To what extent is sharia compatible with Western law? Dr. Rowan Williams, the Archbishop of Canterbury, and Britain’s Supreme Court president Lord Phillips created a stir in 2008 by proposing that British courts might permit the application of Muslim religious law. Numerous American scholars have suggested that sharia might have an application to family law. All the proponents of importing sharia into the West cite the example of Jewish religious law, Halakha, which has coexisted seamlessly with Western law for two thousand years.
In a “Spengler” essay published today at Asia Times Online, titled “Wife-beating, Sharia,and Western law,” I characterize these proposals as “monstrous.” Sharia, I argue, stems from a radically different, and indeed antithetical, concept of the relation of the individual to the state.
More than the Koran’s sanction of wife-beating, the legal grounds on which the Koran sanctions it reveals an impassable gulf between Islamic and Western law. The sovereign grants inalienable rights to every individual in Western society, of which protection from violence is foremost. Every individual stands in direct relation to the state, which wields a monopoly of violence.Islam’s legal system is radically different: the father is a “governor” or “administrator” of the family, that is, a little sovereign within his domestic realm, with the right to employ violence to control his wife and children. That is the self-understanding of modern Islam spelled out by Muslim-American scholars – and it is incompatible with the Western concept of human rights.
The practice of wife-beating, which is found in Muslimcommunities in Western countries, is embedded too profoundly in sharia law to be extracted. Nowhere to my knowledge has a Muslim religious authority of standing repudiated wife-beating as specified in Surah 4:32 of the Koran, for to do so would undermine the foundations of Muslim society.
By extension, the power of the little sovereign of the family can include the killing of wayward wives and female relations. Execution for domestic crimes, often called “honor killing”, is not mentioned in the Koran, but the practice is so widespread in Muslim countries – the United Nations Population Fund estimates an annual toll of 5,000 – that it is recognized in what we might term Islamic common law.
Muslim courts either do not prosecute so-called honor killings, or prosecute them more leniently than other crimes. Article 340 of Jordan’s penal code states, “He who discovers his wife or one of his female relatives committing adultery and kills, wounds, or injures one of them, is exempted from any penalty.” Syria imposes only a two-year prison sentence for such killings. Pakistan forbids them but rarely punishes them.
I cite the view of Muslim-American scholars that the legal basis for corporal punishment of wives stems from Islam’s recognition of the paterfamilias as a little sovereign:
Westernized Muslim scholars strive to justify the practice on Islamic legal grounds. Muslim traditional society is a nested hierarchy in which the clan is an extended family, the tribe an extended clan, and the state an extended tribe. The family patriarch thus enjoys powers in his realm comparable to those of the state in the broader realm. That is the deeper juridical content of the Koranic provision for wife-beating in Surah 4:34:
[Husbands] are the protectors and maintainers of their [wives] because Allah has given the one more [strength] than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in [the husband’s] absence what Allah would have them guard. As to the women on whose part you fear disloyalty and ill-conduct, admonish them first, refuse to share their beds, spank them, but if they return to obedience, seek not against them means of [annoyance]: for Allah is Most High, Great.
An essay by two Michigan State University Law students, Bassam A Abed & Syed E Ahmad, is cited often on Islamic web sites as a credibly modern interpretation of Surah 4:34. Abed and Ahmad begin with the legal principal that sanctions wife-beating, namely that the husband is the “governor” or “administrator” of the family.
The translator’s use of the term “protectors” in the first line of the aforementioned quote is in reference to the Arabic term of qawaamoon (singular:qawaam). Qawaamoon has been defined in various manners by different scholars and translators. Abul ‘Ala Maududi, has defined qawaamoon as “governors” and as “managers”. Qawaam “stands for a person who is responsible for the right conduct and safeguard and maintenance of the affairs of an individual or an institution or an organisation [sic].”
Decisive in the above analysis of Surah 4:32 is the analogy between the husband and the head of a political subdivision or organization. The state in traditional society devolves its authority to the cells from which it is composed, starting with the family, which is a state in miniature, whose patriarch is a “governor” or “administrator”. Traditional society is organized like a nested set of Russian dolls: the clan is the family writ large, the tribe is an extension of the clan, the state is an alliance of the tribes, and the relationship of citizen and sovereign is reproduced at each level.
The comparison with Halakha is entirely specious, I argue:
Jewish law proceeds from God’s Covenant with each member of the Jewish people. The notion of an intermediate sovereign, such as Islam’s “governor” of the family, is inconceivable in Jewish law, for there is only one Sovereign, the King of Kings. The powers of the earthly sovereign derive from God and are limited by God’s laws. The American founding notion of “inalienable rights” stems from the Hebrew concept of covenant: a grant of rights implies a Grantor, and an irreversible grant implies a God who limits his own sovereignty in covenant with mankind.
From the vantage point of Islam, the idea that God might limit his own powers by making an eternal covenant with human beings is unthinkable, for Allah is absolutely transcendent, and unconditionally omnipotent. From a Hebrew, and later Christian standpoint, the powers of the earthly sovereign are limited by God’s law, which irreversibly grants rights to every human being. Islam can make no sense of such self-limitation of the divine sovereign, and thus never has produced a temporal political system subject to constitutional limitations.
As an afterthought: this is precisely what Rosenzweig meant when he characterized Islam as “pagan,” as I wrote in a 2007 essay for First Things.
In the thoroughly organized State, the State and the individual do not stand in the relation of a whole to a part. Instead, the state is the All, from which the power flows through the limbs of the individual. Everyone has his determined place, and, to the extent that he fulfills it, belongs to the All of the State. . . . The individual of antiquity does not lose himself in society in order to find himself, but rather in order to construct it; he himself disappears. The well-known difference between the ancient and all modern concepts of democracy rightly arise from this. It is clear from this why antiquity never developed the concept of representative democracy. Only a body can have organs; a building has only parts.
May 24th, 2010 | 3:50 pm
Mr. Goldman,
While I agree with your overall stance opposing the use of sharia within Western law, I question your assertion that within Western law “[e]very individual stands in direct relation to the state.” I cannot speak for Judaism, but certainly within the Christian tradition, the idea of subsidiarity interposes a layer of “protection” between the state and an individual. This is especially true when children are involved, but examples concerning adults (elderly, disabled, incompetent, etc.) also come readily to mind.
This was argued in the article _In Defense of the Sovereign Family_ published recently by FT: http://www.firstthings.com/article/2008/11/005-in-defense-of-the-sovereign-family-33. While I would certainly oppose the accommodation of sharia in the U.S., I am likewise uncomfortable with a system of law that, surveying my family, ignores me as father and sees my children as the direct responsibility and wards of the state.
Have I misunderstood your argument?
May 24th, 2010 | 4:15 pm
TimC,
I appreciate your point, but I am saying something different. Subsidiarity does not change the direct relationship between an individual and the state in the latter’s capacity as ultimate protector against violence and sole wielder of the sword. To give the sovereign the sole authority to inflict violence is not the same as giving the sovereign the authority to run our lives as long as we behave in a peaceable fashion. You or I as fathers cannot beat our wives without going to jail for it, much less kill our children for fornicating. I am also a 2nd Amendment gun-rights supporter–I want to inflict violence on people who try to inflict violence on me–but in that case I am deputizing myself under emergency circumstances in the absence of an armed officer of the law.
May 24th, 2010 | 7:14 pm
As with TimC, I likewise do not wish to argue for Sharia law in Western society – it would not fit the values of modern Western societies, particularly because the enlightenment (and several developments before and after) has come to define much of how we see the world. However, your handwaving dismissal of connections between Halakah and Sharia is inadequate – the two systems have very strong historical ties, from the founding of Islam through the Genoic period up until the founding of Israel – they also have strong structural, logical, and theological ties – life under a strict Halakhic system would be almost as unpleasant for us as under a strict Sharia system. We haven’t seen much of Halakha at that level – it merely functions as a set of norms in western society (with possible private arbitration a la Beth Din similar to private Sharia courts in the west), and Israel is not organised strongly around Halakha either (being a mostly-secular state). There are Muslim countries that have secular governments (Turkey, Lebanon, some others) that are fairly similar to Israel in that sense (and there’s a lot of variation between Muslim countries in if/how Sharia is a foundation for government).
You’re cherry picking examples in your article to distort the truth – you would do better to offer honest/fair criticism of Islam, and if you do you would probably find a lot of agreement on that criticism across the (American and European) political spectrum.
Best wishes.
May 24th, 2010 | 8:45 pm
Mr. Gunn,
You ignore the most obvious difference between sharia and Halakha, one so obvious I did not think to mention it: never has any Jewish authority suggested that Halakha apply to any but Jews. Muslims believe that Sharia should apply to everyone. No Jewish authority would ever make you “uncomfortable” by subjecting you to a Halakhic regime, e.g., kashrut, Sabbath observance, daily prayer, wrapping philacteries, unless you wished to convert to Judaism. The most common objection to Sharia (as emphasized by my friend Daniel Pipes) is that it is expansionist, as opposed to Jewish law, which applies only to Jews (Jews believe that Gentiles need follow only the so-called Noahide laws). I did not trea that, because I am opposed to introducing Sharia into family courts for adjudication of issues among Muslims resident in the West.
May 25th, 2010 | 10:06 am
One of my wife’s former colleagues, a hospital wardsman, told this story. He arrived home from work one morning to find this late-teenage son engaged in a heated dispute with his (the son’s) mother. which culminated at that moment in the son’s calling his mother a “c…”. The son immediately bolted from the house, closely followed by his father, who caught up with him in the middle of the street, and proceeded to give him a thrashing. Order was restored, and the protagonists returned home.
Shortly afterwards, there was a knock at the door, and the husband opened it to a couple of police officers. “Excuse me sir, but we have a report that you attacked your son in the street.” “He called his mother a c… If he does it again, I’ll thrash him again.” Pause. “Sir, in future, don’t do it in the street.”
There are a lot of variables here. The definition of “thrash” is important. Every incident will be different, and some will require the intervention of the licensees of state violence.
With the advantage of local knowledge, I can applaud the outcome of this incident. But the writing is on the wall for judicious local policing. More and more of these knocks on the door have outcomes that are destructive of the fabric of local society. This is happening because of the insistence of totalitarians by temperament that the state is the sole licensee of all violence.Such a notion is absurd, but there is madness about.
This is not to dispute the essentials of your discussion of the interior logic of sharia, and its contrast with Judeo-Christian legal constructs. However, it seems that in successful democratic systems, the citizens perceive themselves as licensing the state to use violence on their behalf.
Part of that licensing involves it own Russian dolls; local, state and federal government, for instance, as in the US and to some extent in Australia. Such Russian dolls implement subsidiarity, and prevent remote agencies from assuming too much control over us in our homes, neighbourhoods and communities.
From my own limited understanding of Islam and sharia, I am implacably opposed to the suggestions that elements of sharia be introduced into Western legal systems. My opposition stems from two main considerations.
The common law is the system in which the abstractions of Judeo-Christian principles have found application in a centuries-long process of intellectual and legal development and refinement. Such a structure is inherently conservative. That is its strength. How can one seriously propose grafting elements of an alien legal tradition onto it?
My other,and more serious objection is that sharia, as I understand it, is regarded as the social expression of Islamic life. The confession of Islam comes first; sharia gives legal and community expression to that confession. If that is the case, the very notion of partial implementation of sharia is absurd. Those who win such a concession cannot be satisfied with it, except as an indication of the inherent superiority of Islam and sharia, and as an inspiration to greater efforts.
May 25th, 2010 | 4:36 pm
It seems to be a distraction to conflate parents’ disciplining of minor children with wife-beating.
May 25th, 2010 | 9:27 pm
@David
Unfortunately, you’re wrong there too – Sharia does not generally apply to non-muslims, at least in classic muslim civilization where dhimmi are presumed to organise in their own communities with their own religiously-inspired laws. That existence was a lesser one (although by comparison, most western countries offered an even worse and often deadly experience for those of minoritiy faiths) – as we transition into modern times, Europeans extended their (by then mostly secular) laws to all people, while Muslim countries went a number of different directions on that front. In the general case, even where Sharia is the law of the land, the most muslim-specific elements of it are not obligatory on non-muslims. If either of us were to visit Qatar, for example, we could drink alcohol in places with a special license to serve foreigners, a liberty they don’t permit their own people.
I agree with you that we should deny the foothold of private Sharia courts in western countries under the guise of arbitration. I feel the same way about Beth Din (Jewish Halakah courts). My reasoning primarily is that the cultural norms promoted in either system have the practical effect of culturally imprisoning women into subservient roles – with a separate “legal” system that the entire community in practice resorts to, women who want a divorce under the more equitable terms western society provides would be forced to entirely leave their community as a cost for that action. Guest cultures should not be that strong. We don’t need religious or cultural uniformity, but any community in our larger one should expect to still be part of our cultural stream; our progress is their progress too. Parents who teach their children bizarre theories about the origin of the universe can do that, but in the public schools their kids will attend, they’ll hear the broad scientific consensus. That’s the basis of relation – we won’t have Muslim, Christian, or Jewish chastity squads, honour killings, or private and archaic justice.
May 25th, 2010 | 10:27 pm
Mr. Gunn,
I am not sure what you mean by “classical Muslim civilization.” Islamists want to impose sharia on the world, and whenever possible are forcing its application on non-Muslims, notably in the UK. Daniel Pipes has written a good deal about this, for example, here:
http://www.danielpipes.org/7493/why-shariah-must-be-opposed
Until recently there have been no Muslim minority communities in the West. Sharia was the law of the land and wielded a sword (literally!) in a way that rabbinical courts never did, for they never were backed by a sovereign power. The comparison is specious on all counts.
And I consider it insulting in the extreme, and borderline anti-Semitic, to assert that Judaism forces women into subservient roles. Jewish law exempts women from prayers at fixed time for the obvious reason that women normally care for children, and cannot put them down (as a workman puts down his tools) for prayer. It is anti-Catholic, and false, to say that Catholicism puts women into a subservient role because they cannot be priests, by the same token. For further information on equality of men and women in Judaism I refer you to this recent essay by Rabbi Lord Sacks:
http://www.chiefrabbi.org/ReadArtical.aspx?id=833
May 26th, 2010 | 3:44 am
By classical muslim civilisation, I mean most of the major dynasties of Islam, from the original Caliphate up until the mid-late Ottoman Empire.
Islamist movements are generally distinct from that – they’re considered heretical by mainstream normative Islam. On your claim that there have been no Muslim minority communities in the west until recently, this depends on what you mean by recently. Canada and the US first started seeing immigration in the early 20th and 19th centuries, respectively.
You’re correct that the Beth Din have not typically had the strength that Sharia courts had in Arab nations for the reason you mention, at least in modern times.
You can consider it insulting, anti-Semitic, or whatever you like that I assert that. That’s not an argument. If you deny that the attitude is there among any portions of the tribe, you haven’t met many Charedim – in Yerushalaim there have been instances where Vice Squads have been hunted by police in the “bad neighbourhoods” (where bad is strangely inverted in that it’s the Charedim that are almost always the troublemakers). If you deny that there’s some support in Torah for it, you’re ignoring a range of scripture. (Leviticus is a good place to start). Fortunately, religious women have many more opportunities in modern times than they did in the past, at least in Modern Orthodoxy and the more liberal movements.
One of the biggest lessons we have to learn from history is that separate is not equal. Blacks are the canonical example of this in the US and where we’ve learned that lesson the strongest. The caste system of India is another – not surprisingly, conservative Hindus fought to prevent it from being dismantled and argued that the higher castes were not better, they just had a different role to play in society. In modern times we know that there is in fact very little for which a woman is ill-suited, just as a shudra is quite capable of intellectual work. Saying that they have a special role in society that they should just accept is hopelessly reactionary, wastes their potential, and limits them in their search for happiness.
I actually am anti-Catholic, but not specifically – I believe that religious influence is in modern times generally something we can do and should without, and that we should learn as much as we can about the philosophies and cultures that have been tied to religion so we can build better ones for the future.
At least we have the common ground of opposing Sharia, although that’s not a particularly controversial position to take in Western society – I’m rather liberal and spend most of my time in a university environment – I’ve never met anyone apart from the few religious muslims here that would be friendly towards the spread of Sharia in the west. It seems to be a popular thing for conservatives to talk about in the blogosphere (generally without much of a sense of history and with very sloppy arguments, sadly) – I guess this is because it’s a very safe thing for them to get people worried about? It’s also mostly a waste of time, at least in the US – liberals oppose sharia because we have a lot to lose should it gain ground (more than conservatives, generally) while conservatives tend to see it as evil. The attention to the topic strikes me as curious.
May 26th, 2010 | 4:08 pm
The point I got from this blog is Mr. Goldman is politely stating a minor difference in Sharia Law verses Western Law (society). There are harsher comparisons between the two prosecutions. Turkey, Lebanon, Iran, Arabia, and other Central Eastern cultures do practice Sharia law. To interject Radical Islamic views is to stray from the original article posted.
Sharia law is old in nature. Male centric and does practice the beheading of women accused of a crime, not beheaded after proof, only after and accusation is made. This law is contradictory to Western Laws were we are presumed innocent until proven guilty in a court.
To stand by the point of view that we are all equals under these two laws is not true. We are assumed innocent/guilty but Sharia only needs assumption where Western Law requires evidence.
More dramatic is the Sharia laws of hudud: Which allows for the perception of a law that is broken and not the evidence to prove the law was broken in order to amputate limbs, stone a person, or execute by sword.
Before you compare a Western spoiled liberal whiny belief system to Eastern philosophy, step outside yourself and look at the facts.
May 26th, 2010 | 4:26 pm
Mr. Gunn – To openly claim you are anti-catholic and argue off topic supportive statements that have nothing to do with Islam is the reason your elitist attitude losses credibility. Supportive statements of an argument is not about your knowledge of other cultures, their history and practices. Supportive statements in an argument that narrows the focus and contain supportive facts that make your theory true.
May 26th, 2010 | 4:57 pm
@Sarinana: I don’t claim that western secular jurisprudence is similar to Sharia – quite the opposite in fact (I am not arguing for Sharia – I think it would be an enormous step backwards for western society). I’m just arguing that the original article has bad arguments (and continuing discussion based on points raised in the ensuing discussion) – I mentioned other faiths to provide context, and he accused me of anti-semitism and anti-catholicism, so I discussed that. Now you accuse me of elitism – I likewise don’t care – I think any criticism which we provide of other cultures should be as informed and accurate as possible – discussion of the details I raised are relevant to the discussion. I also did not interject theories from Islamist movements, I was simply noting that the original author takes great liberties with the truth, and conflating those movements with mainstream Islam is either ignorant or dishonest.
In the end, despite our different views, the original author and I both are arguing against Sharia – I want to help raise the level of discussion by cutting away bad arguments so what will remain will be high quality and to-the-point.
On the points in your first response, mere accusation of a crime does not result in punishment under Sharia – fiqh demands evidence (which is a complex topic in its own right – if you want to read about the topic, Kamali’s “Principles of Islamic Jurisprudence” and Hallaq’s “History of Islamic Legal Theories” might be generally interesting).
Again, there are very good reasons to oppose Sharia, but we should make solid, well-informed, and reasoned arguments to do so. When one gets the facts wrong, one hurts one’s cause.
May 28th, 2010 | 10:42 pm
It is worth considering that Muslim women have organised to oppose the introduction of Sharia law in Western countries where they have immigrated and have that personal freedon protected under law.
Canada who decided aginst Sharia Law is a good recent example of this.
June 1st, 2010 | 10:30 am
Lee, in Canada only Ontario and Quebec have formally decided not to allow religious tribunals to adjudicate family law cases. The question has not arisen in the rest of the country.
Below is a letter I sent to the then attorney general of Ontario just after the government announced its decision in September 2005.
Dear Sir:
Religious Tribunals
In an earlier letter I argued that the civil formalities of marriage, however legally defined, belong properly to the state. This principle applies equally to the adjudication of family law cases. I therefore welcome the Government’s decision to remove such cases from the Arbitration Act, although I found it strange that the Premier chose to make such an important policy announcement in a telephone interview with only one news agency on a Sunday afternoon when the House was not sitting.
The present controversy has shown, as did the earlier debate on same-sex marriage, that the proper boundary between religious norms and civil law is poorly understood in Canada, even by those who should know better. Some commentators have muddied the waters still further by confusing arbitration, which is legally binding, with mediation, which is not.
In mediaeval Europe, the clergy claimed jurisdiction over all aspects of marriage. This theocratic system, which was breached first by the Protestant Reformation and later by the secularization of the state, has never existed in Canada. Leaving aside the claims of the aboriginal peoples, whose ancestors were here before the establishment of European political and legal systems, neither freedom of religion nor multiculturalism gives any group in this country a constitutional right to operate its own parallel system of family law. Anyone who chooses to marry in Canada, whether in a civil or a religious ceremony, is implicitly accepting the jurisdiction of the state in matters of family law. Uncoupling civil from religious marriage, as I have proposed, would help to make this principle clear.
Contrary to some misinformed reports, the canonical marriage tribunals of the Roman Catholic Church are concerned only with the sacramental aspects of marriage in which the state clearly has no competence. The civil effects of marriage and divorce are properly left to the state. A divorced Catholic who wishes to remarry and is unsuccessful in getting a canonical annulment is still legally free to remarry civilly. A Catholic lawyer friend informs me that he knows of no Catholic tribunal in the province that is operating under the Arbitration Act. Any attempt to equate the Catholic marriage tribunals with the proposed Islamic tribunals is therefore a red herring.
Quebec, and now Ontario, have decided logically, and in my view rightly, that in a modern democratic state the adjudication of family law cases belongs properly and exclusively to the civil courts. The social and economic rights of children in particular are too important to be left to the mercy of private tribunals sitting behind closed doors and operating under rules on which no political consensus exists. I am disappointed that Marion Boyd and the editorial boards of three metropolitan newspapers apparently do not understand this elementary principle.
Yours truly,
R. H. Addington
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