Reproduced from the author’s Substack publication. Read the article on Sohail’s Substack.
Dr. Sohail Hanif
I’d like to kick off this Substack on understanding the Sharia by reflecting on a recent intervention by Shaykh Amin Kholwadia of Darul Qasim in Chicago. In a special address to a hearing on Sharia and the US constitution in Washington, he stated, in fairly unequivocal terms, that for Muslims to seek Sharia in a non-Muslim country is against the Sharia itself: “The law of Sharia is that Muslims are not allowed to call for Sharia law in a non-Muslim country, by law. They’re not allowed to do this.”[1]
This statement has understandably caused a stir, with many people asking what exactly he meant. I’d like to weigh in briefly by suggesting that the discussion becomes much clearer once we distinguish between different applications of the word Sharia. This paper reflects my own thoughts on the topic. It does not necessarily represent Shaykh Amin’s line of reasoning and argumentation.
The Sharia operates on several levels. I would like to suggest three levels here, and below I will suggest a fourth level.
First, at the level of the individual, it is a moral code. Second, at the level of organizing, structuring and giving direction to a faith community, it is a communal code. Third, insofar as it offers enforceable rules backed by political authority, it functions as law.
It is helpful, therefore, to reserve the phrase ‘Sharia law’ for this third level. The first two levels can simply be called personal and communal codes respectively.
Sharia as a personal and communal code cannot really be abandoned by the Muslim community, wherever or whenever they might live. It regulates ritual worship, a person’s relationship with their Creator, their relationships with each another, and provides the direction of travel for the community itself. In some contexts, aspects of this code might be harder to practice than others. But as an ideal for which to strive, it stands as relevant for Muslims in all times and places. It is therefore difficult to imagine a community that believes in the final revelation somehow existing without Sharia or consciously seeking life outside of it from this point of view.
Here (at levels one and two of Sharia), Sharia is a code, an ideal, an aspiration, a moral framework, a communal strategy, a measure of communal success and development, and a narrative about the purpose and flourishing of the community.
From this perspective, it has been suggested that Sharia is a ‘culture’. By culture, what is meant is the entire landscape of meanings and imaginations that forms the foundation of our values as we live faith in the world.[2]
Muslims without Sharia, in this sense, becomes almost unimaginable.
However, what Shaykh Amin was referring to was something different. He was speaking about what we might call Sharia law (the third level of Sharia). Laws, by definition, require enforcement through a governmental authority. His contention is that where Muslims do not possess political authority, they are not expected or required to seek out Sharia as an enforced public law. He also suggests that it is wrong to seek this out. This leads to another question: according to Sharia, what does it actually mean to implement Sharia law?
The topic of whether Muslim’s seek for Sharia law to be implemented under non-Muslim governments brings with it many assumptions. Key to this is what is meant by legal implementation.
You see, Sharia does not seek to be implemented as a law even under Muslim governments in the way that we normally think of legal implementation today. The Sharia does not actually seek, whether in a Muslim-majority or Muslim-minority country, for a single body of Sharia law governing everyone equally.
The classical Sharia always maintained that each faith community should be governed by its own religious traditions. And above this varied tapestry of communal faith laws was a relatively thin layer of public law that governed society as a whole. This higher layer of law related to protection of the public order, particularly the sanctity of life and property.
So even in what we would call a Muslim country, Sharia law was to regulate, as enforceable law, only the lives of Muslims, not of non-Muslims. Sharia law was not therefore a universal law even under Muslim governments.
This should be kept in mind, because when we negate that Muslims seek Sharia law in a non-Muslim country, then if what is meant is negating a universal imposition of Islamic law upon everyone, then that is not even what the classical experience of Sharia envisioned within Muslim lands. The full historical experience of Islamic governance attests to this understanding.
This second question is therefore the more important question: What does the Sharia actually ask of Muslims living in a non-Muslim society?
This question occupied many classical scholars.
Some scholars questioned whether Muslims ought to live permanently under non-Muslim rule at all, fearing that the moral and communal dimensions of Sharia will be greatly weakened without the protection of a suitable political order.
Many others, however, concluded that Muslims could indeed live under non-Muslim governments.
Once that was accepted, the question became: what does Sharia require of that community?
Imām al-Māwardī and other Shāfiʿī scholars argued that Muslims who are able to practice their religion should not leave these lands, because others will benefit from their presence. So bringing benefit to others is part of the objective.
Ḥanafī scholars argued that Muslims living under non-Muslim governments should seek to approximate the structures of Sharia within the limits available to them. Practically, this meant appointing communal arbitrators or qadis, establishing Friday prayer leadership, and building communal institutions that reflected Sharia as far as circumstances allowed.[3]
These structures would remain communal rather than legal unless the government itself chose to recognise them with legal authority. Thus some jurists spoke of approaching the non-Muslim government to appoint a Muslim governor to oversee Sharia as law for the Muslim community,[4] as Sharia offered all faith communities this very right under Muslim governments.
In other words, in a world that recognised legal pluralism, where different communities were permitted to regulate aspects of their own affairs, the Sharia encouraged Muslims to occupy that space by approximating Sharia governance for their own community. Sharia as law could be realised to some extent under such non-Muslim governments.
Crucially, there is no desire that Sharia structures should become binding upon non-Muslims. For if Sharia itself does not seek to impose Islamic law upon non-Muslims within a Muslim polity, why would it seek to do so under a non-Muslim one?
This is where much of the misunderstanding lies of people who speak fearfully of ‘Islamic domination’ and the like.
We can now introduce a fourth level in the meaning of Sharia: Sharia is not only a moral code, a communal code and a body of law; it is also a map of civilisation.
Within a Muslim polity, Sharia envisions a Muslim ruler implementing Sharia as law among the Muslim community, for the purpose of upholding the integrity of the Sharia’s communal code and thereby realising the moral benefits of the Sharia’s personal code.
At the same time, that ruler is expected to encourage every other faith community to organise itself according to its own religious convictions in a way that would mirror what the Sharia was offering its community. This includes allowing communities to regulate matters according to beliefs that Muslims themselves reject, whether that involves the consumption of wine, pork, or marital practices abhorrent in Islamic law, such as the incestual marital practices attributed to some Zoroastrian communities.
Sharia, understood as a civilisational framework, trusts communities to regulate themselves according to their extensive faith traditions, and does not interfere.
The wider political vision is therefore one of a faith-positive society, in which different religious communities seek to live faithfully according to their own traditions, while a relatively small central government maintains a common public law that protects life, property and public order.
Seen in this light, just as it would not be acceptable for a minority Christian community to impose Christian law over a Muslim governed polity, as that would be viewed as usurpation, rebellion against the established public order, and something that should be prevented; then similarly the Sharia will not ask a minority Muslim community to do the same in a non-Muslim governed polity. Shaykh Amin’s intervention speaks to this basic understanding.
So what does Sharia ask of Muslims living within a non-Muslim country?
It asks individuals to live morally according to the Sharia as personal code. It asks Muslim communities to establish the institutions necessary to sustain that moral life, because communal structures support and reinforce individual practice. And, in addition to the points raised earlier, the Sharia asks Muslims to honour the public laws of this non-Muslim country.
One could argue that one of the most sacred legal ties in the Sharia is the covenant every resident has with the government under whose protection they live, a covenant which entails respecting the public law of the land. This is considered part of the ‘covenant of safety’ (ʿaqd al-amān) with which a person lives under a polity. The terms of this covenant are binding.
This then is what the Sharia demands of its communities. They are to honour the laws of the land, except where they directly require what the Sharia itself forbids, as Shaykh Amin himself indicated in his article.
There is no possible narrative here of overtaking or replacing the laws of the surrounding society.
However, if the public law of a country empowers the Muslim community to regulate aspects of its own religious life according to Sharia as law, then this is clearly desirable. Sharia as law is praiseworthy to pursue if this condition arises. But this must be done through negotiating with the centre of power, in accordance with the covenant of safety, and not by undermining that covenant. This is very different from seeking to make Sharia the law for everyone else. And I believe that is the point Shaykh Amin was making.
So, in the end, I don’t think we need to find fault with what he said. Rather, there are a number of assumptions built into the question he was answering. Once those assumptions are unpacked, I believe his remarks become much easier to understand.
I have avoided here the details around territoriality: which rules of Sharia – if any – are fundamentally different between Muslim and non-Muslim territories. This and related questions on territoriality I hope to explore in future posts.
We have seen four levels of Sharia.
First is Sharia as a personal moral code. Further investigations of Sharia at this level should reveal what form of human is being fashioned by the Sharia. Is there an ideal homo shariosus?[5] What is the constitution and purpose of Shari’ic man?[6]
Second is Sharia as communal code. Further investigations of Sharia at this level should reveal what form of community and society, what ideal structures, and to what ends, are envisioned and fashioned by the Sharia. This can be undertaken both theoretically and historically. What are the recurring social features in every society ordered by a Sharia-inspired ideal? This level will also reveal how Sharia stands apart from modern legal systems in how it presents community as a foundational legal unit, beyond that of the individual and state. The nature and purpose of this legal theorising of community must be investigated.
Levels One and Two are relevant wherever there are Muslims. They work together to unlock Sharia as culture – a set of shared values, ideals and imaginations that set a direction of travel for this community.
Third is Sharia as enforced law. This is the level that is exclusive to an Islamic polity. It may, however, be conceived in a non-Muslim polity where the non-Muslim government empowers the Muslim community to enact Sharia as law in its own community. A close example to this latter case is modern Singapore: it is a majority non-Muslim country, but enshrined in its constitution is the appointment of a governmental minister of Muslim affairs, under whom a full apparatus of Islamic leadership manages the affairs of the Muslim community. Further investigations of this level should reveal the uniquely governmental features of Sharia – what form of ideal government is conceived, which powers are awarded and constrained for this government?
Fourth is Sharia as civilisational map. The purpose of envisioning this level is to consider Sharia’s role in protecting faith communities to fully practice their own religious codes. This is an essential point to grasp the full constitution of Islamic governance according to Sharia. In this space, Sharia is creating a social cohesion, not by replacing God with a unifying secular narrative to order society, as in modern states, but by bringing God right into the centre, by encouraging His celebration across communities. Further exploration of this should reveal how this form of legal pluralism was theorised and practised, how this legal protection of the multiplicity of faiths sat next to wishing well for all people to know God through His final revelation, and how this impetus to protect the full expression of faith as the organising principle of society might guide Muslims when living as a minority under a non-Muslim polity.
It is my intention to explore these levels and their objectives in future posts.
There are many assumptions within the comments I have made here. I hope to expand these in subsequent writings. Feel free to let me know which parts of this presentation you’d like to learn more about or wish to challenge.
[1] See: Muslims Do Not Subscribe to Sharia Law in the United States – Darul Qasim
[2] Wael Hallaq, Radical separation of Powers: A History of Islamic Constitutionalism (London: Oneworld Academic, 2025), 218-220.
[3] These various positions for Muslims living under non-Muslim rule are summarised well in Khaled Abou El Fadl, “Islamic law and Muslim minorities: The juristic discourse on Muslim minorities from the second/eighth to the eleventh/seventeenth centuries,” Islamic law and society 1.2 (1994): 141-187.
[4] Ibn ʿĀbidīn, Radd al-Muḥtār ʿalā al-Durr al-Mukhtār, (Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1386/1966), vol. 4, pp. 175.
[5] I echo here the notion of homo religiosus, an archetype for the kind of human fashioned by religion.
[6] I echo here Rabbi Soloveitchik’s Halakhic Man, where he undertakes exactly such an investigation into the human being fashioned by the Jewish sacred law, or Halakha.
