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 Abstract

Excerpted From: Mark Fathi Massoud and Kathleen M. Moore, Shari'a Consciousness: Law and Lived Religion among California Muslims, 45 Law and Social Inquiry 787 (August, 2020) (69 Footnotes) (Full Document)

In a 2010 referendum, Oklahoma voters passed by a 70 percent majority a constitutional amendment called “Save Our State,” which forbids state judges from considering shari'a (commonly translated as Islamic law) in their decisions. Although Oklahoma's measure was eventually struck down by a federal appeals court, forty-two other states later introduced more than two hundred anti-shari'a bills of legislation. Legislators were not alone; citizen battles against shari'a reached a tipping point in the summer of 2017, when thousands of anti-Muslim activists in twenty-nine cities took to the streets in a national “March Against Sharia.” Many of these protests were sponsored by Act for America, whose founder said that any “Muslim ... who believes in the teachings of the Qur'an, cannot be a loyal citizen to the United States” (Beinart 2017).

Wealthy individuals and charitable foundations have given millions of dollars to self-proclaimed “Islam experts” to travel around the United States endorsing model legislation that vilifies Islam. They have produced research reports, participated in litigation, and appeared on news programs to describe the dangers they feel Islam poses to America. Anti-shari'a bills were a leading maneuver in their efforts to fuel anti-Muslim attitudes, which got people asking, “What is shari'a?” Critics of the movement said its most tangible impact was to spread an alarmist message about Islam aimed at keeping Muslims on the margins of American life.

These efforts beg the question of what the word shari'a means to Muslims, and the extent to which shari'a is relevant in Muslim Americans' lives. In this historical context fraught with particular challenges for Muslim Americans, we sought to study how Muslims understood shari'a. To answer this question, we conducted fieldwork across California, home to one of America's largest and most diverse groups of Muslims. We met participants in the places where Muslims are producing (and challenging) knowledge about shari'a--in youth groups, college campuses, mosques, Quranic study circles, workplaces, restaurants, and homes. We sought to gauge evolving and fluid perceptions of shari'a and to learn how legal and religious values are generated, debated, and transformed. By providing results from a study of Muslims in California, this article shows how shari'a is lived, from urban to suburban and rural settings and from a variety of ethnic backgrounds. In the political context of social marginalization, we found that many Muslims in this study worked to educate themselves about faith, social justice, and rights in order to practice ethical citizenship. This article also uncovers how Muslims have responded to the fear-based portrayal of shari'a as anti-American, emphasizing the spirit of shari'a--at once religious and legal--as a rich and diverse ethical and normative code. Defining shari'a, especially in America, is a political act, and many of the Muslims in our study saw it as a guide for ethical living, not necessarily as a state-posited law. Demonstrating this relationship between law and religion in everyday life is a particularly useful path to decentering the law, even as we demonstrate the power of law to organize experience.

To investigate how shari'a and anti-shari'a hate shape legal consciousness, this article adopts a grassroots approach to the study of law from the perspective of those who encounter and reject populist understandings of Islam. Combining the sociolegal literature on legal consciousness with religious studies literature on lived religion, we contend that anti-shari'a populism exists alongside a burgeoning Islamic-American “spring” . Muslims are learning about and adopting principles of shari'a to make legal decisions or voting choices and to challenge marginalization, including when legislative proposals attempt to eliminate shari'a. Law and religion are interpretive frameworks that combine and sometimes contradict one another; this article uncovers how people see shari'a as having both legalistic and extralegal dimensions and, more broadly, how religion and religious law stand in relation to other interpretive and catalyzing frames for legal activism, including human rights and social justice.

Scholars have labeled the fear, anger, or hostility toward Islam as “Islamophobia” or “anti-Muslim racism”. Because Muslims and Islamic faith are in the public eye and subject to negative publicity in political discourses, the term shari'a has become a shibboleth--used with the intent of generating fear that a repressive Islamic theocracy might be imposed on an unwilling and unsuspecting American public. Deeply ingrained anxieties against Muslims are also shaping Muslims' consciousness of the law. In calling attention to the role religion plays in shaping legal consciousness, we do not diminish the importance of other variables such as race, gender, and class, which intersected with religion for many of the people we met.

The othering of Islam echoes a centuries-long history of racism against ethnic minority groups in the United States. The patterns driving Islamophobia are also strikingly similar to those driving anti-Semitism; both use cultural and phenotypical attributes to dehumanize ethnic or religious minorities. Though present in some form since US independence, the drive to dehumanize religious minorities has taken a remarkable transnational turn against shari'a since the mid-2000s. Political alarmism has cut across political lines and provoked ideas that welcoming Muslims also means ushering in immigrants who refuse to integrate or who support medieval legal systems that relegate women and religious minorities to second-class citizenship.

But anti-Muslim hate departs from other forms of racism and discrimination in its unusual preoccupation with the law. Virulent opposition to mosque-building in the United States and anxieties about “creeping shari'a” portray Muslim Americans as supporters of terrorism and link Muslim “foreignness” with a threat to the US legal system. For instance, in a 2009 Senate Foreign Relations Committee hearing, Yale Law School Dean Harold Koh's views on transnationalism nearly derailed his confirmation as legal adviser to the US State Department because his detractors distorted his position on shari'a as foreign law. The hatred of shari'a is associated with a fear that any accommodation of Islam--particularly by state and federal legal systems--poses a threat to democratic values, the separation of church and state, and the rule of law. Thus, people's understandings or misunderstandings of shari'a as a foreign and threatening legal system render Islam into a visible religious and legal problem.

Law and society literature has given little attention to how anxiety around shari'a shapes the perception of Islam as an overly legalistic religion. Scholarship on the recognition and accommodation of Islamic law has focused on American courts and the judicial recognition of Islam in family law, contract law, or arbitration and court-ordered alternative dispute resolution. This article, instead, offers an analysis based on the voices of Muslims who experience shari'a not inside courts but outside of them, in the ordinariness of daily living. Muslims in our study responded to the othering of Islam through an emerging legal consciousness that incorporated facets of shari'a. Our interviews with them demonstrate how religion works as an ethical framework for action, acting as a check on the lapses of American law and politics at the very moment that national political discourse seemed least likely to protect Muslims from marginalization.

Legal consciousness exists in political, social, and religious context. Refocusing our attention on nonstate normative orders--and decentering the law--helps uncover how people invoke religious sensibilities to respond to inequality by sometimes challenging and at other times enacting the status quo. While this article is based on ethnographic fieldwork in one place, time, and faith, the results of our study may not be unique to California, to Islam, or to an epoch of rising populism. Rather, shari'a is part of a narrative long circulating in global politics and shaping ideas about ethical citizenship for people facing government scrutiny, including in India, Malaysia, Nigeria, Sudan, and Kenya at different times. Yet, like law, religion is not an isolated, stable, and coherent category, and it cannot be singled out from other aspects of human experience like work, play, governance, and exchange. In exploring how Muslims draw on shari'a, including as a source of social justice, we contribute to transnational sociolegal scholarship that brings religion to bear on legal consciousness. In showing how racism and sexism shape interest in shari'a and investigating what shari'a does and does not do for those who invoke it, we respond to Susan Silbey's call to theorize the relationship between law and inequality. Relying on law's authority or invoking religion may preserve racial and gender hierarchies, but the Muslims in our study invoked religion precisely to challenge those hierarchies.

US Supreme Court cases have upheld constitutional protections of religious attire and grooming. But Muslims in the United States still encounter government-sanctioned profiling and surveillance practices, including through community-based “countering violent extremism” programs and the “Muslim travel ban” of 2017. When the Muslims in this study perceived that US laws fell short of their aspirations--from laws that target minorities and immigrants to issues surrounding prison overcrowding, poverty, or the failure to protect LGBTQ rights--some of them instead turned to and mobilized Islamic values of fairness, equality, and justice as their framework for critique. They used shari'a to challenge and expose flaws in state and society when (to them) state laws failed to live up to the values of fairness or justice. By aligning shari'a with social justice standards, many of the Muslims in this study made shari'a a source of their legal consciousness. In this way, shari'a was not just a legal ideal but an ethical standard by which they judged the US legal system's ability to produce just outcomes for the poor or marginalized. Thus, shari'a matters not only because anti-Muslim discourse makes the word itself cogent and visible to non-Muslims. It also matters to the development of legal consciousness, particularly for people who confront a virulent and legalistic form of racism rooted in the fear of Islamic law as un-American.

Recognizing the failure of law to fulfill its aspirations of fairness and justice, Muslims are countering narrow representations of Islam as an intrinsic and dangerous alterity. Their experiences of discrimination bring into sharper relief how legal consciousness is shaped by everyday beliefs and practices understood as religious. Our study finds three formative stages of individual legal consciousness that, together, form the nascence of mobilization: perceiving shari'a and discriminatory depictions of it, educating oneself about shari'a's social and political relevance, and forming an intention for social change. Documenting these three interrelated stages of personal development uncovers how group identity formation processes are a precursor to legal mobilization.

Drawing on interviews with Muslims across California, this article illuminates the relationship between legal consciousness, lived religious experience, and the battle against inequality. Some work in law and society has illustrated the interrelationship of rights, religion, and politics (see, e.g., Chua 2019; Darian-Smith 2010; Wilson and Hollis-Brusky 2018). But much of the sociolegal literature on marginalization and disputing in twenty-first century America does not treat religion--especially Islam--seriously, and most of the literature on law and religion does not treat legal consciousness seriously. Inattentiveness to the ways religion matters to inequality and legal consciousness has stunted the development of a sociolegal theory on religion. Our empirical study of Muslim experiences of shari'a in California exposes an alternative site to understand the consequences of anti-Muslim populism, and how shari'a matters (and fails to matter) in the lives of Muslims. By addressing the interplay between legal consciousness and everyday religious practice, at the understudied intersection of sociolegal studies and religious studies, this article reveals the complex processes through which ordinary people make sense of the multiple normative worlds they inhabit (see, e.g., Greenhouse 1986).

In adopting a “lived” or bottom-up approach to religion and law, this study privileges the meanings people give to and the intentions they derive from shari'a, shifting the discourse on Islam away from its colonialist or Islamist history and toward Muslim Americans' actual experiences. To do so, this article first explains the concept of shari'a and provides a history of its public representation in national discourses as a source of fear of Muslims and foreign law. Second, the article situates our research investigating the lived experience of law and religion in the context of sociolegal literature on legal consciousness and religion. Third, we describe the field research methods used in this inquiry. Fourth, we explain how the participants in our study experienced the concept and term, shari'a, by perceiving shari'a and discriminatory representations of it, educating themselves about shari'a, and forming intentions for social change. Finally, we conclude by discussing the implications of this inquiry into shari'a at this historical moment in the United States for the study of legal consciousness and mobilization among religious and ethnic minorities.

[. . .]

In this article, we have tried to show three main points about how shari'a shapes legal consciousness in the United States. First, populist discrimination against Muslims and Islam saturates everyday experience, and certain depictions of shari'a and of the US legal system are instrumental for that project. Second, the analysis we presented of Californian Muslim responses to anti-shari'a populism demonstrated the importance of studying how religious minorities experience and learn particular lessons about the intersection of law and faith. Third, Muslims we met educated themselves about faith, law, and rights in order to be better positioned to lead ethical lives in the context of a broader fear of shari'a. The othering of Muslims emerged in part when people defined shari'a narrowly as criminal law. But when Muslims faced inequality, shari'a became a guide to ethical living.

Far from making unreasonable or illiberal demands on American society, as alarmists depict, the Muslims in this study did not expect shari'a to be implemented as such into US law. Instead, many consciously followed shari'a principles to answer everyday life questions, including around finances, marriage and divorce, dietary restrictions, and how to treat the environment. Our respondents were reflective about the place of shari'a in their lives and the impact of shari'a on their interactions with a dominant, non-Muslim society.

According to a study released by the Institute for Social and Public Understanding, a nonprofit think tank, 42 percent of Muslims with school-aged children reported their children experienced bullying because of their faith, compared to 23 percent of Jewish and 20 percent of Christian parents. A 2018 survey by the Council on American-Islamic Relations revealed that 53 percent of California's Muslim youth between the ages of eleven and eighteen reported being bullied over their religion--more than twice the national average. And a child in Ventura, California, reportedly missed several days of school in 2017 “because he was afraid of his teacher and classmates” after his teacher printed and handed to him a website detailing “so-called aspects of Islamic Sharia ... including how a man could marry an infant ... and that [he] has 'sexual rights' over a woman who is not wearing a hijab” (Bharath 2018). For Muslim youth, bullying is the new norm, with their tormenters using shari'a as a cudgel or weapon of shame against them.

The critique of Islam embedded in this type of legalistic bullying around shari'a has, in part, animated Muslim Americans' efforts to shift the discourse or to ensure continuity with an American ethos. Many of the Muslims we met engaged Islam (and shari'a as a part of Islam) because of what they argued was its flexible and accommodating nature and its inherent compatibility with a liberal ethos. Their concerns about shari'a dovetailed with concerns over authority, inclusion, and justice. More to the point, we found shari'a consciousness to reproduce normative authority rather than simply pronounce ethical standards. The people we met were attuned to the obligations and logics of multiple, overlapping communities.

Non-Muslim American interest in shari'a has largely been triggered by a fear that it constitutes a challenge or even a threat to Americans' shared identity and values. Electoral politics, the far right, and mainstream media, for instance, continue to warn about the dangers of “creeping shari'a.” But there is no empirical evidence to show that shari'a is supplanting civil or criminal law in the United States. Negative portrayals of shari'a have long been associated with terrorism and the most extreme forms of corporal punishment, which was a source of great frustration for Californian Muslims in our study. The blame fell on the media and politicians for having framed a national discourse in ways that misrepresented shari'a in order to elicit Islamophobic sentiment. Despite this, many of the people we interviewed were able to live in accordance with shari'a principles around life, liberty, and the protection of family and faith.

Muslim Americans are not alone in shaping legal consciousness through attention to shari'a. In Nigeria, India, and Egypt, among other places, colonial legacies and postcolonial violence and marginalization have triggered support for shari'a when governments seem unwilling to provide basic security and freedom from injustice (see, e.g., Eltantawi 2017). As democratic political systems collapse into populism, people may begin to rely on shari'a or what they identify as religious law more broadly as a means for law and order, operating outside of but in dynamic relation to state courts (Lemons 2019).

For the authors of this study, participating in this research has created space for us to see the category of shari'a as a matter of comparative law and society studies. The intersection of sociolegal and religious studies marks out a complex, multilayered, and shifting terrain in which shari'a is a referent for legal consciousness, an object of public policy, and an administrative concern, simultaneously separate from the state and mediating the relation between state and citizen. By following the nexus of legal consciousness and lived religion, our accounts of the perceptions and behaviors of some Muslims in California shed light on transformations that occur in legal and religious consciousness, particularly when minorities are subjected to entrenched forms of discrimination. Without an adequate understanding of how Muslims experience law, and how the concept of shari'a is deployed to disguise or justify inequality, we are left with conditions that fuel greater anxiety and othering. This process has implications for how Muslims, as subjects of discourse, rework the narrative of US law.

Future research is needed to examine additional vantage points of the othering of Muslims, and how Islam is changed through the law itself, not only in deployments of shari'a in political discourse but also in legislative remarks and bills. Doing so would continue to develop interdisciplinary approaches to law and society that draw upon the relationship between religion, law, and populism. Muslims in the United States live and work within “not only an imagined Islam but a contrived America,” and neither are free from suffering and discrimination. Many Muslim Americans react to anti-Muslim discourse like ban-shari'a legislation as an annoying if not life-threatening aberration in the political sphere. This response generates self-study of faith and law, as well as self-study of how to construct ethical frameworks to navigate the boundaries between state law and private intentions. While many of our respondents expressed concern that lawmakers and the broader public just “didn't get it,” their efforts to bring together law and faith underscore how religiosity shapes both the liberal subject and the legal mobilizer.

Mark Fathi Massoud is Associate Professor of Politics and Director of the Legal Studies Program at the University of California, Santa Cruz

Kathleen M. Moore is Professor of Religious Studies and Director of the Legal Humanities Initiative at the University of California, Santa Barbara

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