Editor’s Note: The following essay is published as a response to recent public criticism of Shaykh Amin Kholwadia’s remarks during his panel discussion at Rayburn House Office Building in Washington, D.C., where he addressed questions concerning Shariah, constitutional order, and the place of Muslims in American society.

The author of this response is a graduate of Darul Qasim College who writes from within the institution’s broader intellectual tradition and scholarly framework. While the views expressed in this essay are those of the author, Darul Qasim welcomes thoughtful scholarly engagement rooted in intellectual rigor, historical nuance, and sincere pursuit of truth.

We share this piece as part of an ongoing conversation on important questions facing Muslims today, trusting that meaningful discourse is best served through scholarship, adab, and serious engagement with our rich intellectual tradition.

A new piece (“Shariah, Sovereignty, and Muslim Apologetics”) by a Mohammad Nusairat that went into attack-mode on Shaykh Amin Kholwadia’s (aqlish ravān bād) lecture at the Capitol, that Muslims are not obligated to follow the Shariah in America and that the Shariah demands obedience to the American constitutional order, in front of a smattering of U.S. lawmakers.

The article seemed to have enraged the author so much so that he created a substack for the purpose of critiquing the essay. Let me just start off by saying that the essay fundamentally misunderstands not only Usul al-Fiqh, Islamic constitutional law in history, and American constitutional history — this essay should give us pause and teach us that Muslims are in really bad shape intellectually. That Muslims like to take one scholar’s understanding of the past, without knowledge of its haql al-lughawi, of its wad’ al-siyasi, and then cattle-drive it to a post-Enlightenment moment, without any careful attention to any of these concepts, past or present.

Let me also make plain that just because you’re a Mufti doesn’t mean that you have any deep knowledge of the Islamic constitutional past – in fact I would argue that the vast majority of Muftis in the world — especially Deobandis and Salafis and Barelvis — have the least knowledge about Islamic constitutional order in the course of history, never mind the modern constitutional order. The Islamic constitutional order is still not clear to us – and Hallaq’s recent book barely scratches one surface of one empire of the historical Muslim constitutional order (Qasim Zaman’s and Noah Feldman’s analysis of its theoretical components is more historically revealing, as Hallaq spends too much ink on the theoretical aspect). The Fiqh texts — if someone were a hafiz of Ibn Nujaym and al-Kasani and, yes, even Ibn Mazah al-Bukhari and Ibn ‘Abidin, this would not prepare them to speak with acuity on the premodern Muslim constitutional order, for the simple reason that they were only writing on one angle of the Islamic constitutional order. I am saying that modern ‘Ulema are woefully unprepared to teach us about Islamic constitutional theory and arrangements

As most modern Muftis have also neglected kalam, especially of the sayyid of all mutakallimin, namely, Abu Mansur al-Maturidi, they do not understand their own theological considerations when it comes to the constitutional order – the bay’ah of sayyiduna Abu Bakr and Imam Hasan bin ‘Ali, ‘alayhis salam, is intimately fused in our own theology, to mention a small example (the Central Asian Hanafi Muftis on some occasions takfired those who denied the khilafah of Abu Bakr, to the chagrin of Shah Wali Allah). Again, Fiqh and Kalam are still not sufficient conditions to teach someone about the Islamic constitutional order, for the simple reason that one would need to be steeped in the historical chronicles, to notice how each Caliph is sizing up power in his day, the variations between al-Musta’sim and the Seljuk Mika’il and Mamluk Baybars and Ottoman Sultan Murad III, and Shaybani Khan and Sahib-i Qiran-i Thani, namely, Shah Jahan of Ma Wara al-Nahr.

Even more hauntingly, when Muslims do seek to unravel these concepts, Mufti or non-Mufti, they make terrifying mistakes in analogies, showing us they never paid attention in neither Qutbi nor Marghinani’s Hidaya – each concept like law, constitution, and their relation (-ality) must be made stunningly and nakedly clear – the Ottoman constitutional arrangement of the Gülhane and that of the Young Turks are totally different, and they are not even separated by a century.

Nusairat shows us two opinions of Shaykh al-Islam and Imam al-Qurtubi, who both would’ve likely considered each other a kafir, for their diametrically opposed understanding of the sifat, and states the Shari’ah to be whatever Allah legislated. (This is important to note as it reminds us how Muslims who write often don’t understand the intellectual ideas and their universe when they argue – slop ante slop). Yes, we learn this when we are three-years old.

The loss of language in its cultural and socio-political dimensions has been constantly emphasized by the Zaytuna scholars – it is on these occasions we remember why. The tragedy of this quotation is that the author translates it without actually translating it: in fact, had he sat with the line of Shaykh al-Islam, he would’ve understood exactly what Ibn Taimiyya was alluding to: the Shari’ah is not simply laws, but the ontological answer to any moral-cum-legislative question posed in any moment. When the Lord of Prophets did not perform ‘Umrah, that was the Shari’ah. It also cannot be reduced to a method, either. The Shari’ah is what God demands in a given exigency – when Algerian Muftis told Muslims in Valencia and Cordoba, when ordered to curse the most holy name of Muhammad, to pronounce the name “in a Spanish accent (Mamad)” and to not think of the Prophet ‎ﷺ when they curse the name, that is the Shari’ah. When the grandson of Timur, Shah Rukh of Herat, held a council of Shafi’i and Hanafi Grand Muftis of various Sunni provinces in Iran and Afghanistan and Samarqand, in the ancient city of Isfahan, about how much of the Töre they would incorporate and expunge within the Hanafi polity of the Timurid empire, that was the Shari’ah.

 

What Nusairat attempts to argue, with no knowledge of Fiqh, no knowledge of Kalam, and worse, a sloppy knowledge of history and of the Prophet ‎ﷺ, is that Muslims are asked to call for every implementation of every edict of the Shari’ah in all spheres of American life – that Muslims should be calling for legislation of Niqab, and for all stores to be shut down during Ramadan, and for Muslims to be lashed for premarital sex and for drinking alcohol. Indeed, this is what every Fiqh tradition demands in a Dar al-Islam.

Yet, we are not in the House of Islam. Is the Shari’ah the same in every land? Is the Muslim living under the Spanish in Valencia and the Muslim living in Rabat, in the same era, invited to act and execute the same actions? Did the Prophet ‎ﷺ instruct sayyiduna Abbas in Mecca, his own Chacha, to act as sayyiduna Abu Bakr did in Madina, post tafadā of Badr? (Look at Faydh al-Bari here.)

Nusairat confuses the two – even in his disheveled quotation of the Prophet ‎ﷺ of Mecca, he elides the fact that the Prophet ‎ﷺ did not call for furu al-fiqh in Mecca, the wisdom was elucidated by our Mother Ai’shah in Bukhari. Moreover, curiously, Ibn Taimiyya himself, argued over and over, in his various letters and in his treatise on tashabbuh, that Muslims should not be following the Shari’ah of Dar al-Islam when they live under non-Muslims, going so far as to instruct Muslims to wear non-Islamic clothing in Christian lands, among other matters.

Regardless, Shaykh Amin is not a Salafi, nor an Athari, nor a Hanbali. He is a Maturidi Hanafi – the same theology of every Ottoman emperor and the Fiqh of every major Abbasid emperor (unfortunately some Abbasid monarchs were seduced by the Mu’tazilah, and so thought they were following the ‘Aqidah of Abu Hanifah, until Abu Mansur Maturidi came along and set the course right). And so Ibn Taimiyya is not relevant to us here – we are interested in what Abu Hanifa argues here, the jurist given more acceptance by God than any other jurist in history, and so will remain until Judgement Day.

Yes, Muslims are asked to call for the monotheism of God, to call for the acknowledgment of the Prophet ‎ﷺ, in a way that is legible and norm-making to their host country, but in a fashion that is restricted by the rules of their host country. That is, Abu Hanifah, in 8th century-Kufa, near the tomb of Mukhtar al-Thaqafi, if not directly outside of it, taught that ‘Abdullah bin Masud and Umar bin al-Khattab, in the latter’s decrees and the former’s teaching circles of Kufa, had argued that the Shari’ah outside of the Umayyad empire mandated different regimes if they lived under non-Muslim rule. Consider this passage from the student of Abu Hanifah and Malik, and the teacher of Shafi’i (and thus Ahmad bin Hanbal), the only Salaf who can claim an intimate relationship with all four Imams, Muhammad bin Hassan al-Shaybani:

قلت: أرأيت الرجل إذا كان في دار الحرب بأمان فزنى هناك، ثم خرج إلى دار الإسلام فأقر بذلك عند الإمام أربع مرات، هل تحده؟ قال: لا. قلت: لمَ؟ قال: لأنه زنى في دار الحرب حيث لا تجري عليه أحكام المسلمين

”If a Muslim fornicates in a non-Muslim ruled land, then he returns to Dar al-Islam and confesses four times, will he be lashed?

Muhammad bin Hassan al-Shaybani: No, he will not be lashed even if he returns to Dar al-Islam (under the Sultanic authority)

This is exactly what Shaykh Amin is arguing and what Nusariat seems to miss – the result of non-scholars intervening in scholarly debates. Shaykh Amin is saying that the shari’ah in America is for there to be no Shari’ah, because America is not ruled by Muslims. In Hanafi Fiqh, the debates run to thousands of pages, on whether Muslims can own slaves in non-Muslim lands as they do in the House of Islam (and there were more slaves in the Ottoman Empire than there were in Europe – that much is historically indisputable). Al-Kasani argues that if non-Muslim lands abolished slavery then it is unlawful for Muslims to own slaves (even though it would be lawful in the House of Islam) – that certain permissible acts of the Shari’ah are unlawful in different lands.

Nusairat then, in adducing his argument, says “Islam does not allow the drinking of alcohol, while the application of the principles established in the U.S. constitution has legalized alcohol” – sayyiduna Umar and sayyiduna Abu Bakr allowed non-Muslims to drink wine in their domains, does this make them heretics, according to Nusairat? He, then, to my utter shock finds the distinction between sin and legality to be anti-Islamic – this is the confusion of Muslim terrorist outfits, of the khwaraij. That Imam ‘Ali, alayhis salam, had committed kufr because he chose to reconcile – the confusion between a state-centric Shariah that only applies to a Muslim ruler versus a Muslim minority who live under rules not of their own making: no Muslim reader should be left unhorrified by this sentiment. This is the same sentiment of the Kharjites in the modern world – the same ones who have spilled Muslim blood over and over, for two-hundred years. In many ways it was the result of a poor understanding of language and of tradition. Bad language leads to bad blood, literally.

Muslims are of course called on by the four Sunni Imams to invite to righteousness and the oneness of God and the oneness of people, as they are invited to make the lives of their co-citizens better (as Imam Sarakshi argued, drawing on the example of Ja’far ibn Abi Talib in Ethiopia). Nusairat then says: “However, Shariah distinguishes between personal sin, judicial enforcement, and public law” – yes, indeed it does, and Muslims are demanded by Malikite and Hanafite jurists, for over a thousand years, to make sure they do not interfere with judicial enforcement in non-Muslim lands and to try to avoid sin as much as possible – this is the mainstream Sunni position across four Madhabs and the one Shaykh Amin restated in front of U.S. lawmakers. There is no sin for Muslims to live (as Shah ‘Abd al-Aziz wrote in his risala) under non-Muslim laws that encourage sin, as long as they are not compelled to engage in sin. Khulasat al-Fatawa mentions a hypothetical: if siblings are getting married to each other, would such be allowed for Muslims living in a non-Muslim land? Absolutely not – Muslims would not be demanded to constitutionally change that law under that regime although they would be morally culpable if they engaged in incest. They are not, however, morally culpable if they do not seek to make those laws consistent with the Shari’ah. Deploying Hadith about taghir bi al-yad wa al-lisan in this scenario would evoke the laughter of every Hanafi Mufti and Tab’i and Sahabi who ever lived -indeed I am sure they are mocking many Muslims from the Barzakh for misstating their positions so ignorantly and brazenly.

The Shariah demands we obey the laws of our host-country, that we do not commit fraud in daycare and autism centers – that we do not, after gaining entry into a country legally, seek to break their laws after promising obedience to their laws. What Imam Abu Hanifa and Imam Malik term as ghadr. The Shariah then becomes perfectly consistent with the U.S. constitution as the constitution does not demand we violate the Shari’ah – the Constitution of America, compared with any other non-Muslim regime in history, from Qing China to Bonaparte France to Renaissance Florence and Milan, becomes the closest to the vision of the Shariah, although all their constitutions would have also been Islamic to the Muslims living under the regimes, as the Ottoman prince who performed Hajj, Cem Sultan, taught us in his life.

Shaykh Amin’s argument is more subtle than Nusairat failingly tries to demonstrate (he is confined to a Wahhabi framework of political thought) – drawing on the Hanafite jurist of centuries past, and of the knowledge of ‘Abdullah bin Masud, the “most knowledgeable,” according to the Holy Prophet ‎ﷺ- that Muslims must honor the contract of the country they live in, and must ignore the punitive ordinances of Islam (by the command of the Prophet ‎ﷺ) and many other rulings (as Shaykh al-Islam Ibn Taimiyya argues, Muslims must not dress like Muslims in non-Muslim countries).

I didn’t want to be too harsh but it’s also clear the author doesn’t know what the word constitution means – for it can mean a document or an arrangement or separation of powers – and this is a further point Shaykh Amin is hinting at: the separation of powers is something the Shar’iah conceded from day one: the sultan’s power is separate from the Mufti’s as it is separate from the judge’s. Further, the author then says that Shaykh Amin should have used his platform to condemn the genocide in Gaza – yes, his college has done so perhaps more than any other Islamic institution in America. But this was a discussion on the theory of the Shari’ah, not a legislative assembly. Should Muslims never think about their own tradition and explain it to others? Should they never reflect on the nuances of their tradition?

To sum up, Nusairat fundamentally misunderstands the meaning of the Shari’ah, as he misunderstands both Ibn Taimiyya and the society he lived in, as he misunderstands the word and semantic range of the word constitution, as he also misunderstands the nature of the Prophet ‎ﷺ’s commands and wisdom to his various Sahaba, as he also ignores the entire legal tradition that wasn’t cosigned by Muhammad bin Abdul Wahhab.

And the Prophet ‎ﷺ knows the most.

faqat wa al-salam

Further Reading:
Readers interested in engaging directly with Shaykh Amin Kholwadia’s full remarks may read the complete transcript of his Capitol Hill discussion here: “Muslims Do Not Subscribe to Sharia Law in the United States”.