The recent announcement of the establishment of a “caliphate” by the “Islamic State”—also known as the Islamic State of Iraq and the Levant (ISIL) or the Islamic State of Iraq and Syria (ISIS)—has put Islamic law back in the headlines. In the ensuing, polarizing debates, images of violence and extremism are countered with defensive posturing about the “true” nature of Islamic law. This endless tug-of-war between delegitimizing and legitimizing “Islamic law” confuses and obfuscates, rather than educates or clarifies, because it is focused on a false premise: the content or meaning of Islamic law is not the issue, but the prejudicial politicization of Islamic law is. Too much attention is given to “recuperating” Islamic law, rather than investigating how or why it is an emblem for anti-Muslim prejudice.
Scholarship cannot be isolated from broader processes of knowledge production—processes that resemble an industrial-style conveyor line. Knowingly or unknowingly, academics often produce small parts that fit into an ambiguous product moving along a conveyor belt; when that part is about Islamic law, the product being manufactured is too often a weapon of prejudice. Seemingly innocuous acts—such as not translating terms—contribute to a systemic and pernicious phenomenon. In the US, Islamic law is propagandized in the public sphere, politicized in the courtroom, and profiteered from in the academy. The propagandized version of Islamic law defines it as a rigid code that promotes violence or oppression. The political version of Islamic law defines it as a proxy for terrorism or as the antithesis of US law. The academic profiteering version of Islamic law defines it to satisfy the interests of propagandizers and politicians.
By propagating prejudicial assumptions about Islamic law, these three overlapping spaces generate what Noam Chomsky describes as a propaganda system. The background for this propaganda system is a general climate of Islamophobia (or anti-Muslim prejudice). In 2011, the Center for American Progress authored “Fear, Inc.,” a report on the Islamophobia network in the United States, which revealed that “a small, tightly networked group of misinformation experts” are responsible for producing and spreading much of the Islamophobic propaganda in the United States. In 2013, the Council on American Islamic Relations (CAIR) issued a report on anti-Muslim bills and on more than sixty anti-Muslim organizations in the US. In May 2014, Muslim Advocates published a report discussing anti-Muslim content online, focusing on public officials, hate groups, and individuals. The propagandizing, politicizing, and profiteering of Islamic law in the contemporary United States is embedded within broader anti-Muslim bigotry. Islamic law is a particularly salient target for anti-Muslim prejudice because it can be attacked and denigrated without directly attacking Muslims as a group: anti-Islamic law sentiment is a proxy for deeper intolerance.
Propagandizing Islamic Law in Public Discourse
In US public discourse, the term sharia is commonly used instead of the more accurate English term, Islamic law. While it is prevalent, this usage is imprecise and the very use of the word is best described as propaganda. Repeatedly using the non-translated term (“sharia”), which sounds strange, foreign, and dangerous, is a mechanism for othering and vilifying Muslims. Promoters of Islamophobia consistently abuse and propagate the term “sharia” because it is supremely effective: since “Islamic law” is not as scary as “sharia,” an “anti-Islamic law” slogan simply would not have the same propaganda effect. Indeed, there are few media reports about “sharia” that present it in a positive light. Instead, “sharia” is consistently associated with negative depictions and misconceptions. The correct meaning of sharia is divine law; it is an abstract concept. Humans must rely on their interpretive faculties to ascertain what the divine laws are and how they are to be applied. Since the process of interpreting divine law is not uniform or singular, there are multiple perspectives on what Islamic law should be, and, consequently, there are many schools of Islamic legal thought. The “sharia” product is quite distinct from the realities and pluralities of Islamic law.
In the United States, paranoia about a potential invasion of “sharia” has animated recent political discourse. One example is the debate over Arizona Senate Bill 1062, which proposed to protect businesses from lawsuits if they used religion in ways that would otherwise be considered discriminatory; it was designed primarily to protect Christian organizations. During the campaign against this bill, several public commentators pointed out that it would allow Muslims adhering to “sharia” to discriminate against members of other religious communities. A key political strategy for attacking the bill was to claim that it would result in the so-called “legalization of sharia law” (sic).
This particular example is simply an extension of recent bans against “sharia” in the US and in Europe. Several US states have passed legislation known as “anti-sharia” bills, which intend to prohibit courts from applying Islamic law. While this recent “sharia” scare has been debunked, the irrationality of the “sharia” bans needs to be reemphasized: First, Islamic law has already been applied in US courts for many years because private agreements (particularly contracts) can stipulate specific outcomes that apply Islamic law. This is based on a choice of law doctrine that allows US courts to apply foreign legal systems whenever they enforce contracts that are governed by foreign laws (religious or otherwise). Second, Muslims in the United States are a relatively small minority and have never expressed an interest in replacing US law with Islamic law. Nor is such an objective even possible given the existing institutional and legal constraints and the absence of consensus among Muslims on what constitutes Islamic law (or, relatedly, an Islamic state). Islamic law is not a single code, but a catchall term for numerous and diverse laws. And finally, US courts most frequently deal with Islamic law not in situations of applying it, but rather in trying it—that is, in judging what it means to support Islamic law.
Politicizing Islamic Law in Courtrooms
Recent terrorism trials politicize a defendant’s adherence to “sharia” as a proxy for terrorist intentions. Just as the public sphere contributes to fabricating a propaganda product (“sharia”), the courtroom contributes to manufacturing a politicized product: the “jihadi.” In Arabic, jihad means “to struggle,” mujahid means “the person who struggles,” and “jihadi” is an adjective. In contrast, in contemporary US discourse, a “jihadi” is incorrectly used as a noun to describe a Muslim extremist who uses violence and seeks to implement Islamic law. Here again, not translating an easily translatable term results in confusing several distinctive meanings: revolutionary, resistance fighter, guerrilla fighter, rebel, mercenary, militia member, or extremist. The untranslated term indicates that an individual is Muslim, but provides no information about his situation, beliefs, or acts. Consequently, the “jihadi” product facilitates a process by which US courts treat individuals—including US citizens—not as civilians, but as ill-defined “terrorists." (This is part of a broader practice of assuming or concocting causal links between Islam, terrorism, and Muslim minorities.)
Recent US court cases suggest that the prejudicial effects of “jihadi” identification in domestic terrorism cases parallel gang affiliation in criminal cases. Just as US law treats gang affiliation as a justification for harsher criminal penalties, it treats suspected “jihadi” affiliation as a justification for preemptive prosecution and for lowered evidentiary standards. This is why US citizens suspected of being “jihadis” lose their due process rights: not simply because of the nature of their crime, but also because of the nature of their associations, which is intimately related to their identity. Some Muslim defendants and witnesses are impugned for their belief in Islamic law, or, more specifically, dissimulation (taqiyyah). Belief in or commitment to the propaganda product of “sharia” is politicized in US courtrooms as a proxy for the guilt of a racialized group.
Politicized trials also create another product: the expert (often an academic) who can identify a “jihadi.” In 2013, the Ninth US Circuit Court of Appeals affirmed the 2006 conviction of Hamid Hayat for providing material support to terrorists because he allegedly attended a terrorist training camp in Pakistan. The government presented expert witness testimony that a verse of the Quran that Hayat had in his pocket was proof of his “jihadi heart and jihadi mind.” An expert may testify about the linguistic and social meaning of a Quranic verse, but it is beyond his expertise to impute a motive or intent for someone carrying such a verse in his wallet. This case also demonstrates the parallels between “jihadi” and gang affiliation: the Quranic verse in the defendant’s wallet was rendered equivalent to the shirt color or tattoo of a suspected gang member. When experts identify a so-called “jihadi,” they inevitably contribute to the politicization of a judicial process that should be focused on a thorough examination of actual evidence of criminal wrongdoing. Instead, the courtroom becomes a trial about the defendant’s identity and social network, resulting in prejudicial assumptions about his motive and intent.
Terrorism cases in the US are not about substantive engagement with Islamic legal issues; they are fundamentally about Muslim identity. And, not surprisingly, identity politics affect both the defendant on trial and the expert witnesses participating in the trial. Expert witnesses are frequently identified based on their ethnic or religious background and their testimony is evaluated based on that information, instead of purely on their credentials. The absurdity of this situation must be emphasized: a scholar’s heritage or religious beliefs is not relevant because every scholar is biased in some way. By marking the identity of expert witnesses, a courtroom debate about opposing interpretations of Islamic texts or Islamic legal ideas becomes the performance of caricatures: “good Muslims” versus “bad Muslims” versus non-Muslims. This courtroom scene is a microcosm of a more expansive US government policy of constructing a “moderate” version of Islam globally. The courtroom’s demand for expert witnesses or consultants creates an incentive for scholars to attempt to project “moderation” in order to continue receiving lucrative consulting requests. Put simply, courtrooms sometimes create demands for politicized legal products (“jihadi” experts) who are more concerned with providing definitive answers in the courtroom than with recognizing their own limitations.
Of course, courtrooms also politicize Islamic law outside terrorism trials. As Mohammad Fadel has noted, US judges evaluate Islamic law “in a spirit of condescension and stereotype” as the antithesis of US law. Consequently, the version of Islamic law that appears in US law is burdened by Islamophobic ideas. In the courtroom, as in public discourse, the “sharia” product is a stand-in for a prejudicial identity category. The intersection of the media’s propaganda and the courtroom’s politicization of Muslim identity is evident in how crimes and criminals are differentiated: non-Muslims who commit violent acts are often presumed to be mentally disturbed, but Muslims who commit similar acts are presumed to be terrorists (i.e., “jihadis”). This suspicion of Muslims is also evident in their widespread surveillance. It needs to be emphasized, yet again, that the combination of propagandizing and politicizing Muslim identity echoes fascist, anti-Semitic precedents in twentieth-century Europe. (Notably, Nazi propaganda attacked Jewish law, including the Talmud.) The public sphere and the courtroom are spaces that misconstrue Muslim identity as a race in ways that imply a questioning of a Muslim’s ability to be a full citizen.
Profiteering from Islamic Law in the Academy
The public sphere’s propagandized and politicized versions of Islamic law overpower the academy. There are, of course, scholars actively working to counter anti-Islamic law myths. But there are also academics who accept the othering of Islamic law in order to profit from it. I have previously written about the multiple normative demands on Islamic studies scholarship and how the legal academy creates incentives for a commercialized version of Islamic law. But subtleties need more attention: a great deal of scholarship endorses the terminology of propagandizers and politicians by marking Islamic law as a discrete product. Let me offer one specific example: There is increasing demand for practical Islamic finance courses, workshops, and conferences at US law and business schools, much of which is motivated by profit. While it is tempting to presume that contemporary Islamic finance is an exceptional, innovative contribution by Muslims to the global economy, it is actually a cottage industry within modern global capitalism. The contemporary Islamic finance and banking industry largely emerged as the result of wealthy Muslims hiring Western consultants to insulate their financial holdings from accusations of being un-Islamic. As the industry has grown, various corporations and governments have exploited Islamic finance in pursuit of their own economic self-interest, often marketing financial products as “Islamic”—or, more problematically, “sharia compliant.” In fact, these products do not substantively differ from their non-Islamic counterparts—except that they often lack the same disclosure and anti-fraud protections afforded their conventional equivalents. Some academics profiteer directly from Islamic law by marketing Islamic finance as a distinct specialization necessitating collaboration between the academy and the financial industry. Other academics are complicit or complacent in their silence.
While profiteering is widespread in the academy, the politically sensitive place of Islamic law means that profiteering from it has precarious, real-world consequences. Academic engagement with the propagandized versions of Islamic law has serious implications in the courtroom and in the public sphere. Specialists who actively seek media or legal consulting opportunities to supplement their incomes (or to boost their professional stature) often do not recognize the ways in which this goal constrains, or even negates, their scholarship. Relatedly, some universities hire Muslim academics for identity politics reasons and thereby make the offensive and egregious error of confusing “Islamic studies scholar” with “Muslim.” As noted, this conflation of expertise and identity is precisely what occurs in the public sphere and in courtrooms as part of a broader politicization of Muslim identity. By inviting or permitting this tokenization, some Islamic studies scholars with Muslim backgrounds place their own short-term self-interest ahead of the long-term interest of serious scholarship and its differentiation between “native informant” and scholar. These scholars often do not recognize the serious and lasting implications—particularly political—of this confusion. Muddling identity and research expertise undermines academic scholarship. The problems and pressures created by mixing identity politics with scholarship and confusing ethnic studies with religious studies are not unique to Islamic studies—they are also apparent, for example, in Jewish studies. Admittedly, institutional and external forces make it extremely difficult for scholars to establish an academic career that is not implicated in profiteering from Islamic law.
These are the contours of a self-perpetuating cycle: Anti-Muslim groups and individuals manufacture the propaganda product “sharia,” which influences multiple public spaces, including courtrooms and the academy. Various actors politicize adherence to “sharia,” particularly by criminalizing violence by any Muslim as distinctive (“jihadi”). Academics profiteer from engaging both the propaganda product (“sharia”) and the politicized product (“jihadi”). The result is a cycle of propaganda, politics, and profiteering in the US that mystifies Islamic law, marginalizes and criminalizes Muslims, and undermines judicial and academic institutions. A cruel consequence of this cycle is that it dehumanizes all Muslims as “terrorists” (or “jihadis”) whose lives are inconsequential.
Some academics argue that they can “reclaim” problematic terms (such as “sharia”) from propagandizers or from politicians. Others contend that they will only engage the propagandized or politicized versions of Islamic law in order to obtain positions of authority and then convey a non-discriminatory message—not realizing that they have already compromised themselves and the message in the process. To cite feminist scholar and activist bell hooks on women profiteering from their objectification, “it is fantasy that we can recoup the violating image and use it.” There is a role for scholarship in public discourse, but it is not in accepting the desensitizing terminology (or products) of propagandizers or politicians. Neither is it profiteering from ignorance, bigotry, or economic exploitation. Instead, our role is to recognize the subtlest forms of propagandizing and politicizing around us and to insist upon a fundamentally different vocabulary.
 In this piece, Arabic terms are being transliterated according to Jadaliyya`s style guide. While the use and abuse of transliteration and translation schemas are essential to broader political dynamics and to the critical agenda of my scholarship, these important issues will not be addressed in this piece.