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Islamic Law: United States
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The most difficult part of Islamic Law for most westerners to grasp is that there is no separation of church and state. The religion of Islam and the government are one. Islamic Law is controlled, ruled and regulated by the Islamic religion. The theocracy controls all public and private matters. Government, law and religion are one. There are varying degrees of this concept in many nations, but all law, government and civil authority rests upon it and it is a part of Islamic religion.
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The Islamic jurists investigated Fiscal Law in various places in their general legal works, under such headings as “The Zakh Tax”, “Tariffs”, “Land Tax”, and “Tax on Discovered Treasure” as well as others. These issues have been dealt with in specific essays as well, such as Kitb al-Kharj (The Book of Land Tax) by Abû Yûsuf, the Chief Justice in the era of the Caliph Hrûn al-Rashîd. This same topic, in more general terms, is dealt with when discussing the injunctions relating to the state treasury, its sources of revenue, the types of wealth it deals with, and how that wealth is to be allocated.
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The instituting of a national law that incorporates both civil and spiritual laws is one of the principles that makes it difficult for Americans to understand Islamic nations. It is even more difficult for the people in those Islamic nations to understand a government that does not enforce morality as well as civil law. Since they do not understand the principle of the separation of the government from the religion, when people in Islamic nations see Western nation’s magazines with nudity or near nudity, they believe that what they are seeing is Christianity! After all, they are told that the United States is a Christian nation. When they see a satellite program that originates from Playboy, they think that is Christianity! When they see a television commercial for any kind of alcoholic beverage, they think that is Christianity!
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The ancient schools of law themselves represented, in one aspect, an Islamic opposition to popular andadministrativepracticeunderthe later Umayyads, and the opposition group which developed into the Traditionist movement emphasized this tendency. As long as a Companion of the Prophet had been the final authority for the doctrine of a school on a particular point, it was sufficient for a divergent doctrine to be put under the aegis of another Companion of equal or even higher authority, as happened in Kufa where all kinds of minority opinions were attributed to the Caliph 'Ali, who had made Kufa his capital. But after the general authority of the Prophet himself had been invoked by identifying the established doctrine with his sunna, a more specific reference to him was needed, and there appeared detailed statements or 'Traditions' which claimed to be the reports of ear- or eye-witnesses on the words or acts of the Prophet, handed down orally by an uninterrupted chain of trustworthy persons. Very soon the emphasis shifted from proposing certain opinions in opposition to the ancient schools to disseminating Traditions from the Prophet as such, and the movement of the Traditionists, which was to develop into a separate branch of Islamic religious learning, came into being. It was the main thesis of the Traditionists that formal Traditions from the Prophet superseded the living tradition of the school. The Traditionists existed in all great centres of Islam, where they formed groups in opposition to, but ... in contact with, the local schools of law.
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Jackson, Sherman A. Islamic law and the state : the constitutional jurisprudence of Shihab al-Din al-Qarafi / by Sherman A. Jackson. (Studies in Islamic law and society, 1384-1130 ; v. 1) Leiden, Netherlands ; New York : E.J. Brill, 1996.
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