Bridging Islamic Principles and U.S. Law

Understanding How Sharia and American Law Can Coexist in Family Law, Estate Planning, Marriage Contracts, and Everyday Legal Life

As-salāmu ʿalaykum, everyone. Welcome to Faith, Law, and Legacy. I’m Abed Awad, a New York and New Jersey attorney, international expert in Islamic law, and the founder of Shariawiz.com.

I’ve been an attorney for 27 years. I taught at Rutgers Law School for 17 years, taught at other law schools, and have lectured all over the country on estate planning, Islamic law, family law, and many other topics.

My practice in the Northern New Jersey and New York City area, which I started 27 years ago, has primarily represented Muslim American and Arab-American clients. Our community has unique needs whether cultural, linguistic, or otherwise and those needs should be serviced and addressed.

Over these 27 years of practice, 17 years of teaching Islamic law, and three decades of studying Islamic law, I have developed an approach that looks closely at the relationship between the Sharia and the American legal system.

Before going to law school, I attended graduate school at the University of London, School of Oriental and African Studies, where I studied Islamic law, comparative law, Arabic language, and other subjects to prepare for my legal career.

Can Sharia and American Law Coexist?

As an American-trained lawyer representing clients, I needed to understand the interplay between the Sharia, Islamic law, and the legal system in this country.

Are they able to coexist?

Can a Muslim comply with his religious faith and still be consistent with American law and the law of where he lives?

The answer is absolutely.

One of the reasons is that many people in our community don’t understand the complexity and sophistication of the Sharia.

One of the reasons I’m doing this podcast is to take advantage of this platform so that I can share my experience and my engagement with the Sharia with people throughout the United States. They can benefit from both an American legal perspective and a Sharia perspective.

Understanding Sharia and Fiqh

Let’s start with the basics.

The Sharia is a methodology, an epistemology that produces knowledge. The outcome of that process is what we call fiqh.

All the scholars agree that fiqh is diverse and not certain.

In other words, anytime you apply unique factual circumstances to a problem and then apply the tools of the Sharia reviewing the Quran, looking at the Hadith, using analogy, looking at custom, and other tools a particular scholar may arrive at a different fiqh outcome than another scholar.

That doesn’t make one scholar correct and the other incorrect.

In fact, the Sharia encourages scholars to engage in ijtihad. If they get the answer correctly, they’re doubly rewarded. But if they don’t get it correctly, they’re still rewarded because the reward is for the process of engaging with the divine text to determine or construct meaning for a particular circumstance.

The fiqh itself is very diverse.

In fact, the scholars defined fiqh as ilm al-ikhtilaf the science of difference.

That alone should give you the idea that the Sharia is extremely flexible and fixated on the gray, not simply on black and white.

Under the Sharia, every Muslim’s conduct and actions fall under one of five standards or benchmarks. Halal and haram are part of those standards, with disliked and recommended actions and other categories in between.

The Sharia focuses on the gray because divine will cannot be monopolized. There can be no monopoly over divine will.

It is always humans engaging with the text, and we as humans are imperfect. We may not get the correct answer. We may miss the actual intent of a particular text or circumstance.

When we look at the Sharia as a methodology that produces knowledge, and we look at American Muslims living in the United States, we can consider the unique factual circumstances of American Muslims and apply this epistemology and methodology to come up with answers to many of the issues and questions Muslim Americans are asking.

With this framework, this is how I have practiced as an American-trained lawyer engaging with the Sharia and looking at the bigger picture.

Marriage Contracts, Mahr, and U.S. Courts

Let’s bring this down to some practical examples.

In the family law area, Muslims may marry with an Imam and sign a marriage contract a nikahnamah or aqd zawaj that includes a provision regarding the dower, or mahr.

The interplay becomes important in a U.S. court setting where a Muslim woman is requesting that her mahr be enforced.

There may be challenges if the court considers that enforcement to require interpreting Islamic law.

This is where there can be a disconnect with American attorneys who are not trained in the Sharia or do not understand the Sharia.

When we go to court to enforce a marriage contract, we never ask the court to enforce Islamic law.

We always ask the court to enforce American contract law.

We look at the secular terms of that marriage contract. We provide the court with the context and background of the Muslim tradition.

What were the expectations of the parties when they entered into this contract? What does the contract mean? How do Muslims marry?

This provides the factual context for the court to better understand what was going on when the parties entered into the contract.

As long as the court can apply New Jersey law, California law, or the applicable state’s law of contracts, and the agreement passes all of those elements, it can be enforceable.

It doesn’t matter that it was part of a Muslim ceremony.

But if you emphasize that this is Islamic law and that’s what you’re asking the court to apply, the court can’t apply it because of the separation of state and church. Courts do not have the authority to interpret or comment on Islamic law.

Estate Planning and Sharia-Compliant Wills

The same interplay comes up with estate planning.

We will be talking a lot in this podcast about family law, prenuptial agreements, talaq, the different types of talaq, family waqfs, trusts, Islamic wills, charitable trusts, and charitable waqfs.

We’ll also talk about practical cases that have come through my office over the past 27 years so that you can benefit from this experience and better understand your own legal circumstances and needs in this space.

In the estate planning space, for example, I would often have clients come into the office and say:

“We need a will.”

So I would ask them:

“Do you want a Sharia-compliant will or do you want a secular will?”

Many clients would respond:

“Can you explain to me the difference?”

When you explain the difference, specifically as it pertains to inheritance shares, questions often arise.

We’re going to do an entire episode on inheritance shares, but one example is that a wife in a long-term marriage with children receives one-eighth of the husband’s estate.

That had context and reasons for it throughout Islamic history and is based on the Quranic divine directive regarding the shares.

Some Muslim spouses would then say:

“But my wife has been working with me. We share everything together. We pool our money. She manages the finances. She left her career to take care of the kids and allowed me to go do this other work. Is there anything in the Sharia that would take that into account at the time of my death? Because this one-eighth may not seem to fit my circumstances.”

The truth of the matter is that the Sharia is so sophisticated that it has many solutions for you during your lifetime.

That’s where I explain to clients that you don’t necessarily have to go the secular route. You can stay within your tradition, and there are adjustments that can be made.

Solutions Within the Sharia Tradition

One adjustment can involve titling property in your wife’s name during your lifetime.

You can provide your wife with a life estate.

You can amend your deferred dower to a different amount.

You can also acknowledge all of her work and support throughout the marriage because she should have been compensated for that time.

We’ll be talking about the Sharia authorities relating to these items in future podcasts and discussing these examples in much more detail.

Faith, Law, and Legacy

The objective here is for people to learn.

I’m happy to have listeners send us questions, and we’re happy to answer those questions.

I’m looking forward to having an engaging dialogue and conversation with listeners to better understand the Sharia in America, to better understand the sophistication and flexibility of our traditions, and to better understand that we can remain true to our faith, aligned with our values, and still be patriotic Americans consistent with American law.

We’re not doing anything outside the parameters allowed under U.S. law.

Thank you, everybody, for listening today.

If you have any questions, please email us at awad@awadkhoury.com or visit abedawad.com.

Please follow our podcast and tell a friend. We really want to build a listening audience where we can engage with some of the most important intersections between Islamic law and American law in the country.

Thank you, and I look forward to our next episode.