Rowan Williams, the archbishop of Canterbury, recently created quite a stir when he advocated the limited use of Islamic law, known as Sharia, by English Muslims. In some quarters, he was embraced as a visionary. In others, he was excoriated as a weak-kneed dhimmi ¯or supplicant¯who was surrendering British law, society, and culture to the primitive and violent ways of Sharia.
What exactly did Dr. Williams say?
In truth, very little, except that Muslims in Britain ought to be able to turn to their own Islamic laws to decide matters such as marriage and divorce, inheritance, and commercial disputes. This ignited an international debate.
But why should it? Defenders pointed out that Sharia has already gone mainstream in Londons financial district, where Western banks employ Sharia advisory boards to tell them how to structure their financial products to appease the Sharia faithful. Libertarians will tell you there is nothing unusual or untoward about private parties agreeing to arbitrate their own disputes using their own rules and regulations. And, once an arbitration decision is rendered, it is quite the norm that the secular courts of the state enforce it.
Private parties can even agree to force the civil courts to decide their commercial disputes using the law of any jurisdiction they choose¯a doctrine known as choice of law. In more than one case, U.S. courts have interpreted Sharia to render a decision because the parties have insisted on applying Saudi law, for example, which is based almost entirely on Sharia. What makes this judicial excursion into the world of Sharia prickly, at least for lawyers and the courts, is that Sharia is by its own terms the divine law of Allah. Even someone not well versed in constitutional law viscerally understands that a secular U.S. court engaging in a legal exercise to divine the divine law of Allah is a problem.
But private arbitration agreements are a different matter. There, the Sharia authorities apply the divine law because the parties freely agreed to submit their disputes to Sharia authorities. The secular courts simply put their imprimatur on the decision by allowing the power of the state to enforce those decisions. Thus, if a Muslim sues another Muslim and a Sharia court rules that, according to Sharia, Party 1 must pay Party 2 $100, Party 1 can take the arbitration decision to a secular court for judgment. Party 1 may then take that judgment to the sheriff and extract the $100 by force, as he would for a wholly secular court judgment.
This is already taking place in the United States. So whats the fuss all about?
The fuss is about the elephant in the room, or, better yet, the wolf in sheeps clothing that some Americans fail to acknowledge. Put simply, not all foreign or religious laws are equal. Most foreign laws, be they sourced in secular legal codes or religious ones, are not predicated on a doctrine of world domination and holy war. But what if a legal system is founded upon the goal of conquering the world through holy war when persuasion and subjugation are not immediately successful?
In other words, should a society lend legitimacy to a legal system whose raison d’être is the destruction of that society? Moreover, how should a society treat a legal system that obligates its faithful to use violent jihad to accomplish its goals?
The chorus of objectors at this point is predictable: Who says that Sharias goal is world hegemony and its method violent jihad? The answer of course rests with the Sharia authorities who have addressed this question over the past 1,200 years. Granted, there have been some lone voices (notably certain Sufi scholars) that have sought to temper this rather violent doctrine, but one need only pick up any treatise of the Sharia authorities, including the great Andalusian philosopher and jurist Ibn Rushd, known to the Western world as Averroës and lauded as the model of moderation during Islams Golden Era, to learn that the Muslim nation is obligated to engage in kinetic warfare against polytheists and other manifestations of apostasy. For the record, Sharia authorities consider a secular constitution that does not abide by Islamic law as a form of polytheism.
And, sadly, one need not rely on ancient medieval Sharia authorities to know that Osama bin Laden bases his war against the infidel on more than dusty fatwas or even the radical political writings of the twentieth-century Islamists such as Sayyid Abul Ala Maududi or Sayyid Qutb.
For example, Dow Jones & Company, the owner of the Wall Street Journal , employs Mufti Taqi Usmani, a world-renowned Sharia authority. Sitting as one of the most esteemed members of the Dow Jones Sharia Advisory Board, Usmani informs Dow Jones which companies are Sharia-compliant for admission into the Dow Jones Islamic Index. This index is then licensed by mutual funds to determine which companies are permissible investments for their Sharia-compliant portfolios.
It should surprise no one that Usmani has ruled in line with Sharias 1,200 years of jurisprudence that violent jihad against the infidels in the West is an ongoing obligation. In fact, he has dedicated an entire chapter to the subject in his book Islam and Modernism . Translated into English from the original Urdu with Usmanis blessing, chapter 11 sets out Usmanis legal ruling explicitly rejecting the notion that violent jihad is no longer obligatory for Muslims in the West. In this chapter, Usmani carefully explains that the goal of jihad is not freedom of religion but the absolute domination of the non-Muslim by the Muslim. The Muslims freedom to practice his religion in the West does not excuse the Muslim from his obligation to engage in violent Jihad against the non-Muslim West.
Thus, the problem with the live and let live approach is that there is at least one creed that will use every means available, including violence, to destroy every other. A civil society that is not prepared to make distinctions between anti-Western theo-political legal codes and innocuous religious ones could eventually find itself engaged in a battle for its very existence.
David Yerushalmi is senior attorney at the Institute for Advanced Strategic & Political Studies and legal adviser to the Center for Security Policy.
Islam and Modernism by Mufti M.T. Usmani