Tuesday, November 9, 2010

[wvns] What Is Shariah and Why Does It Matter?

What Is Shariah and Why Does It Matter?
Sherman A. Jackson
Professor of Arabic and Islamic Studies, University of Michigan
September 11, 2010

You're a black male driving along the back roads of Anywhere, USA. Your car breaks down just as your cell-phone battery dies, so you'll have to get out and knock on someone's door for help. You come upon a patch of houses, some proudly boasting American flags, the others flagless. Which of these houses shall you approach? While it may come as a shock to some, most blacks to whom I have posed this scenario opt for a flagless house. This has nothing to do with any lack of patriotism. Outside these circumstances, they proudly stand for, salute and wave the flag. In fact, that Ralph Lauren gear with the chic little American flags as emblems -- you can't keep 'em on the shelves in some black communities! History, however, and the political symbolism that the deeds and rhetoric of some have attached to Old Glory have simply transformed it under certain circumstances from our national flag into a red flag.

The same applies to shariah. Most Americans have no idea what it really means or stands for. But the deeds and rhetoric of some have produced a similar effect: shariah has come to constitute a red flag, even without the misrepresentations of so-called Islamophobes. Many Muslims dislike this logic and are actually as offended by it as some Americans will be by the insinuation that our flag can double as a symbol of racism. Both groups would do well, however, to note that people are not going to ignore their actual experiences just to make others comfortable in their ideologically constructed world of ideals.

And yet only the naïveté of the most crass and cynical utopianism would deny the validity of an ideal based solely on the reality of an experience. We don't conclude that the ideal of eradicating hunger is bogus simply because so many hungry people continue to exist. Rather, if those who have the resources and opportunity to eradicate hunger consistently fail to do so, we conclude that they are either not fully committed to this ideal or that they are woefully blind and inept in their attempts to realize it.

At the most basic level, shariah is the Muslim universe of ideals. It is the result of their collective effort to understand and apply the Quran and supplementary teachings of the Prophet Muhammad (called Sunna) in order to earn God's pleasure and secure human welfare in this life and attain human salvation in the life to come. While the Quran and Sunna are transcendent and unchangeable, shariah itself is the negotiated result of competing interpretations. In fact, most Muslims tend to speak not of shariah but of fiqh, which literally means "understanding" and underscores the distinction between God's prescriptions on the one hand and the human attempt to understand these on the other.

This in turn explains two other unavoidable characteristics of shariah: diversity of opinion, and inevitable change. In Sunni Islam (and to do Shiism justice would require a separate treatment) there are four "schools" of fiqh, all equally orthodox, all equally authoritative. This is because Sunnism never established a single ecclesiastical authority or "church" to decide doctrine. Instead, the only doctrines deemed binding on the community as a whole were those on which the community's scholars reached a unanimous -- not majority! -- consensus. In the absence of this, competing parties would simply have to agree to disagree, as no school or individual -- not even the Caliph or temporal ruler -- could claim the infallible right to impose a doctrine as unassailable truth.

As for change, the rules of shariah are divided into two categories: religious observances (prayer, fasting, etc.) and civil-criminal matters (marriage, sales, adultery, jihad, etc.). While religious observances are relatively static and fixed, the rules on civil-criminal matters are subject to change in accordance with circumstances. Here, in fact, we come to a fourth important feature of shariah: in addition to interpreting scripture in order to apply it to reality, shariah also includes the attempt to process reality to determine how scripture, Prophetic teaching and the cumulative tradition of deliberation would have one respond to it.

In this capacity, shariah may end up sanctioning, or even including, all kinds of ideas and institutions that were not dictated by scripture. For example, there were no domes, schools of fiqh or minarets in the Prophet's Arabia. Likewise, the fact that there was no democracy or "human rights" does not automatically render these "un-Islamic." In short, shariah includes the attempt to proffer God-conscious responses to an ever-changing reality. And in this capacity, many of its rules are subject to change with changes in the circumstances to which it seeks to respond.

Having said all of this, shariah is not just "rules." While the common translation, "Islamic law," is not entirely wrong, it is under-inclusive, for shariah includes scores of moral and ethical principles, from honoring one's parents to helping the poor to being good to one's neighbor. Moreover, most of the "rules" of shariah carry no prescribed earthly sanctions at all. The prescriptions covering ablution or eating pork or how to dress are just as much a part of shariah as are those governing sale, divorce or jihad. Yet there are no earthly punishments prescribed for those who violate these dictates.

Like the bulk of shariah's "rules," reward and punishment in these areas are the preserve of God in the Afterlife.

Unfortunately, many Americans have been led to believe that shariah equals not only rules but criminal punishments -- floggings, for example. Three quick points: First, criminal sanctions constitute a tiny sliver of shariah. Of the 1,081 pages of the two-volume Arabic text from which I studied shariah, only 60 pages were devoted directly to criminal sanctions! (Jihad, incidentally, took up only 19.) Second, the criminal sanctions of shariah did not emerge as the property or instrument of the Muslim state but functioned in fact to impose limits on the use of state power. Third, the punishments for criminal behavior cannot be separated from the evidentiary rules -- equally shariah! -- that provide for their application (e.g., multiple eye-witnesses).

In practical terms, in other words, short of confession, rules on such things as adultery or fornication function almost entirely as moral exhortations. God-consciousness spawned by shariah, not fear of being punished, sustains these ideals. Of course, many Americans will object that such issues should not be subject to any rules or religious exhortations at all. But given some of our increasingly worrisome realities (out-of-wedlock births, etc.), perhaps this would make for fruitful conversation.

Why does shariah matter? It matters for Muslims because it represents the ideals that define a properly constituted Islamic existence. Islam without shariah would be Islam without Islamic ideals. While most non-Muslim Americans may think of Islam without shariah as simply Islam without rules or criminal sanctions, for Muslims Islam without shariah would also mean Islam without prescriptions on ablution, prayer, alms, sales, diet, filial piety, civics, etc.

While the discourse in America around shariah will probably continue to succumb to the self-serving tendency to "compare my ideals with your realities," shariah itself will continue to inspire Muslims, especially in their personal lives, to strive, with hope and humility, to narrow the gap between the unacceptable "is" and the ever-elusive "ought."


Law professor: Ban on Sharia law 'a mess' http://news.blogs.cnn.com/2010/11/03/law-professor-ban-on-sharia-law-a-mess/

Oklahoma's new ban on Islamic law poses potential legal hurdles.

Oklahoma voters on Tuesday approved a measure that bans the application of Islamic law and orders judges in the state to rely only on federal law when deciding cases. State Rep. Rex Duncan, a Republican, was the primary author of the measure, which amends that state constitution.

For months, legal experts had lambasted the initiative as biased toward a religion and potentially harmful to local businesses that engage in commerce with international companies. It also presents potential constitutional law problems, experts say. Is Oklahoma's state constitution now in direct conflict with the U.S. Constitution's First Amendment, which states, "Congress shall make no law respecting an establishment of religion ... "?

There has never been a previous case in the state in which Sharia law was applied, said Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court.

Tepker called the passage of the measure "a mess" with implications unknown until a case that challenges it arises."

Many of us who understand the law are scratching our heads this morning, laughing so we don't cry," he said. "I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn't that a precept of another culture and another nation? The result of this is that judges aren't going to know when and how they can look at sources of American law that were international law in origin.

"What is Sharia law, and how is it defined in the ban?

Businesses that engage with international companies may also find the ban is a stumbling block, Tepker said. The ban also requires all state business to be conducted in English.

Duncan has said he knew of no precedent in the state's history in which a judge applied Sharia law. But he backed the measure, he told reporters, as a "pre-emptive strike."


America's Anti-Islam Hysteria
by Reza Aslan

Reza Aslan is author of the international bestseller No god but God and Beyond Fundamentalism. His new book Tablet and Pen: Literary Landscapes from the Modern Middle East comes out in Nov.

Sharron Angle is just the latest politician to stir up anti-Muslim feelings. Reza Aslan on the wacky movement to ban Sharia law in the U.S. We all knew Nevada's Republican Senatorial candidate Sharron Angle was a bit loony. After all, this is the woman who said that rape and incest victims who become pregnant should be forced to have their babies so as to turn their "lemon situation into lemonade."But when Angle suggested last week that certain American cities like Dearborn, Michigan and Frankford, Texas, have been taken over by a "militant terrorist situation" wherein Muslims have instituted Sharia law upon its residents, many people were left scratching their heads at what she could possibly have meant. It's not just that Dearborn is—last anyone checked—still under the purview of the United States Constitution, or that there is no place in America called Frankford, Texas (I'm not kidding, look it up). It's the rather bizarre notion that there may be a city in this country where the Constitution does not apply.

"It seems to me there is something fundamentally wrong with allowing a foreign system of law to even take hold in any municipality or government situation in our United States," Angle said about the real Dearborn and the imaginary Frankford.

Angle is right. There is something fundamentally wrong with this idea—it's not true. There is no city or municipality in this country where Islamic law has taken hold. And yet, Angle is not the only one sounding the alarm over an imminent Muslim takeover of America. Indeed, now that the screeching over the building of the Islamic Community Center in Lower Manhattan seems to have died down, a new battle cry is arising from the radical anti-Muslim fringe: American Muslims, they say, are trying to replace the Constitution with Sharia!

Now I admit that we Muslims are a pretty powerful bunch. But in all the secret Muslim gatherings I have attended to discuss our plans for destroying democracy and taking over the White House (we meet every Friday night directly atop Ground Zero), we have come to the conclusion that we will need to raise our numbers from the 1% of the US population we currently represent, to at least 2% before we can begin stoning people at random. Angle is right. There is something fundamentally wrong with this idea—it's not true.

Still, it's good to know there are God-fearing Americans like Oklahoma State Senator Rex Duncan who are taking steps to prevent such an outcome. Citing a need to protect the American constitution from the "looming threat" of Muslims, Duncan has introduced an amendment outlawing Sharia from Oklahoma's court system. Duncan admits that his measure, which Oklahomans will vote on this fall, may be a bit premature. After all, there are only about 30,000 Muslims in the entire state. But he's not taking any chances.

"I see [Sharia] in the future somewhere in America," Duncan said. "It's not an imminent threat in Oklahoma yet, but it's a storm on the horizon in other states" (By other states I believe Duncan is referring to Frankford, Texas).

The loudest and most hysterical voice among the Muslims-are-taking-over-America chorus belongs to the pseudo-scholar and professional noise-maker Robert Spencer who, along with Pamela Geller—most famous for her theory that Obama is Malcom X's bastard Muslim love-child—formed the organization behind the anti-mosque protests that have erupted all over the country. Spencer is convinced that Sharia has begun to take over the American legal system. His proof? The new Supreme Court justice Elena Kagan.

In an interview with the conservative website The Daily Caller, Spencer claimed that Kagan "would knowingly and wittingly abet the advance of Sharia," in her tenure as Supreme Court justice because, as a liberal, she shares with Muslims "a hatred of the West and Western civilization." Now, Spencer also believes that the decision by Campbell Soup to create a line of halal soups to accompany its kosher line is another sign of the Muslim takeover of America ("why is Campbell's Soup rushing to do [Muslims'] bidding?" Spencer wrote in his blog. "M-M-Muslim Brotherhood Good?"), so he is obviously a nut who should not be taken seriously on any subject.

But then how to explain Newt Gingrich? Fresh off his most recent media blitz, during which he compared Islam to Nazism and associated American Muslims with al-Qaeda terrorists, Gingrich has enthusiastically taken up the anti-Muslim cause. He recently released a film titled "America at Risk," which details the Muslim threat to America ("This is the end of times," the film warns. "This is the final struggle"). Now he is calling for a federal law banning Sharia in the U.S.. "We should have a federal law that says Sharia law cannot be recognized by any court in the United States," Gingrich told an audience at the Values Voter Summit in D.C. last month. He wants the law to stipulate that, "no judge will remain in office [who] tried to use Sharia law."

Considering that no judge in the United States has cited Sharia in any legal case, and that no Muslim organization has called for its imposition in America, this is a bit like passing a federal law banning Americans from riding unicorns. Yet it does bear mentioning that there are already a number of religious courts all over this country through which a particular religious community can adjudicate matters of family law for themselves. They are called Halacha (Jewish law) courts and they allow observant Jews to conduct business and personal transactions in accordance with the principles of the Torah as long as Halacha does not violate the civil law.

Why shouldn't Muslims in the US have the same opportunity as America's Jews when it comes to issues of marriage, divorce, and inheritance.

As Marc Stern, associate counsel for the American Jewish Committee, put it in an interview with NPR: "Just as the Catholic Church… didn't take over [Constitutional] law when large numbers of Catholics came to the United States, and Jewish law doesn't govern Jewish citizens [of the U.S.], Shariah law is not going to govern, except voluntarily, the rights and responsibilities of Muslim citizens in the United States."

But these are just facts and, as such, have no bearing on the nonsense pouring out of the mouths of the Sharron Angles and Robert Spencers of the world. So while they continue with this newest round of their fear Islam campaign, I, for one, am going to move to Frankford Texas where I can finally marry four wives.

Reza Aslan is author of the international bestseller No god but God and Beyond Fundamentalism. His new book Tablet and Pen: Literary Landscapes from the Modern Middle East comes out in Nov. Follow him on Twitter and Facebook.

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