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M. Zuhdi Jasser

M. Zuhdi Jasser

Posted: May 11, 2009 03:28 PM

Getting Real on Shariah

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Recently, the Obama administration released a message to senior Pentagon officials instructing that the term "Global War on Terror" is no longer to be used. It is to be replaced with "Overseas Contingency Operation" (OCO). Set aside the flashbacks to meaningless phrases employed by "Big Brother" in Orwell's 1984, are we really now of the opinion that there is no common unifying ideology which hatches the radical Islamist groups attacking us?

Many of us have been proclaiming for quite a while that the "War on Terror" (WoT) was obviously misnamed. A nation cannot have a military engagement (a war) against a tactic. It would have been no different to have called WWII a "War on Blitzkrieg." We were rather more clearly fighting the ideologies of Nazism and fascism. But OCO is a major step backward from WoT. The current conflict can also be defined against an ideology. It is certainly not about random acts of violence. There are some obvious and definable common ideologies and goals of the perpetrators of radical Islamism. Their primary unifying cause is the overriding ideology and dream of Islamism -- the goal of establishing the Islamic state. Whether it is the Muslim Brotherhood, Hezbullah, HAMAS, the Taliban, Islamic Jihad, Al Qaeda, Lashkar e-Taiba, Jamaat Islamiya, Muhajiroon or the Wahhabis of the Kingdom of Saudi Arabia to name a few, these groups all have common core ideologies driving their radical movements. The commonality of these groups is simply put -- radicalized Islamism. Radical because they seek "any means necessary" including terror -- "the targeting of noncombatants." They are "Islamist" because their ultimate goal is the establishment of various forms of "Islamic states." Thus we can no longer ignore the fact that non-radical (non-violent) Islamists who seek a peaceful means of establishing an Islamic state are also part of a global movement which stands against western secular liberal democracies.

The Islamic state is a nation-state based upon the premise that the rule of law of the nation is guided by the legal constructs of Shariah. Shariah is the body of laws of Islamic jurisprudence as interpreted and enacted by clerics and scholars (ulemaa) of Islamic law. To Islamists, societies like ours in the United States based in "one law" derived from reason and a human document are an anathema and represent the ideology of "Godlessness."

Recently on these pages on April 24, 2009, Imam Faisal Rauf made a brief dismissive argument that somehow in his own understanding, interestingly as an expert and an imam (Arabic for "teacher"), Shariah is a benign concept that no one should fear. Sorry but as devout Muslims, my family came to the U.S. to have the freedom to choose our own religious advisors. Most Muslims actually want to steer clear of any public legal system run by clerics (Imams) who make interpretations of Shariah not for individuals but for the collective--thus imposing Shariah. He stated:

It is important that we understand what is meant by Shariah law. Islamic law is God's law, and it is not that far from what we read in the Declaration of Independence about the Laws of Nature and Nature's God...

What Muslims want is to ensure that their secular laws are not in conflict with the Quran or the Hadith, the sayings of Muhammad. Where there is conflict, it is not with Shariah law itself but more often with the way the penal code is sometimes applied. Some aspects of this penal code and its laws pertaining to women flow out of the cultural context. The religious imperative is about justice and fairness. If you strive for justice and fairness in the penal code, then you are in keeping with the moral imperative of the Shariah.

What Muslims want is a judiciary that ensures that the laws are not in conflict with the Quran and the Hadith. Just as the Constitution has gone through interpretations, so does Shariah law. The two pieces of unfinished business in Muslim countries are to revise the penal code so that it is responsive to modern realities and to ensure that the balance between the three branches of government is not out of kilter. Rather than fear Shariah law, we should understand what it actually is. Then we can encourage Muslim countries to make the changes that achieve the essence of fairness and justice that are at the root of Islam.

One must first congratulate the imam for having the courage which few leading Muslims have had to actually raise these ideas on Shariah in mainstream media. However, his hypothesis cannot be left unanswered on this blog. To do so would be to deny the core struggle, arguably the most important element of the battle of ideas between the West and Islamism in the 21st century. This battle is only just beginning within the very soul of Islam as it is practiced by Muslims in every nation across the globe. If Imam Rauf's brief summary of Shariah teaches anything, it reveals the depth of denial and apologetics in our Muslim faithful and especially among our clerics and their fantasies on Shariah versus the reality.

To a Muslim, Shariah is certainly by definition "God's law." But once it is interpreted and enacted by Muslims it becomes human law regardless of what we may call it. Rauf's comparison to our U.S. Constitution implies some kind of synonymous balance of powers in a system based in Shariah. First, no real example exists on earth of such a codified and functional interpretation of Shariah in any governmental system. And even if there were, would Imam Rauf want to live as a Muslim minority in the United States if his rights were similarly "promised" by a Christian majority which had a semblance of balance of powers in a system guided by the religious laws of the majority? Comparing the universality of our American system based in one secular law to a legal system based in the interpretations of clerics like Rauf is either uninformed or intentionally deceptive. Not only is Shariah centuries behind such checks and balances, but no matter how "balanced," it is still theocratic where American law is secular.

Mr. Rauf oddly dismisses imams who disagree with him as rare aberration of a "firebrand" quality. Are lay Muslims to entrust the interpretation of Shariah to the whim that clerics like Rauf will lead the interpretations rather than the "firebrand" clerics Rauf offhandedly minimizes? Actually many of the tried and true Islamist imams are not "firebrand" but rather thoughtful in their preference of the Islamist system of Shariah over the universal secular system based in reason. That is the danger of theocracy. Lay people and non-Muslims alike are left to the devices of clerical powers. In what can sadly only be described as denial, he ignores the fact that Shariah is not a secret, it fills mosques, Islamic bookstores, and madrassas (schools) across the world. His generalization of what Muslims actually believe about Shariah has not been studied empirically and may actually be true. But to whatever Muslims he is referring in his generalizations about "what Muslims want" are certainly not from the leading "Islamic institutions" or "Islamic thought leaders" around the world in Cairo (i.e Al-Azhar University) or Saudi Arabia.

It is our mission at the American Islamic Forum for Democracy to publicly counter and debate political Islam (Islamism) and the harmful integration of the political imam and Shariah into governmental law. While many Muslims may practice a "modernized Islam," we have very little intellectual material to counter the current state of Shariah. Rauf's assertions come out of an assumption that Muslims want to live in an "Islamic state" run by laws which are Shariah or mimic Shariah. It is quite revealing that Imam Rauf is silent on the preference of most Americans of secular law over theocracy no matter how "balanced" his version of Shariah may be. Rauf's endorsement of Shariah runs against our own Establishment Clause, the separation of church and state -- in his case "mosque and state."

Shariah is not just a misapplied penal code as Rauf would suggest. Just review the Cairo Declaration of Human rights of 1991 and try to explain why all the so-called "Islamic" countries of the OIC insisted on signing that document instead of the truly universal United Nations' Declaration on Human Rights. The differences between the two documents are an affront to human rights of all citizens and especially the individuals living in the 57 nations of the OIC (Organization of Islamic Conference). The Cairo Declaration reflects not only the immorality of their dictatorships, monarchies, and oligarchies but also reflects the current medieval status of the body of laws which is Shariah in the 21st century.

Muslims living in the west may have modernized our interpretations of Shariah (God's law) by living here and picking and choosing our own interpretations of how we may practice "God's law". But that is only of personal relevance. Rauf mixes public and private Shariah as if all Muslims see them as synonymous. Not all Muslims tow the line of political Islam despite Imam Rauf's obvious avoidance of any condemnation of political Islam. Some Muslims do believe that real faith is abrogated when it is imposed by government as 'law'.

There must be a clear demarcation between the domain of the cleric's laws and the domain of our government's laws -- i.e. our Establishment Clause. The American Establishment clause is incompatible with any form of Shariah. Imam Rauf ignores this fact. It is no longer "God's law" when it is interpreted into any manifestation of human law. "God's law" is only "God's law" within the personal relationship of an individual with God. Once a human collective interprets law if it is done in the name of religion, it is theocracy, not God's law. Rauf's linkage to the Declaration of Independence rings on deaf ears. No matter which way he spins it, one faith cannot create a system of laws for all humanity unless it comes from a supremacist theocratic mindset.

Rauf dismisses reform as simply being a matter of updating penal codes and customs associated with culture. He equates his own interpretation of Shariah with the ideas of our founding fathers. I am sorry but he does not understand American law. The word Christian does not appear in our Declaration of Independence or our Constitution. A system based "under God" is vastly different than one based under the legal tradition of one faith regardless of how "ecumenical" Imam Rauf would like us to believe his version of Shariah has become. Certainly, I would love to be referred to consensus documents and books of fiqh (human understanding of Shariah or Islamic jurisprudence) which are actually demonstrative of legal decisions which corroborate his short missive on the benevolence of Shariah. The vast majority of books on Shariah and fiqh which I have are riddled with laws and opinions incompatible with American law or any western law including rulings regarding women's rights to name one area.

Additionally, one can academically use American law as a yard stick on a blog, but when these Shariah systems are autonomous in Muslim majority nations, they will not use American law as a yardstick and will always drift to a theocracy which does not come close to the minority rights of equality to all recognized in America. American law works because it abandoned the theocratic yardstick.

That reform away from governmental Shariah will take generations regardless of the denials and apologetics of imams like Rauf. Certainly, aside from government, a modernization of Shariah is very important and commentaries like Mr. Rauf's demonstrate that there is certainly a profound need for real reform and in fact all Muslims have a stake in our legal tradition being updated. At the minimum we must first defeat the ideas of theocracy.

More importantly, though, is a far more significant discussion of exactly what should be the realm of operation of the clerics and their Shariah. Should it be in the mosque and universities or should it be in the public square specifically in the legislatures? This concept of a modernized Shariah which is equal and universal is impossible for a non-Muslim to accept or become a part of as a minority in Muslim majority nations -- just ask the Bahais of Iran, the Ismailis of Pakistan, the Christians of Saudi Arabia (if there are any left) or the persecuted anti-Islamist Muslims of any of these nations. Minorities are not given rights by majorities as Shariah implies, they have them inalienable from God. Thus law cannot be defined by one faith -- it must be derived from reason.

Certainly, for a Muslim to live with internal harmony as citizens in our nations, we must come up with a personal interpretation of Shariah which is not at odds with the laws of the land. More importantly we should have the freedom to practice the personal parts of Shariah (God's law as we understand it) which we believe in as Muslims. But this application of Shariah should never become a platform for political activity or for government. Once it does, it becomes theocracy. Does Imam Rauf not see a difference between a nation of laws like the United States and nations of the medieval era which ran under Canon law? Or would Imam Rauf rather live under a system of Canon law with priests giving our Muslim minority dismissive guarantees that the rights of non-Christians would be guaranteed just like our U.S. Constitution provides?

Mr. Rauf, please point us to your fatwas (religious legal opinions) and sources of Shariah which contradict the laws of Shariah which guide schools in Saudi Arabia, Al-Azhar University in Cairo, Syria, and Pakistan to name some of the most common sources of imams (teachers who are experts in Shariah law) globally. These schools teach ibn-Taymiyyah, Ibn -Kathir, Al-Mawdudi, and other well known Islamic scholars of the primary legal schools of thought in Islam. There are four major schools of legal thought in Islamic fiqh (hanafi, Shafii, Hanbali, and Maliki) with very little significant difference between them. Many of the rulings of these schools of thought vary on some specifics of religious rituals in forms of practice but agree on most other issues. Rauf, neglects telling us which of these schools of thought he is discussing; I believe that is because it does not exist. His concept of Shariah is still in the imagination and whims of western imams sitting in the comfort of homes in the United States pretending that Islamic law has reformed without any evidence or body of rulings to the contrary.

Tariq Ramadan, a rather deceptive European "reformist" and grandson of the Muslim Brotherhood founder Hassan al-Banna, in a widely televised debate with now President Nicolas Sarkozy could not even get himself to definitively rebuke corporal punishment as still called for in Shariah law rulings rather calling for a moratorium. He instead cited a process of change which has to be approached methodically. This consensus process (ijmaa) in rulings of Islamic law, while it may ultimately begrudgingly evolve towards modernity is not ever going to be as egalitarian as western liberal democracies since it is based on one faith regardless of the utopian principles which any Muslim may paint for western audiences. Until Muslims are able to separate mosque and state, the slippery slope of Islamic supremacy will be a constant regardless of how deceptively modern the version of Shariah being presented is.

None of the legal schools of thought in Islam have abandoned laws which criminalize blasphemy, apostasy, or womens' liberation to name a few. None of these schools of thought or classic Islamic jurists have well known established texts which contradict the political system of Shariah which identifies Christians and Jews as "dhimmis" (protected peoples) who are "given" rights by a dominating Muslim majority and pay a separately identified tax (the jizya) at the behest of the Muslim majority in control. None of these schools of thought have given women equality in inheritance or in the value of their vote in legal proceedings. None of these schools of thought have abandoned the concept of the Islamic nation state and the association of citizenship with faith identity (the ummah). A common Muslim legal text sold at large Muslim bookstores and conventions -- The Reliance of the Traveler -- is a widely held treatise on Islamic law which contains a plethora of legal rulings at odds with all principles of western morality and equality. There is no modern text of Islamic law to counter this. Even if these laws were modernized globally by some heretofore unseen movement of imams, that again would not abrogate the slippery slope of Islamic supremacy which is present when Shariah involves itself in governmental and public rulings which apply to an entire citizenry.

So, ultimately Imam Rauf, yes, Shariah is "God's law" to a Muslim including myself. And yes, Muslims generally probably just want their society not to conflict with what is God's law. But Mr. Rauf mentioned that "Muslims do not want secular laws to conflict with Shariah." That is way too overly simplified and actually not what many Muslims believe --especially non-Islamists.

I, as a Muslim, can certainly argue for the legalization of many things which I may not want to practice or believe should be practiced as an individual or as a Muslim. But to argue that I want my secular laws to mirror my Shariah is flat wrong. Rauf is denying the fact that one can, for example, be a libertarian in mindset and believe in the minimization of the role of government in imposing its values through law while also being a devout orthodox Muslim. The two are not mutually exclusive and Rauf's oversimplification gives Islamist groups (those who favor Shariah law in government) what they want to hear rather than to lead them in new thought which can only happen when Islamism (political Islam) is abandoned.

M. Zuhdi Jasser is the founder and President of the American Islamic Forum for Democracy, based in Phoenix, Arizona. He can be reached at zuhdi@aifdemocracy.org.