SHARIAsource

In this excerpt from his manual on judicial practice, Abū Bakr Ahmad b. ʿAlī al-Jaṣṣāṣ (d. 370/980) discusses "different types of duties to fight based on residence: an enhanced duty existed for people in frontier lands bordering enemy territory as compared to those living in the interior." Like many medieval jurists, Jaṣṣāṣ "privileges the ruler’s authority to utilize the jihād duty" for a variety of reasons, including additional strategic objectives beyond territorial defense. He also states that if a ruler desires to offensively engage the enemy in their territory, then the obligation is on individuals. For more on jihād, read Adnan A. Zulfiqar's essay “Territory and Jurisdiction” in the Roundtable on the History of Islamic International Law on the Islamic Law Blog.

UCLA, School of Law

This course introduces the field of Islamic law. Islamic law is one of the oldest and most significant legal systems in the contemporary age, and this course is designed to give students a firm grounding in its principles, concepts, and doctrines. We will study the history, theory, and the role of Islamic law in the contemporary age. No previous familiarity with the field is necessary, and there are no course prerequisites. All readings are in English. The course will be divided into two main parts: the first will deal with Islamic law in the classical context, while the second will examine the role of Islamic law in the contemporary age. The first half of the course is oriented towards the historical legacy and theoretical framework of the Islamic legal tradition with a special emphasis on the development of the various schools of law. In the second half, we will study the challenges of modernity and Islamic law in the contemporary age, and will examine issues related to Islamic public international law, human rights, women and gender, and violence.

University of Kansas School of Law

Examines the history, doctrine, texts, and role of Islamic law throughout the world. The course focuses on the background and birth of the Arab-Islamic Empire, the life and times of the Prophet Muhammad, the development of Islam, the Moghul and Ottoman Empires, the Qurʾān and Sunna and other sacred texts, the principal schools of Islamic law, the status of women and religious minorities, and basic principles of some of the substantive areas of law, including criminal, family, inheritance, contract, business, and banking law.

University of Pennsylvania

Plaintiff, a Muslim prisoner, challenged prison policies that (1) failed to provide a Muslim chaplain and an adequate number of Islamic services; (2) prohibited religious meetings without a volunteer present; (3) failed to provide ḥalāl meals and a location where he may perform five daily ṣalāt (prayers); and (4) prohibited him from wearing a kufi (prayer cap) or an Islamic medallion outside of his clothing. The Court found that plaintiff had not demonstrated that the prison's policies substantially burdened his ability to practice his religion, as required for a finding of a violation of the First Amendment or the Religious Land Use and Institutionalized Persons Act, and that where plaintiff had demonstrated a substantial burden, the prison had demonstrated that its policies were the least restrictive means of achieving the compelling government interest in safety and security.

This fatwa acknowledges the scourge of terrorism that has recently affected many countries, including Indonesia. It also acknowledges the perceptions held by some that terrorism reflects Islamic techings, that Muslims should be approached with caution, and that acts of terror constitute jihad.

The fatwa considers that terrorism, according to Islamic fiqh, constitutes piracy/unlawful warfare (hirabah). It determines that terrorism is a crime against humanity and civilisation that constitutes a serious threat towards state sovereignty and security, to world peace, as well as to societal welfare. It is transnational organised crime that can be categorised as an extraordinary and indiscriminate crime.

The fatwa distinguishes between terrorism and jihad, stating that terrorism is:

1. designed to cause damage (ifsad) and anarchy/chaos (faudha);
2. intended to create fear and destroy others; and
3. conducted without regulation and limits.

Meanwhile, it states that jihad:

1. brings about improvements (ishlah), albeit via warfare;
2. intends to enforce the religion of Allah and/or defend the rights of the oppressed; and
3. is conducted pursuant to regulations specified by shari'a with a clear enemy in mind.

Legally, the fatwa states that acts of terror are forbidden (haram), while acts of jihad are obligatory (wajib). Persons that commit suicide do so for personal reasons and are pessimists, while martyrs do so as a victim for their religion and the Muslim people, with the intent of obtaining the mercy and pleasure of Allah Subhanahu wa Ta'ala. Suicide bombing is, therefore, forbidden (haram), regardless of whether it is committed in a peaceful area or in a warzone. Martyrdom, however, is permitted.

The defendant, an American Muslim man accused of attending a terrorist training camp in Afghanistan, appealed a conviction for making false declarations to a grand jury, obstructing justice, and for making false material statements to the FBI. Specifically, the defendant was convicted for traveling to Pakistan in 1999 and attending a “jihadist training camp” in Afghanistan. While attending these camps were not a crime in 1999, the defendant subsequently lied about his travels and experiences. He argued that his conviction should be overturned because the lower court admitted irrelevant and unduly prejudicial evidence, and misapplied the sentencing guidelines for terrorism-related convictions. The Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia, concluding that neither the admitted evidence nor the application for the terrorism sentencing guidelines was inappropriate. While the case did not relate to Islamic law directly, the rules governing jihad, and petitioners' views of them, are often based on false definitions of Islamic law.

The plaintiff , an American citizen whose wife was killed in a suicide bombing in Israel, sued Iran under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act (FSIA) (allowing suit against sovereign states that financially sponsor terrorism), for intentional infliction of emotional distress and economic loss due to wrongful death of his wife in a suicide bomber’s attack in Israel. The plaintiff argued that Iran and its Ministry of Information and Security should be held financially liable, as there were financial ties between the group that claimed responsibility for the attack, the Palestinian Islamic Jihad, and Iran. Iran failed to make an appearance or file an answer. The Court entered judgment in favor of the plaintiff, awarding him $10,380,568 for emotional and economic loss.

Additional commentary. The FSIA, 28 U.S.C.A. §1605(a) is the terrorism exception to FSIA and what plaintiffs depend on to get jurisdiction over Iran. §1605(a)(1) stays that “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.” While there is no direct connection to Islamic law, there is a dispute that centers around whether Iran -- an Islamic constitutional state -- sponsors military operations conceived of as jihad under the guise of Islamic law.

On March 6, 2017, President Donald J. Trump, issued a second Executive Order which barred, with certain exceptions, entry to the United States of nationals from predominantly Muslim countries. This order barred nationals from six Muslim-majority countries (the original seven except for Iraq), suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (the International Refugee Assistance Project; HIAS, Inc., the Middle East Studies Association; Muhammed Meteab; Paul Harrison; Ibrahim Ahmed Mohomed; John Does Nos. 1 & 3; and Jane Doe No. 2) filed a Motion for a Temporary Restraining Order or a Preliminary Injunction. In an opinion by U.S. District Judge Theodore D. Chuang, the United States District Court for the District of Maryland found that the revised Executive Order should be halted because the Plaintiffs are likely to establish that Section 2(c) of the revised Executive Order, which issued the travel ban against citizens of the six designated Muslim-majority countries, violates the Constitution and federal law, specifically the Establishment Clause and Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2012).

The Plaintiffs argued that they had standing to assert the claim that the revised Executive Order violated the Establishment Clause because the “anti-Muslim views” underlying the Executive Order caused them stress and anxiety. The Court acknowledged that for “purposes of an Establishment Clause claim, non-economic, intangible harms to “spiritual, value-laden beliefs” can constitute a particularized injury sufficient to support standing. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997). Because the harm suffered by the individual Plaintiffs is “fairly traceable to the challenged conduct” in that the revised Executive Order will result in the disfavoring of Islam, the Court found that the Plaintiffs had standing to assert an Establishment Clause claim.

The Court further determined that in order to withstand an Establishment Clause challenge under the Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) test, (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’” Id. at 612-613 (citations omitted). The Court found that the Plaintiffs presented a convincing case that the revised Executive Order fails the Lemon test because there is substantial, direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. The Plaintiffs primarily relied on statements made by President Trump and his advisors, including a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on,” an interview with CNN in which Trump professed that he believed “Islam hates us” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace,” and a written statement about the December Berlin attack in which he lamented that people “prepared to celebrate the Christmas holiday” were killed by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

Rejecting the argument about neutrality on its face, the Court granted in part and denied in part the Plaintiffs’ motion. The Court issued a preliminary injunction barring enforcement of Section 2(c) of the Executive Order.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.