26 August 2011

Sharia: Can It Be Outlawed?

Written by 

I was teaching a seminar course on intra-Muslim debates on human rights at Yale University and we had just covered a variety of Muslim "fundamentalist" views. Out of fifteen students I had four Jews, four Christians, and seven Muslims. One Orthodox Jewish student (actually the president of the Yale Friends of Israel that year) raised his hand to comment, "I have to tell you that the more I listen, the more I connect with these conservative, politically active, law-oriented Muslims. No joke, not a day goes by that I'm not furiously involved in two or three arguments about religious law. This is what we breathe!"

Indeed, Judaism and Islam, unlike Christianity, are faith traditions that revolve around the down-to-earth, practical rules of living that were inspired by the sacred text, then distilled by rabbis and ulama' (Muslim jurists), first orally and then finally written down according their respective schools of law. Christians tend to be more preoccupied with right belief (orthodoxy), whereas right conduct (orthopraxy) commands the allegiance of Muslims and Jews.

The short prayer, or the Quran's first sura (or "chapter," out of 114 altogether), al-Fatiha ("the Opening"), which a practicing Muslim pronounces seventeen times a day in the course of five ritual prayers, says, "Guide us in the straight path." The word Sharia, which symbolizes the God-shaped form the world is to take as his people follow this path, also literally means "the path to the watering hole." So Islamic law is also the path of salvation through the arid and forbidding desert of life that leads into the gardens of bliss in the hereafter. In this blog I describe Sharia, as seen by Muslims, as divine, flexible and comprehensive. And so in the context of the current frenzy in several states to "outlaw Sharia," I'm arguing that 1) it's like telling a Muslim she can't practice her religion at all; and 2) it displays a staggering ignorance about how Islamic law actually works; and 3) there's nothing to fear about Muslims embracing Sharia.

First, Sharia in the Islamic perspective is divine in origin, since only God is the legitimate ruler of the world. The two main sources for discerning the will of the divine Legislator are the sacred texts – the Quran, first and foremost, and then the authoritative collections of all the reports (or hadiths) about what the Prophet Muhammad said and did. After all, he remains THE godly example all Muslims strive to follow; so this second source of Islamic law is called the Sunna (the "path" or "model" of the Prophet). At the same time, Muslim scholars have always recognized that sacred texts – whether the Quran, which contains the very words of God, or the Sunna, which houses reports of varying levels of authenticity and reliability – have to be interpreted by human beings (there are other "sources," but they are of the rational type, and I will leave them for another blog).

This is why "Sharia," as the symbol of God's will in this world and the next, is always distinct from "applied jurisprudence" in Islamic law (fiqh, from a word meaning "understanding"). Fiqh comprises the traditions of understanding and practical application of the texts that are followed in various schools of Islamic law (the Sunnis have ended up with four; and the Shia with only one). So one should never confuse Sharia with fiqh (though some Muslims do at times). Sharia is divine, whereas fiqh is man-made, and hence, flexible. In classical Islam, a jurist who had attained the highest level of learning and experience, the mujtahid (one who can practice ijtihad, or the "effort to produce a new ruling in a new situation") was said to receive a double reward if God deemed him correct, and only one reward, if not. In both cases the mujtahid had exerted much effort (notice: same root as jihad) to produce a correct ruling.

So, for example, the Quran forbids (as in the Torah) the eating of "carrion, blood, pork, meat offered to idols, or an animal that was strangled or killed by a violent blow" (Q. 5:4). In the grey areas, however, some schools say all aquatic animals can be eaten. But some say that only those aquatic animals in the shape of a fish can be eaten. Others say tortoises are forbidden, and all agree that frogs cannot be eaten, because of a reliable hadith in which the Prophet forbade the killing of frogs. On the other hand, all domestic animals can be eaten, but there is disagreement regarding riding horses and work horses. On this the Hanafis (one of four Sunni schools) say eating them is reprehensible. As you can see, flexibility is the watchword, and thus one often-quoted hadith has Muhammad saying, "diversity of legal opinions is a mercy."

Another sign of flexibility is the maxim that no rule holds under necessity. Stealing or eating pork is no sin if you are dying of hunger. Pregnant women, sick persons or travelers can put off their Ramadan fast till a better time. Using sand for the prescribed ablutions for prayer instead of water when none is available is fine. But more importantly – and this has become very popular today – attention to the "objectives of Sharia" has always led Muslim jurists to believe that its primary purpose was to benefit humanity. Here the key word is maslaha, translated as "public benefit," or even an equivalent to the "common good." This kind of emphasis of late, together with the quranic maxim that God wants to make our life easier, not harder, has led contemporary scholars to focus more on the spirit of the law, as opposed to the strict letter of the law (more on this in a blog devoted to human rights).

Finally, Islamic law is comprehensive. It is designed to help humans sort out all their various actions into five categories. Only the first and the last, the mandatory and the forbidden, have consequences for the next life. The recommended or praiseworthy are those actions, which if acted on will bring reward, but if shunned bring no punishment. The blameworthy or reprehensible category includes actions, which if carried out will incur a penalty (like eating work horses for Hanafis, and smoking for most jurists today); yet avoiding them brings no reward. The fifth is the middle category, covering the great majority of human acts: those that do not fall in the four above categories are neutral. Islamic law presumes that most of what people choose to do everyday is permissible, if in fact it is neither forbidden nor reprehensible.

There are two general categories covered by Islamic law: the religious rituals ('ibadat, or "worship items") and rules concerning human relationships (mu'amalat). The first category contains the "five pillars" of Islam: the shahada, or "testimony"; ritual prayers (salah); almsgiving (zakat); the month of fasting (Ramadan); and the pilgrimage to Mecca (Hajj), and a few other items as well. But the second category is the largest. "Human transactions" includes commercial and property law, judicial procedure, and criminal law. But notice: it never included constitutional law. In a blog devoted to Islam and politics I will show, God willing (in sha'a Allah), that Muslim rulers always ran their own legal system parallel to the Sharia courts, and that a wide variety of political arrangements over the centuries were deemed "Islamic."

Just like their Jewish counterparts, Muslims venerate Sharia as the path to God's blessing in this life and the next. Yet at least thirteen states in America today have bills pending to outlaw any use of Sharia. Arizona-based attorney David Yerushalmi, who has written for years about the danger that Sharia represents in subverting American freedoms, has now drafted the strictest bill for consideration by the Tennessee legislature. As far as he's concerned, it's only the part of Sharia that's connected to jihad that is targeted, because to his mind it could lead to the overthrowing of the US government. But as Islamic Society of North America spokeswoman Sarah Thompson stated, "The way that it's worded makes the assumption that any practice of Islam is a practice of terrorism. And that's a dangerous line to walk. It excludes the millions of Muslims that are practicing peaceably from the ability to do so."

All these attempts to impugn Islamic law will likely be declared unconstitutional in the end. As seen here, Sharia includes all of human life, but like many other aspects, past fiqh rulings on jihad have been hotly debated by Muslim jurists, and especially in the modern period (a topic for another day). Of course, there are classical readings of the texts that radical Muslims have leaned on to recruit from the wider Muslim community. There are also specific fiqh rulings from the past (still "on the books" in some places) that contravene established norms of human rights today. I'll deal with that later. What is clear, however, is that Sharia itself – as a sign and symbol – remains at the heart of Muslim spirituality. And for that reason, in the best tradition of our American democracy, we should shun witch hunts of all kinds and welcome to the table our fellow-Americans who happen to be Muslims, as we did – reluctantly at first – Catholics and Jews in the not-so-distant past.