and the fiqh. Amanat in the book, “Shari’a: Islamic law in the contemporary context,” emphasizes that it is a challenge to utilize Islamic law in a contemporary setting. The author expounds on the point that in a region, or country that does not hold Islamic beliefs, Islamic laws will always be viewed with contempt (Amanat 57). The author advocates for ways in which Islamic laws can be effected in such a country without experiencing hurdles. The author tends to agree with Ramadan that Islamic law has been misunderstood especially by non-Moslems and for this reason, been subjected to controversies and politics. Things have not been made easier by the acts of terrorists whom many people associate to represent the Muslim world. Many people have not learnt how to differentiate between heinous actions of few people with a religion as diverse and peaceful as Islam. These are the people who view Islam with fear prospecting the laws as being harsh. Just as Ramadan advocated for proper understanding of Islamic law, so does Amanat advocate for Muslims to take the challenge of informing others what the law entails so as to clear the misguided views about the law (Amanat 182). For one to be a good ambassador of Islamic law, that person should possess immense knowledge on how the law came to be, and the benefits of its use. In some American states such as Michigan, the American law prohibits the sending out of calls for prayers in a mosque especially if the call would result to “nuisance”, hereby presented by airing the call before 6.am. and after 10.p.m. American law is “democratically” weaved whereby one’s action should be within the scope of not causing disturbance. In this law, anything that may be termed to cause disturbance irrespective of the benefits it carries, would be termed illegal. Islamic law on the other hand has no problem with calling people out to prayers. Islamic law allows for calling for prayers on loudspeakers and this is not considered illegal. Allah must be worshipped and five times a day is the schedule and this has to be observed. The call has to be through the loudspeakers which in Michigan may be inappropriate after the set hours. Under American law, it is considered a breach of contract if one does not follow an agreement to the end. A Moslem man in the USA decided to buy food products from Dunkin Donuts in Chicago as his religion forbade him from eating pork. Some years later, the company, started offering sandwiches for breakfast which had been spiced with bacon, sausage and ham. Another franchise of the company was allowed to sell breakfast sandwiches that contained no meat. As time passed, Dunkin Donuts refused to renew the customer’s franchise agreement quoting the customers failure to carry the entire Dunkin Donuts breakfast product line. According to the U.S. law, Dunkin Donuts were within their legal powers to deny the man a renewal. On the other hand, the customer could not continue using the products as it is illegal to handle pork products under Islamic law. By clearly understanding Islamic law, some of these challenging cases could be easily handled. This is the reason Amanat advocates for a clear understanding of Islamic law. If the Dunkin Donut Company understood the Islamic law, they would not have subjected the customer to such treatment. As a company, they were only concerned with making money not knowing they contributed to the customer’s refusal to continue ordering the full sandwich breakfast. Freeland in the article, “The Islamic Institution of Mahr and American law,” noted that unlike in Islamic law, American law preferred to rely on ante-nuptial conformity as a representation for imposing laws without bestowing much contemplation to idiosyncratic Islamic features of the nuptials contract. Freeland advocates for a situation where specialist evidence from both sides should be clearly gauged so as to administer Islamic law. Freeland states that in America, judges assume marriage as being a “religious” affair that may appeal to legitimate issues (Freeland 3). American law has provisions for separation in marriages but this cannot be said as true in Islam law. This is because; Islamic religion does not support separation and for this reason, the guidelines demonstrating ante-nuptial contracts being implementable if they persuade separation should not be used in relation to Muslim marriages. Stern, in the article, Don’t fear Islamic Law in America, goes a long way to show the fears prevalent in many Americans concerning Islamic law (Stern). Views highlighted by numerous authors concerning associating Islam with violence continue to haunt many non- Moslems. This has been explained to be caused by lack of proper knowledge of Islamic law. Stern explains the reasons why American citizens should not be afraid of Islamic law. Those supporting the outlawing of Shari’a law are led by the belief that American may become a country of homegrown terrorists. These people are afraid that they would start experiencing what humanitarian groups term as “cruel” methods of dealing with thieves, rapists, etc. This is because Sharia law advocates for rough treatment for such offenders, which the American law perceives as extreme. American law would consider such treatment as cruel yet it has provisions for executing death using lethal injections. American law and Islamic law tend to differ when it comes to matters pertaining to family matters. This is in respect to settling divorce, and maintaining dependents, among others. Under American law, divorce matters are handled in such a way that the woman may not suffer much loss from the divorce. The husband has to part with a certain amount of cash and property which goes to the wife. Mothers, on many occasions are granted the custody of the children. Under Islamic law, on the other hand, men are favored to inherit more than women, in addition to having an upper hand concerning custody disagreements. This puts women in a dilemma when dealing in divorce matters considering that Islamic women may not be disposed to seek arbitration on their free will (Morley). This means that if a woman was suffering under a violent marriage, she may encounter immense pressure from her peers to seek redemption from Islamic law, although her case could be handled better under state law. The state would ensure she inherits equally with the man. III. Methodology A. Comparison between Islamic law and American law concerning family Under Islamic law concerning marriage, a marriage legally exists after the marriage contract is concluded. A bride does not have to appear in person during the wedding ceremony and on her behalf be witnesses. After the conduction of an offer and an acceptance, performed on the same occasion, the marriage is binding. On the other hand, under American law, it is almost impossible for a wedding to be valid without the presence of either party. Both the bride and groom have to be present in person irrespective of the fact that other witnesses are present (Nancy 59). The wedding couples exchange their vows and have to sign a wedding certificate which binds them as man and wife. In case of mixed marriages under Islamic law, a person who marries a Muslim and lives in an Islamic nation will be treated subject to the Islamic laws governing that country on matters pertaining to the family. Children born out of this family are considered Muslim and are also considered citizens of their father’s country of origin. Children born under this setting will need their father’s permission whenever they would wish to travel out of an Islamic country. Under Islamic law, a wife may be easily divorced by the husband without much hardship and without going to a court. All that pertains to an Islamic divorce is uttering of certain words. Here, the wife receives a nominal payment after divorce. The divorced may be labeled a “bad Muslim.” Under American law, divorce usually has to involve lawyers and the court of law so as to ensure family property is shared accordingly. This is to ensure the wife is not short-changed. Under Islamic law, the wife requires the husband’s permission when trying to leave the country. In America, the wife may only indicate to the husband of her intentions to travel out, not to ask for permission per se, but as a way of promoting openness. Any hurdles experienced by the wife on such an endeavor may easily be solved in a court of law. The courts ensure the parenting roles are shared between both parents (Helen 107). B. Islamic law and American law on adoption Under Islamic law, adoption has no legal place. There is a prohibition for a person to claim to legally adopt a child of either gender when there is no biological connection. The predicament lies in the fact that the adopted child can never earn the same status earned by a biological child. The absence of biological connection between the child and the parent means the parent will not accord true and maximum love and attention to the adopted child. However much the parent may claim to love the adopted child, natural feelings that are usually accorded to a biological child will not be present in such a situation. This would be compared to treating the child unfairly. The child will not possess the genetic characteristics prevalent in a biological relationship. Under Islamic law, a child has a right to only one father. This is explained as the reason marriage was ordained by Allah and adultery highly forbidden, so as to preserve the institution of marriage and legitimacy of the children. A British couple wanted to adopt a child in 2002. They had got an orphan child whom they found abandoned in Jordan. The child had been abandoned when he was 10 years old and the couple wanted to adopt him. The couple applied for the removal of the child from the orphanage and the social development ministry of Jordan agreed to issue the child with a passport. However, the ministry could not give its consent to the intended adoption plans in England. The reason given was that it was not appropriate under Islamic law to change the lineage of a child. By allowing the British couple to adopt the child, the boy’s lineage would have been changed and that is inappropriate under Islamic Law. Under American law, the process of adoption is not as challenging although there are legal requirements that have to be met before one is allowed to legally adopt. One unique thing about adoption under American law is that it is not considered inappropriate to change the child’s lineage. The welfare of the child is more important if it will benefit from the adoption than making considerations about contributing to changing the child’s lineage. In America, adoption laws are subject to state laws and regulations (American Bar Association). Each state has its different rules concerning adoption and an applicant must qualify for the adoption rules and regulations. If an adopted child were to receive an inheritance claim from the adopter, the child’s real relatives may become agitated as they felt the adopted child has deprived of them their full inheritance. This action may lead to quarrels among the relatives of his new home. Family relationships may be hurt and this contradicts Islamic view on family harmony (Islamweb). Conclusion and Recommendations There appears to be a misunderstanding of Islamic law to the non-Muslim nations who may want to associate the law with violent behavior. On closer look Shari’ah is accepted in Islamic countries as word from Allah and therefore there should be proper understanding of the law before embarking on debates. In both laws, service justice is the primary objective. For justice to be observed there should be provisions for an increasing Muslim population in any country to be handled the privilege of seeking justice using the Shari’ah law. This is because; Islam and Shari’ah are inseparable. It is paramount to accord the right of sound judgment in all cases. Jurists and lawyers should take time to understand the Islamic culture and the provisions of Shari’ah so that they can pass fair judgment. Some of the cases revisited could have been passed in a different way had the jury concerned been aware of the provisions of the Islamic culture. Lack of proper information makes the judgments improper concerning persons of the Islamic faith. Family laws concerning marriages, divorce and adoption are very important in the lives of persons. Therefore, any disputes arising from those sectors should be clearly articulated so as to pass the right judgment. Works Cited Amanat, Abbas. Shari’a: Islamic law in the contemporary context. California: Stanford University Press, 2007. Print. American Bar Association. Family Law in 50 States. American Bar Association, 2011. Web. 25 Feb. 2012. Edwards, Tito. Sharia Law and the U.S. Constitution. The American Catholic, 25, June 2010. Web. 25 Feb. 2012. Freeland, Richard. “The Islamic Institution of Mahr and American Law.” Gonzaga Journal of International Law 4 (2000): 1-8. Print. Helen, Rhoades, “The Rise and Rise of shared parenting laws: A critical Perspective,” Canadian Journal of Family Law 19 (2002): 107-108. Print. Islamweb. Adoption in Islam. Islamweb, 24 August. 2006. Web. 25 Feb. 2012. Morley, Jeremy. Islamic divorce vs. US divorce. International Family Law, 2010. Web. 25 Feb 2012. Nancy, Cott. Public Vows: A history of marriage and the nation. Cambridge: Harvard University Press, 2001. Print. Ramadan, Hisham. Understanding Islamic law: from classical to contemporary. Oxford: Rowman Altamira, 2006. Print. Stern, Eliyahu. Don’t Fear Islamic Law in America. New York Times, 2 Sep. 2011. Web. 25 Feb. 2012. Read More