Ban Sharia Law? Define It First

Posted 3:33 PM by JP in Labels: , , , , , , , , , ,
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Amid the New York City Islamic center controversy, Newt Gingrich recently called for a ban on the enforcement of Sharia law in the United States.
  • Is this pandering to a fearful conservative Christian base? Yes.
  • Will it ever-so-slightly increase hostility and discrimination against all ethnic groups associated with Islam in the US? Yes.
  • Is it likely Gingrich is getting on the pulpit to position himself as a presidental candidate? Yes.
  • Does that make calling for "banning Sharia law" in the United States not worthy of analysis or discussion? No.
While most governments are based on constitutions, there are several countries (even Britain) that have separate courts for state legal law and sharia law.
Examples can be seen in Nigeria and Kenya, which have sharia courts that rule on family law for Muslims. A variation exists in Tanzania, where civil courts apply sharia or secular law according to the religious backgrounds of the defendants. Several countries, including Lebanon and Indonesia, have mixed jurisdiction courts based on residual colonial legal systems and supplemented with sharia. Ahmad Nizar Hamzeh of the American University of Beirut says only Qatar has an official dual legal system where Adlia courts, or civil courts, are independent of the sharia system and legislate secular laws. 
Western countries are also exploring the idea of allowing Muslims to apply Islamic law in familial and financial disputes. In late 2008, Britain officially allowed sharia tribunals (NYT) governing marriage, divorce, and inheritance to make legally binding decisions if both parties agreed. The new system is in line with separate mediation allowed for Anglican and Jewish communities in England. Criminal law remains under the gavel of the existing legal system. "There is no reason why principles of sharia law, or any other religious code, should not be the basis for mediation," Britain's top judge, Lord Nicholas Phillips, said in a July 2008 speech (PDF). Supporters of this initiative, such as the archbishop of Canterbury, Rowan Williams, argue that it would help maintain social cohesion (BBC) in European societies increasingly divided by religion. However, some research suggests the process to be discriminatory toward women (BBC). Other analysts suggest the system has led to grey areas. Britain's Muslims come from all over the world, Ishtiaq Ahmed, a spokesperson for the Council for Mosques in England, told the BBC, noting that this makes it hard to discern at times "where the rulings of the sharia finish and long-held cultural practices start."

Many critics have condemned the Islamophobia in America as a redux of racial and Communist fears of the previous century, and pointed out the dubious ties of the leading anti-Islamic blogs driving the current controversies about Islam in the United States.

At the same time, while they rely on heavily biased, paranoid fearful language, top anti-Islamic websites such as Jihad Watch and Atlas Shrugs base much of their rhetoric on daily news posts noting situations like an Australian YMCA banning bare skin at swimming pools in the presence of Muslims, Sharia-compliant halal meals on British Airways, and Ukrainian cheerleaders banned from performing in front of the Turkish President Erdogan during a baskeball tournament.

Sure, major economic and social norm shifts due to Muslim presence are newsworthy and significant. But a constant stream of news links solely focused on Muslims "demanding" subtle changes from Western countries paints a slanted picture of a one-way "Islamic dominance of the Western civilization."

Nevermind the Western cultural influence in Islamic countries.
I shouldn't have been surprised at the notion of Muslim metalheads or punkers. Muslim history is full of characters and movements that seemed far out of the mainstream in their day, but that nevertheless helped bring about farreaching changes in their societies. As I nursed my drink, I contemplated the various musical, cultural, and political permutations that could be produced by combining Islam and hard rock. I began to wonder: What could Muslim metal artists and their fans teach us about the state of Islam today?
And so began a five-year journey across the Muslim world, from Morocco to Pakistan, with a dozen countries in between, in search of the artists, fans, and activists who make up the alternative music scenes of the Muslim world. My journey was long, and sometimes dangerous. But the more I traveled and the more musicians I met, the more I understood how much insight into Islam today could be gained by getting to know the artists who were working on what might seem to be the edges of their societies. Their imagination and openness to the world, and the courage of their convictions, remind us that Muslim and Western cultures are more heterogeneous, complex, and ultimately alike than the peddlers of the clash of civilizations, the war on terror, and unending jihad would have us believe.

Furthermore, there is no one interpretation of "sharia law."
Also meaning "path" in Arabic, sharia guides all aspects of Muslim life including daily routines, familial and religious obligations, and financial dealings. It is derived primarily from the Quran and the Sunna--the sayings, practices, and teachings of the Prophet Mohammed. Precedents and analogy applied by Muslim scholars are used to address new issues. The consensus of the Muslim community also plays a role in defining this theological manual.
Sharia developed several hundred years after the Prophet Mohammed's death in 632 CE as the Islamic empire expanded to the edge of North Africa in the West and to China in the East. Since the Prophet Mohammed was considered the most pious of all believers, his life and ways became a model for all other Muslims and were collected by scholars into what is known as the hadith. As each locality tried to reconcile local customs and Islam, hadith literature grew and developed into distinct schools of Islamic thought: the Sunni schools, Hanbali, Maliki, Shafi'i, Hanafi; and the Shiite school, Ja'fari. Named after the scholars that inspired them, they differ in the weight each applies to the sources from which sharia is derived, the Quran, hadith, Islamic scholars, and consensus of the community. The Hanbali school, known for following the most Orthodox form of Islam, is embraced in Saudi Arabia and by the Taliban. The Hanafi school, known for being the most liberal and the most focused on reason and analogy, is dominant among Sunnis in Central Asia, Egypt, Pakistan, India, China, Turkey, the Balkans, and the Caucasus. The Maliki school is dominant in North Africa and the Shafi'i school in Indonesia, Malaysia, Brunei Darussalam, and Yemen. Shia Muslims follow the Ja'fari school, most notably in Shia-dominant Iran. The distinctions have more impact on the legal systems in each country, however, than on individual Muslims, as many do not adhere to one school in their personal lives.

These days, there seem to be two major views on how to interpret sharia.
...Muslims agree that sharia is God's law, but there is little consensus on the particulars. To some, sharia is a set of rules that are codified and unchanging. To others, it's a collection of religious principles that shift over time.
Imam Yahya Hendi, Muslim chaplain at Georgetown University and spokesman of the Islamic Jurisprudence Council of North America, describes Muslims as being divided into two camps: "Those who see sharia mandating that we live as Muslims did 1,300 years ago, and those who say sharia doesn't have a specific format as to how you live your life, that Islam gives you paradigms."
This question of how to define sharia has become a more urgent issue for Muslims around the world in recent decades as, according to some estimates, one-third of them live outside Muslim-majority countries for the first time in history. Conferences are held where scholars debate what it means for a government or a person to be "sharia-compliant."
....
Others say "sharia" refers to the specific words of the Koran (Muslims' holy book of God's revelation passed orally to the prophet Muhammad) as well as all the hadith, which are the actions and statements attributed to Muhammad that have been passed down, analyzed, interpreted (and sometimes tossed out) over the for centuries.
Many of the harshest, most controversial writings are in the hadith, such as those giving lower status to non-Muslims and mandates to stone adulterers (including a much-publicized stoning this month in Afghanistan, meted out by the Taliban). Muslims have debated their accuracy for centuries.
Another key source is fiqh, the collection of opinions scholars have written to determine how the will of God can be carried out in daily life. Some people include all fiqh as well when they refer to "sharia" or "Islamic law." 

So if we're going to talk about sharia law, we need to get specific with what we're dealing with...which leads us to debate at the heart of all of this:
  • What qualifies as "sharia"? 
  • How much of it is based on the authoritative Muslim texts (compared to indigenous customs and religious leader interpretations)?
  • How much of it is covered by the 1st Amendment?
  • Is not accommodating someone's personal interpretation of sharia a violation of the 1st Amendment? 
But Ali Khan, a law professor at Washburn University, sees a scenario where non-Muslims could be governed by Islamic law.
"Right now Islam is expanding in the United States," he says. "Now suppose that Muslims become a majority in a particular state; I think then the state laws would reflect Islamic law."
Khan notes that the heavily Muslim city of Dearborn, Mich., passed an ordinance that allows the call to prayer to be broadcast over loudspeakers. Khan believes that the rapid growth of American Islam means that more towns will enact laws friendly to the religion — such as banning alcohol or gambling. Of course, Christians have already done that in some cases by creating dry counties or passing blue laws that prohibit shopping on Sunday.
But religious accommodation can go only so far, says Clark Lombardi, a Shariah law expert at the University of Washington. Even if an entire state converted to a "Taliban-esque version of Islam," he says, the courts would not allow it to force women to wear veils, for example — that would violate their First Amendment rights.
"So we're not going to see hand chopping off, we're not going to see retaliatory violence, we're not going to see underage marriages, we're not going to see polygamous marriage," Lombardi says. "The U.S. court wouldn't do it. It's contrary to public policy, and they would refuse to apply that particular foreign law."

Of course, there are many laws on the books here based in Jewish, Christian and Mormon holy texts and traditions, and the Church and State battle has long been a part of American discourse.

But at the end of the day, the Constitution is the law of the land - no matter what religion the majority of Americans believe. Explictly banning anything related to "Islamic sharia dominance" would just be redundant.

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