Why Sharia Is Incompatible With Western Law

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.