Wednesday, March 2nd, 2011

What Is Shari'a Law?

"You keep using that word. I do not think it means what you think it means." —William Goldman, The Princess Bride

Last week, Tennessee State Sen. Bill Ketron (R-Murfreesboro) and state Rep. Judd Matheny (R-Tullahoma) followed Oklahoma's lead in attempting to outlaw sharia. Their idea is to make "knowingly providing material support or resources to a designated sharia organization, or attempting or conspiring to do so" a felony punishable by fifteen years' imprisonment. The Washington Post published the text of the proposed legislation. Therein it emerges that these hapless legislators do not have the faintest clue what it is they're outlawing.

Here's a bit of the proposed law, SB 1028:

(5) Sharia requires all its adherents to actively and passively support the replacement of America’s constitutional republic, including the representative government of this state with a political system based upon sharia.

Not even!

(6) Sharia in particular includes a war doctrine known as jihad, which is an organic, intrinsic and central feature of the laws and traditions of sharia due to a consensus among sharia authorities throughout the ages.

Also no!

Shari'a is not a single doctrine, but a huge and often self-contradictory moral, philosophical and religious tradition, much like that expressed in the authoritative texts of Christianity. "Jihad" means "struggle"—and it is, in fact, a central tenet of Islam—but for moderate Muslims it largely means the personal struggle to live a better, more peaceful, forgiving and unselfish life. "Islam" actually means "submission," and the kind of submission it generally seems to mean is like the Buddhist kind, a peaceful acceptance of things as they are.

In his book The Great Theft: Wrestling Islam from the Extremists, Khaled Abou El Fadl, a professor of Islamic jurisprudence at UCLA, explains about this kind of jihad, writing, "As one struggles to purify and cleanse oneself—as one engages in what is known as the inner jihad (jihad al-nafs), and struggles to know oneself and know God, one is able to achieve higher levels of submission."

But that won't stop Senator Ketron!

(1) “Sharia” means the set of rules, precepts, instructions, or edicts which are said to emanate directly or indirectly from the god of Allah or the prophet Mohammed and which include directly or indirectly the encouragement of any person to support the abrogation, destruction, or violation of the United States or Tennessee Constitutions, or the destruction of the national existence of the United States or the sovereignty of this state, and which includes among other methods to achieve these ends, the likely use of imminent violence. Any rule, precept, instruction, or edict arising directly from the extant rulings of any of the authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafi’i, Hanbali, Ja’afariya, or Salafi, as those terms are used by sharia adherents, is prima facie sharia without any further evidentiary showing.

Had Senator Ketron made the feeblest attempt to figure out what the hell he was talking about first, maybe he could have constructed a coherent argument. As matters stand… well, it makes as much sense to claim that Shari'a encourages the violation of the U.S. (or Tennessee) Constitution as it would to say that the Christian Bible requires every Christian to engage in all the smiting and stoning and mayhem that occurs in the bloodthirstiest bits of the Old Testament.

Actually, the Qur'an is entirely silent on the topic of the Tennessee Constitution, so really, it makes less sense even than that.

Shari'a basically means "the path" (originally "path to the spring"). Different sects subscribe to different opinions as to its constituent parts, but all include the Qur'an, which is the word of God, dictated directly to Muhammad; that is the central text of Shari'a. Then there is the Sunnah, which is kind of like the biography of Muhammad, the record of his deeds and practices, together with the hadith or narrations to do with Muhammad's life and that of his disciples or companions. There are different versions of this, as well. And then there are the fiqh, which are secondary sources of analogy and consensus used to determine individual questions of law or morality; these aren't Shari'a, which is God's law, but rather the attempt to read divine justice through human means. There are a lot of wrinkles to this thing. If you are a Shi'a jurist, for instance, the use of 'aql or logic is the preferred means of arriving at a correct moral or legal decision, and they do not go in for any analogies or consensus.

I'm not even getting into the details of the differences between the many schools of thought in Islam. Suffice it to say that there are a ton of them, and that only the narrowest of narrow puritanical Muslim doctrines (Salafi ones) would pose the slightest threat to the citizens of Tennessee. And moderate Muslims find them as crazy and scary as everyone else does.

The Western concept of Shari'a has long been wrongly slanted. For example, we have heard a lot about how the punishment for theft in Muslim countries is the amputation of a hand. It turns out, though, that far from being automatic, this punishment is uncommon even in conservative interpretations of Islamic law. For instance, if the theft was caused by hunger, necessity or duress, or if the stolen property is of trivial value, amputation is forbidden.

Most Muslim countries aren't even theocracies, relying instead on secular law in order to decide basic questions, and yet the barbaric taint of these fairy tales lingers around the Western concept of Islamic jurisprudence in general.

Moderate Muslims also categorically reject the idea of forcible conversion and the idea of punishing apostates, according to Abou El Fadl. This also flies in the face of the Tennessee proposals.

"There is no compulsion in matters of faith," the Qur'an proclaimed. Moderates consider this verse to be enunciating a general, overriding principle that cannot be contradicted by isolated traditions attributed to the Prophet. Therefore, moderates do not believe that there is any punishment that attaches to apostasy.

The various schools of Islamic jurisprudence competed for many centuries for adherents, but not (until relatively recently) for supremacy. Islam has no Pope, no centralized church that can issue authoritative doctrine; Shari'a was, for a millennium or so, interpreted freely by educated men, by scholars and jurists. The closest analog I can think of in this country is the academy, which finds room for many, many opposing strains of thought on all kinds of subjects; professors try to persuade colleagues, committees, students and the public of their views, in an attempt to gain more funding for their researches, book contracts, visits to see Charlie Rose and so on. But when an academic succeeds in getting a lot of people and institutions to flock to his banner, his intellectual opponents will not therefore be fired from their jobs. It's up to them to make a better argument, and they are free to try.

So it was with Islamic scholarship—and Shari'a. But with the entry of Western colonialism in the eighteenth century, this heterogeneous system began to fall apart. New, Westernized institutions such as secular courts of law brought secular judges to take the place of the ulema (jurists) who had until then been the principal experts on Islamic jurisprudence and on moral and intellectual matters. But the state didn't stop there.

Abou El Fadl explains how the state helped to create the conditions whereby Islam became prey to extremism.

The curricula of the Shari'a schools were carefully redefined by the state, and the training of the students enrolled in these schools was completely overhauled in order to limit the jurists' ability to provide intellectual leadership to society. … After most Muslim countries adopted Western-based legal systems, the state took away the power of defining and enforcing the law from the jurists and gave it to lawyers educated in Western-styled secular law schools.

These changes, he says, created a vacuum into which any wacko could step and declare himself an authority on the Qur'an. There are many parallels with Christianity here, too. As secularism gained hold in the West, as traditional forms of worship fell away, it paradoxically became easier to become the head of a church. In our own time, any talented huckster with salvation to sell can gain a following as a Christian preacher, just like in Elmer Gantry.

There's no unified consensus in Islam regarding either the constitution of Shari'a or its correct interpretation, so "the authoritative schools of Islamic jurisprudence" contradict one another in many instances. Senator Ketron clears this hurdle by outlawing everything in sight. It's quite clear that if this unbelievably dumb law should pass, the Tennessee courts are in potential danger of being clogged with nonstop wrangling over Islamic doctrine. The proposed text of SB 1028 hastens to inform us that it's not Islam that is the problem, even though they are basically making Islam illegal.

This part neither targets, nor incidentally prohibits or inhibits, the peaceful practice of any religion, and in particular, the practice of Islam by its adherents. Rather, this part criminalizes only the knowing provision of material support or resources, as defined in § 39-13-803, to designated sharia organizations, as defined in § 39-13-904, or to known sharia-jihad organizations with the intent of furthering their criminal behavior.

What? If it's okay to be a Muslim then presumably it's okay to follow the precepts of the Qur'an, but no wait, that is the central text of Shari'a! Literally, Shari'a is the law of Islam. So this is like saying, you can visit your church or synagogue, but don't you dare be following any Commandments.

Presumably it is already illegal in Tennessee to be attempting to take down the government, so if any homegrown Tennessee Wahhabists want to try that on, how come they can't just be prosecuted according to existing laws? Why focus on Shari'a? It is impossible to avoid the conclusion that what these legislators are really trying to do is to foment hatred and fear of all Muslims. What this proposed law really speaks to is the corruption of our own moral leaders, both religious and political.

You know how Jesus Christ's main message was helping the poor and sick? Technically, if you really wanted to follow Christ's example you would give away everything you own and live among the poor and try to help them, like a Franciscan monk. But not like a Dominican monk! No, they were all on in 1322 about how it was heresy to believe in the poverty of Christ and his disciples, and they had the then-Pope John XXII write a whole papal bull about it. I mention this because the Muslims have had the exact same eternity of doctrinal wrangling as the Christians have had.

Anyway, back to the poor and sick whom Jesus Christ was so keen to help. Many of today's most prominent Christians are so visibly not following in the example of their church's founder, just like Osama bin Laden is not following in the example of Muhammad. I'm not talking about just the megachurches and the Rick Warrens, the PTL Club or the Left Behind guys, none of whom lives the example of poverty or humility. One look at the Vatican is enough to tell anybody that most of these guys lost the thread long ago. I won't even get into the moral turpitude of so many of our self-avowed Christian politicians and preachers, nor their greed, ignorance or hypocrisy. That's an old story, too.

Well, it's just the same with Islam, except that they have had the recent and terrible misfortune of having had the public face of their faith entirely hijacked by their most ignorant and violent splinter group.

You'd think we Americans of all people could understand this mess they are in. Abou El Fadl says that the puritan Muslims have caused devastating harm to Islam's intellectual heritage; this is so true of our Christian puritans, who are so similarly anti-intellectual and misogynist. Abou El Fadl's description of the political extremists among them certainly has a familiar ring to it:

In light of the recent attention focused on the issue of terrorism, it is important to note that Bin Laden, Ayman al-Zawahiri, and the Taliban, as well as most extremist Muslims, belong to the orientation that I have called puritan. Bin Laden, although raised in a Wahhabi environment, is not, strictly speaking, part of that creed. Wahhabism is distinctively introverted; although focused on power, it primarily asserts power over other Muslims. Militant puritan groups, however, are both introverted and extroverted: they attempt to assert power over and against both Muslims and non-Muslims. As populist movements, they are a reaction to the disempowerment most Muslims have suffered in the modern age at the hands of harshly despotic governments and interventionist foreign powers. In many ways, these militant groups compensate for extreme feelings of disempowerment by extreme and vulgar claims to power.

Of course, it's possible to be sane, wise and Christian, like Rowan Williams or Reinhold Niebuhr, just as it is possible to be sane, wise and Muslim. It benefits everyone to make these distinctions crystal-clear, between the wise and not-wise, even if you don't subscribe to a religious tradition yourself, because everyone is free to seek enlightenment on his own terms, but not to use religious principles falsely, in order to mess with people.

Shari'a doesn't give Islamic terrorists leave to forcibly convert anybody or create any kind of political havoc any more than the Bible gave the Crusaders the authority to go massacring a lot of Saracens, much as these two groups may like to protest to the contrary. The contents of the holy books relied upon to justify such claims make those claims, very, very tenuous. Both the Qur'an and the Bible, for example, forbid killing, and enjoin mercy, forgiveness and peace.

I looked at a number of books in order to begin to get an idea of what Shari'a law was about, but none was one fraction as compelling, passionate or beautiful as that of Dr. Abou El Fadl. I highly recommend this book. He ends by calling for a "counter-jihad against the puritan heresy."

This is not a call for the shedding of blood; it is a call for matching the zeal of puritans through unrelenting intellectual activism. This is a counter-jihad to reclaim the truth about the Islamic faith and win the hearts and minds of Muslims and non-Muslims all around the world.

As for non-Muslims, what can they do? First and foremost, learn and understand, because nothing helps the puritans' cause as much as Western ignorance, prejudice, and hate.

Maria Bustillos is the author of Dorkismo and Act Like A Gentleman, Think Like A Woman.

34 Comments / Post A Comment

IBentMyWookie (#133)

would you want to live under Sharia law, Maria? (not just asking because of the rhyme, I SWEAR)

barnhouse (#1,326)

Who, me? Do you mean do I want to convert to Islam, or do I want to live in a theocracy? No to both, actually. But most Muslims don't seem to want to live in a theocracy, either.

(At least you didn't sing me the West Side Story song, like all my dad's friends used to do, haha.)

You are taking these yahoos about 5,000 words too serious.

kneetoe (#1,881)

This is true. But as someone who staffs a legislative body, I have to wonder if they let these guys write their own stuff, or did staff write this crap (and I don't mean the content, I mean the writing).

CatsInBags (#3,656)

@resipsa I used to dismiss these folks too. But take a look at this video, posted yesterday, of some protesters, including a Councilwoman who is happy advocating sending her son, a marine, to help send "these terrorists" to an "early meeting in paradise." (1:28)

Later, Congressman Ed Royce speaks.

I think if you were one of the mothers or fathers entering this fundraiser, you might take these people a little more seriously as well.

You know, about twenty years ago in Ontario there was a big initiative where "faith-based" arbitration could settle domestic civil disputes like child custody, settlements, etc. It was for all faiths, and Sharia was most definitely a set of guiding principles and not a bunch of tyrannical laws. But then it turned out to be really hard on women, and so the Attorney General of Ontario had to basically say in the early 2000s that any faith-based settlement had to conform to the Charter of Rights and Freedoms. So basically, they just took away any real power Sharia had. So in fact, it has been tried and that effort proved to be exceptionally difficult to keep in line with modern, secular, etched-in-stone human rights laws.
Essentially Canada found out that you can't say "Principle 1: treat everyone the same when it comes to offences. Principle 2: Different faiths can treat people differently". I have no particular opinion about this, I just thought it was an interesting story, and germane.

scratch (#9,949)

So there are factions in Tennessee and Oklahoma that are actively pushing to make Shari'a law part of the TN and OK state codes? No? Nice work, legislators.

druthers (#10,186)

Dial-a-fatwa already

Dave Bry (#422)

This is really good. And such a bummer that it would have to be written.

All the talk of these laws shouldn't have to go any further than the part about:

"Presumably it is already illegal in Tennessee to be attempting to take down the government, so if any homegrown Tennessee Wahhabists want to try that on, how come they can't just be prosecuted according to existing laws?"

KarenUhOh (#19)

Sigh. To wit:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .

Even Old Christine knows that part.

Further sigh. The history of the Fourteenth Amendment's application to state law, thereby incorporating the provisions of the Bill of Rights to states' acts, is long and tedious. But the First Amendment, repeatedly and profoundly, is part of the package. As recently as in the McDonald decision–which struck down the Chicago Gun Ban Law because it intruded on the Second Amendment–the principle of Keep Off the Bill of Rights was reaffirmed.

Even Tony Scalia gets it.

The people of Tennessee pay money for this garbage. The legislature will, one hopes, soon finish up this effervescent statesmanship so they can get back to work cutting taxes and benefits, making abortions capital offenses, and throwing in riders for a legislative pay raises.

Sigh cubed.

barnhouse (#1,326)

Yeef. When you put it that way, I guess at least this Shari'a thing keeps 'em out of trouble.

This was really good, thanks Maria. The hypocrisy involved — church v. state, Christian v. Muslim — is infuriating.

BadUncle (#153)

I thought Christianity required the handling of snakes.

DoctorDisaster (#1,970)

Maria, this is great, great, great; thank you.

Sort of in reply to resipsa above: this isn't just about the "yahoos" (who are incidentally the rightly elected representatives of United States citizens and therefore totally worth taking seriously, ahem). My last big family fight happened when, at the Thanksgiving table, my mom started holding forth about an e-mail forward she'd received telling her how sharia law meant cutting a starving kid's hand off for stealing bread. She genuinely believed that's how "those people, those people who want sharia law" (she couldn't even tell me what country this had supposedly happened in) thought the legal system should work.

Sharia scaremongering is pervasive in our culture right now. Reasonable people aren't pushing back against it as forcefully as they should. Not to invoke Godwin, but this is becoming our generation's Protocols of the Elders of Zion; it's a bigoted shorthand for fear of a poorly understood religious minority, couched in willful deception and myth.

Frankly, I don't care what a story like this uses for a news peg — although I think "elected officials are trying to put bigotry against religious groups into law" is, y'know, worth thinking about. This is just something that needs to be said forcefully and intelligently, over and over again, until people stop invoking this lie.

Basically what I'm saying is that I'll be emailing this to my entire family, and keeping the bookmark handy. You should, too!

Anarcissie (#3,748)

If the bookmark would do any good, they would have read the material already, no? There's always something like this — if it isn't shari'a, it's the Communists, the Jews, the Pope…. What we really need is a way of dissolving the blocks around a lot of people's heads.

joeclark (#651)

Just what your country needs: Another liberal opposed to efforts to crush what she actually admits is the “most ignorant and violent splinter group” of Islam.

Sticking up for Muslims as a whole is not at all like sticking up for gays, something American liberals are the last to acknowledge even while they subconsciously equate the two.

erikonymous (#3,231)

You misread her, Joe. She's actually opposed to efforts to crush what is, by and large, a diverse, moderate, and constitutionally protected group of people, somewhat along the lines of the old "don't let a few bad apples spoil the bunch" axiom. You seem not to have even read the article.
Also, how is "sticking up for Muslims as a whole … not at all like sticking up for gays"? I ask not because I think otherwise, necessarily, but because I can't for the life of me understand what you mean by that.

DoctorDisaster (#1,970)

Sticking up for homosexuals when people say they're all child molesters and perverts trying to force their lifestyle on an unsuspecting nation is not at all like sticking up for Muslims when people say they're all militants and extremists who want to force their system of justice on an unsuspecting nation.

Also: Tennessee is way to full of itself to think that whatever ignorant and violent splinter group they think they are outlawing gives a flying fuck about them.

propertius (#361)

'Islam' actually means "submission," and the kind of submission it generally seems to mean is like the Buddhist kind, a peaceful acceptance of things as they are."
Submission to the will of God, which is alien to Buddhism. You don't spread a religion from Indonesia to West Africa and Spain by peacefully accepting things as they are.
Whether or not militancy is condoned by Islamic law, Islam itself was immediately militant. The comparison with Buddhism is certainly flawed, and even Christianity wasn't militant or expansionist in its earlier years.

erikonymous (#3,231)

Can you please define which "earlier years" Christianity was not militant or expansionist in nature? If you give any date after the reign of emperor Theodosius in the late 4th century, well, I'd just love to hear your argument.

DoctorDisaster (#1,970)

I'm really having trouble figuring out what your point is. That Islam may or may not be militant, but we should treat it as such because early Muslims were involved in wars? (Which: what?) That Buddhism's low number of adherents is a consequence of its pacifism? (Which: lol.) Please clarify.

Mindpowered (#948)

Christianity wasn't militantly expansive in it's early years as it was too busy condemning it's different sects as heretics and having vicious theological riots.

Rollo (#3,202)

To complicate yer picture of Buddhist pacifism/non-aggression, I'd suggest the book "Zen at War," or, more currently, a look at the silly skirmishes over Preah Vihear temple on the Thai/Cambodian border.

Hoover (#2,245)

Hold the phone. UCLA (a public university) has a professor of "'"Islamic Jurisprudence?"'" Don't you mean a PROFESSOR OF SHARIA LAW??? I am freaking out right now.

helplesscase (#9,843)

"Though apostasy has a long history in texts on Islamic law, its treatment has not differed essentially from its conceptualization in the second century of Islam [...] Muslim scholars, on the whole, have remained faithful to the law of apostasy as it exists in pre-modern Islamic legal texts."

"The majority of Muslims jurists argue that once a person becomes a Muslim, it is not permissible to change religion. To flout this is to commit the 'crime' of apostasy, and the person doing so should be put to death."
–Prof Abdullah Saeed, Freedom of Religion, Apostasy, and Islam.

While I don't think most 'sensible' people are denying that Shari'a is a diverse set of beliefs and opinions as opposed to a uniform doctrine (as the author of this article points out what seems like one too many times), there are certain tendencies in mainstream Islamic legal opinion about as anti-Liberal as it gets, and no amount of 'Gee, aren't those yokels in Tennessee ridiculous' can make that disappear.

bemuselouche (#10,201)

why is so long

Scum (#1,847)

Sharia is not just a more beard centric version of secular humanism and there is little point in pretending it is. The post would've been better off concentrating on how ridiculous it is to be legislating against the off chance of a surprise turn towards Sharia in the american legal system.

barnhouse (#1,326)

Nobody is saying such a thing. There are however a lot (a TON) of Muslims (by definition, adherents of Shari'a) who hold views that are pretty much indistinguishable from those of "secular humanism". Not all Muslims: some unknown (but huge) number. That fact is very hard for some Americans to grasp.

al-fannaan (#9,548)

Bravo Maria! great article, and thanks to all who've already countered the few very ignorant comments above – especially you Dr D! If only such a nuanced discourse could enter our relatively brain-dead 'national conversation.'

The Titan Thanos (#10,839)

"This part neither targets, nor incidentally prohibits or inhibits, the peaceful practice of any religion . . ."

You have to laugh when legislators stuff a line as meaningless and cowardly as this into a law.

Does this law incidentally inhibit religious practice? Oh, my, no, it says right there in the law that it doesn't! So we'll never be able to prove that in court! After all, incidental negative effects of a law can only be those admitted in the text of the law! XD

(By the way, my new "put the entire Tennessee budget into my bank account" bill clearly states that it will not incidentally inhibit the functioning of the state of Tennessee.)

How that part translates when read by a judge:

"This law is likely to face Constitutional challenge for inhibiting religious practice, and its authors didn't plan on defending it or even passing it, really."

It's a pathetic admission by "Tennessee State Sen. Bill Ketron (R-Murfreesboro) and state Rep. Judd Matheny (R-Tullahoma)" that they're trying to do something illegal – and yes, that is the right word.

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