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Why Shariah?

15 December 2010 New York Times 5 Comments Email This Post Email This Post

The High Court in Cairo. In Egypt, courts must act in accordance with the basic tenets of Islamic jurisprudence.

This is piece is a few years old, but Noah Feldman of the New York Times does an excellent job at explaining what Shariah is:

Last month, Rowan Williams, the archbishop of Canterbury, gave a nuanced, scholarly lecture in London about whether the British legal system should allow non-Christian courts to decide certain matters of family law. Britain has no constitutional separation of church and state. The archbishop noted that “the law of the Church of England is the law of the land” there; indeed, ecclesiastical courts that once handled marriage and divorce are still integrated into the British legal system, deciding matters of church property and doctrine. His tentative suggestion was that, subject to the agreement of all parties and the strict requirement of protecting equal rights for women, it might be a good idea to consider allowing Islamic and Orthodox Jewish courts to handle marriage and divorce.

In the Muslim world, on the other hand, the reputation of Shariah has undergone an extraordinary revival in recent years. A century ago, forward-looking Muslims thought of Shariah as outdated, in need of reform or maybe abandonment. Today, 66 percent of Egyptians, 60 percent of Pakistanis and 54 percent of Jordanians say that Shariah should be the only source of legislation in their countries. Islamist political parties, like those associated with the transnational Muslim Brotherhood, make the adoption of Shariah the most prominent plank in their political platforms. And the message resonates. Wherever Islamists have been allowed to run for office in Arabic-speaking countries, they have tended to win almost as many seats as the governments have let them contest. The Islamist movement in its various incarnations — from moderate to radical — is easily the fastest growing and most vital in the Muslim world; the return to Shariah is its calling card.

Then all hell broke loose. From politicians across the spectrum to senior church figures and the ubiquitous British tabloids came calls for the leader of the world’s second largest Christian denomination to issue a retraction or even resign. Williams has spent the last couple of years trying to hold together the global Anglican Communion in the face of continuing controversies about ordaining gay priests and recognizing same-sex marriages. Yet little in that contentious battle subjected him to the kind of outcry that his reference to religious courts unleashed. Needless to say, the outrage was not occasioned by Williams’s mention of Orthodox Jewish law. For the purposes of public discussion, it was the word “Shariah” that was radioactive.

In some sense, the outrage about according a degree of official status to Shariah in a Western country should come as no surprise. No legal system has ever had worse press. To many, the word “Shariah” conjures horrors of hands cut off, adulterers stoned and women oppressed. By contrast, who today remembers that the much-loved English common law called for execution as punishment for hundreds of crimes, including theft of any object worth five shillings or more? How many know that until the 18th century, the laws of most European countries authorized torture as an official component of the criminal-justice system? As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.

In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Shariah for a handful of offenses, we rarely acknowledge the high standards of proof necessary for their implementation. Before an adultery conviction can typically be obtained, for example, the accused must confess four times or four adult male witnesses of good character must testify that they directly observed the sex act. The extremes of our own legal system — like life sentences for relatively minor drug crimes, in some cases — are routinely ignored. We neglect to mention the recent vintage of our tentative improvements in family law. It sometimes seems as if we need Shariah as Westerners have long needed Islam: as a canvas on which to project our ideas of the horrible, and as a foil to make us look good.

>> Continue reading: Why Shariah?

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5 Comments »

  1. Religious law is a bad idea for any courts to consider, period.

    The law of the land should always remain non-religious.

    That said, I do feel that the courts should take into consideration certain religious “traditions” in matters pertaining to family matters, inheritance, burial, etc. so long as those traditions don’t conflict with the existing non-religious laws of the land.

  2. The idea of Sharia becoming a part of “common law” probably wouldnt hurt in certain instances. I am of the opinion that Muslims should have the right to their own CIVIL court under Sharia. i.e. monetary disputes, divorce settlements, etc. The applicable punishments adhering to national common laws. The author of this article is correct in his assertion that Sharia has been traditionally more liberal and more humane than that of the laws of the Judeo-Christian world. This is, admittedly, assuming that the authorities overseeing the Sharia courts adhere to Sharia Law, as opposed to a sectarian or narrow interpretation of such. In the realm of the criminal, for example, one has to look at the law itself and the implications of the application of said law. Yes, according to Sharia, the thief’s hands are to be cut off under certain circumstances. If it is determined that a person stole out of necessity as opposed to greed, then the community is to blame for failing in the third Pillar of Islam(Zakat) which is almsgiving and charity. The idea that needs to be understood is that Sharia is a major part of how Muslims identify with their faith and thusly their humanity. I understand that it would add another level of bureaucracy which no one really wants, but I think if properly applied to civil cases it would assist in the cultural understanding of a group of people and their laws which are quite widely misunderstood. I dont see a problem with Muslims handling their business in-house and Im quite alright with them paying for it in-house

  3. also the de-facto status of England’s separation of church and state does not fully represent England’s population in general.

  4. Religious law of any kind has no place in the United States. If some Christians had their way, everyone would be required to follow their idea of Christian Law. The United States has many religions as well as people who are not religious. No religion should take precedent over other religions. We need to retain the right of religious freedom, but it needs to be tempered with following US Law. There is a healthy separation of church and State in USA, which our forefathers had the foresight to put into place, to protect citizens from religious persecution.

  5. The Shariah Law is like Kosher Laws, if you ban them you have to ban Kosher!

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