Shari’a law and American family courts: Preliminary Findings from Wayne County, Michigan “Shari’a law” has become a national issue. A number of states have experienced legislative activity geared toward banning Shari’a law in American courts. Since the media only reports the extraordinary, we have heard of one or two controversial cases with a Shari’a law dimension. A number of important questions remain unanswered about the issue of Shari’a law in American courts: Are the reported cases representative of the universe of Shari’a law issues that arise in American courts? How do American judges deal with Shari’a law issues that arise in litigation in American courts? Without a study that empirically determines the breakdown of cases with an Islamic law dimension by type of litigation, one can safely assume that family law cases of Muslim Americans constitute an important part of the Shari’a- related litigation. Muslim Family law regulates all aspects of the marital relationship from its beginning to its end and beyond- marital rights, custody issues, property rights, etc. The forum for settling these matters is American family courts. What is the impact of a ban or a restriction on the use of Shari’a law in American courts? How would it affect the rights of men and women? Is it the husband, the wife, or both that is bringing up the Shari’a law aspect? From anecdotal evidence I suspect that it is the women who are raising Shari’a law issues in American courts. If my findings support this anecdotal evidence, then one of the unintended consequences of a Shari’a law ban in American courts would be advancing the interests of men over women’s. To study this important issue, this paper focuses on one part of the country, Wayne County, Michigan. Wayne county includes cities with a significant Muslim presence; cities such as Dearborn, Dearborn Heights, and Hamtramck. The parties involved in family law litigation are the parties, the parties’ attorneys and the family law judges. The judges of the Family Law division of Wayne county and family law attorneys with Muslim clientele will be interviewed and asked questions concerning the cases they had: What Shari’a law related issues arose, whether it was the husband or the wife who brought them up, and their resolution. The attorneys will be identified by their advertising in the Arab and Muslim ethnic media and the snowball method.

Until the mid 19th century, commercial transactions and litigation in the Middle East were carried according to Islamic law. By the end of the century, reform through the transplant of European legal systems, whether through outside imposition or internal adoption and adaptation, swept the region. Starting in 1883 in Egypt, a new system of national courts applying French commercial codes emerged. Corporate bodies, such as limited liability companies, were recognized as legal entities, opening the possibility for new organizational models. Written contracts were accepted as evidence in the courts, documentation requirements were incorporated into the system, and professional legal representation was introduced. This study analyzes merchants’ receptivity of and adaptability to these legal changes in Egypt. The legal reforms attracted much scholarly attention. Focus has been given to the political and economic history of the reforms, their compatibility to Islamic law, the dominance of the mixed courts, the emergence of the national courts, shari‘a courts in the post reform period, and the legal reforms of 1949. Absent from the literature are the beneficiaries of the legal transplants, the average citizens, and how they dealt with the new legal systems in their daily transactions. Also lacking is the real functioning of the national courts as Egyptians made use of them. This study attempts to empirically capture and analyze these two points. It studies the national courts registers and the archives of merchants’ councils to answer the following questions: How did Egyptian merchants respond to the new legal changes? How often did they resort to the national courts to resolve their commercial disputes? What types of partnerships were taken to the court? How often were written documents used to settle commercial disputes? What forms and scale of partnerships emerged after the reform? The aim of the study is to shed light on an under-researched area of the commercial and legal history of Egypt, understand the receptivity of a secular law by a largely Muslim population, and understand the process of adaptability to a new legal system.

The implementation of Shari’a in the modern nation-state has complicated the relationship between religion and state power. In a theocratic state such as Iran, where the national legal regime is based on religious law, the Ulama have resorted to various strands of Ilm al-kalam “theologies” in order to interpret religious doctrines. This paper describes the nature of what has been called kalam-e jadid (new theology) in the Islamic Republic of Iran. It argues that in Iran there are currently two kinds of Ilm al- kalam in practice. One type of theology that is more widely adhered to is the classical theology that stays true to traditional precepts, while the second is modern in nature and breaks with tradition in certain circumstances. This strand of kalam-e jadid, which makes use of “theology of selectivity,” is represented here by the works of Ayatollah Yousef Sanei, the person who epitomizes the intellectual but tradition-bound wave of post- revolutionary theological thought in Iran. In making this distinction, this paper delineates these different forms of theology in Iran with respect to family law. The issue of Islamic family law is a complex and contentious topic that has engaged the Ulama, women and state in a dynamic debate. Some Iranian Ulama are urging the state to reform the family law while more traditional Ulama such as Ayatollah Javadi-Amoli are refuting such arguments on the basis that it dose not adhere to the traditional Islamic principles. This paper will address the perceptive of Ulama who make use of kalam-e jadid and those who adhere to classical legal theory concerning the issues of family law, in order to shed light on the ideological distance between these two trends in the current Iranian Islamic thought.

The terms ashab al-'ahat ("owners" of impairments) or mu'awwaqun (physically or mentally challenged) or 'ajaza (disabled) are all used in Arabic today, by lay and jurists alike, to designate people with disabilities in general. However, in classical Islamic law, which was derived by Muslim jurists from the Qur'an and the Hadith, and culminated in a large number of legal (fiqh) books from the 8th century CE to the pre-modern era, these terms were hardly ever used. In classical sources one may find terms such as ashab a'dhar (people with excuses - in regard to religious duties) and ashab al-bala' (people with afflictions), but not in reference to all people with disabilities. Generally, the fiqh books refer only to certain disabilities that are mentioned by name, and they are discussed by the jurists only in a narrow particular context. People with disabilities are not viewed in classical law compilations as a homogeneous collective with certain rights or duties, but as sufferers from one or several disabilities (deafness, blindness, a certain mental disorder, senility, infertility, leprosy, etc.). Furthermore the deaf, the dumb, the leper, etc., are mentioned in the legal literature only when their disability hinders their performing a religious duty or engaging a certain social/economic human conduct. From the dictates of Islamic law, it is evident that people with disabilities were not looked down upon, and not accused of misbehavior which caused their handicap, nor were they social outcasts. All in all, Islamic law is tolerant of people with disabilities, but from social and historical studies we learn that this has not always been the case in reality. Therefore, my proposed paper will first handle the terminology, the disabilities that are specified in the legal compilations, and why them in particular (relying on a wide selection of fiqh literature and contemporary fatwas). Disability in Islamic Law (2007) and Islam and Disability (2010) have been the pioneer books on the subject, and they will be used as background material. Then I will refer to certain historical studies that support, and others that deny the general tolerant attitude to people with disabilities as manifested in Islamic law. Finally I will attempt concluding, whether in the case of people with disabilities, the law reflected social norms, or was only sketching a utopia.