Presumptive presidential hopeful and former House Speaker Newt Gingrich wants Congress to pass "a federal law that says sharia law cannot be recognized by any court in the United States." The cause célèbre presumably animating Gingrich's concerns was a case in New Jersey involving a Moroccan immigrant whose wife alleged marital rape. The judge in the case rejected the wife's claim on the grounds that the husband's religious beliefs negated the likelihood of criminal intent. That these beliefs, which the judge presumed to be grounded in sharia, could actually exculpate this man, at least at the lower court level, proved to Gingrich that sharia was a mortal threat to American law, totally incompatible with "American values" and a contradiction of the most basic protections that Americans -- especially women -- take to be their birthright.
We may overlook for the moment that "marital rape" is a very recent concept in our American system, the first state to criminalize non-consensual sex between spouses being South Dakota in 1975 and the last being North Carolina in 1993. We may also overlook the unfounded assumption that the Moroccan man's understanding of sharia necessarily equals sharia. We may ignore as well Gingrich's appeal to "big government" as opposed to relying on the otherwise trusted market of ideas. We will even overlook the fact that a number of Christian conservatives have expressed reservations about the concept of "marital rape," arguing that marriage by definition implies consent to sex, even if it does not imply any right for either spouse to resort to violence. Instead, I would like to focus on what strikes me to be a much deeper and more problematic assumption underlying not only Mr. Gingrich's position but that of many others who see it as their duty to warn us about the dangers of sharia, often through painfully misinformed and misleading depictions.
A common approach to convincing people that sharia is at irreconcilable odds with America and that Muslims who argue otherwise are just not telling the truth is to refer to sharia manuals themselves, books written by Muslim jurists with the presumptive purpose of laying out the law of Islam. As the anti-sharia critics usually do not know Arabic themselves and are untrained in sharia, the books they rely on are invariably translations of books that are themselves invariably centuries old. Now, no one would claim to be able to give an accurate picture of contemporary Chinese, Indian or American law by citing manuals several centuries old. But when it comes to sharia, the assumption is that, as a religious law grounded in an unchanging divine revelation, the law itself must be fixed and unchanging. Thus, it makes no difference when or where a manual on sharia is written; these books all reflect the permanent, unchanging -- and unchangeable -- law of Islam.
This kind of thinking takes me back to graduate school and an old friend of mine, a 13th century Egyptian jurist, Shihâb al-Dîn al-Qarâfî (on whom I wrote my dissertation). Al-Qarâfî noted that the problem of taking sharia to be the equivalent of the contents of books was a problem even for trained jurists. He pointed out, however, that sharia is not the mere contents of the Qur'ân, the teachings of the Prophet and the schools of law but an attempt to process lived reality in light of these. As a result, law books always include the jurists' responses to facts on the ground in addition to their relevant interpretations of scripture and of tradition. As such, just as the socio-political, cultural, economic and other aspects of the facts on the ground are likely to change, so too must the law. In this light, al-Qarâfî insisted, it was patently wrong to hold contemporary societies to conclusions reached by the jurists of the past contemplating the realities of the past. To clarify his point, he poses the following question and gives the following response:
Q: What is the correct view concerning those rulings found in the school of al-Shâfi'î, Mâlik and the rest, which have been deduced on the basis of habits and customs prevailing at the time these scholars reached these conclusions? When these customs change and the practice comes to indicate the opposite of what it used to, are the fatwas recorded in the books of the jurisconsults rendered thereby defunct, it becoming necessary to issue new fatwas on the basis of the new customs? Or do we say, "We are mere followers. It is thus not our place to innovate new rulings, as we lack the qualifications to engage in independent interpretation. We issue, therefore, fatwas according to what we find in the books handed down from the master jurists."?
R: Holding to rulings that have been deduced on the basis of customs after these customs have changed is a violation of unanimous consensus and an open display of ignorance of the religion.
Al-Qarâfî was himself a follower of the school of Mâlik. But in a demonstration of his point, he argued that there were numerous rulings recorded in the books handed down from Mâlik on which it was not permissible to follower the leader. For example, Mâlik, who lived several centuries before al-Qarâfî, had indicated that certain phrases when uttered constituted a declaration of divorce. Against his fellow Mâlikîs, whom he casts as sloppy in their juristic thinking, al-Qarâfî insisted that these phrases had absolutely no legal effect whatsoever today.
You know that you do not find anyone using these phrases today for this purpose. On the contrary, whole lifetimes pass and no one hears anyone say [these things] to his wife when he wants to divorce her. No one hears anyone use these phrases today, neither to sever the marital bond, nor to designate the desired number of divorces.
Returning to Mr. Gingrich and those who follow his lead, it is true that books on sharia, especially the ones they quote, may not recognize marital rape as a legal concept. But this does not mean that sharia can never do so. Rightly or wrongly, the issue itself has simply not attracted enough juristic attention among American Muslims to produce a debate that is serious enough to produce new juristic perspectives on the matter. But just as the early community following the Prophet's death encountered new, non-Muslim realities and processed these into new sharia rules, there is nothing in sharia that would prevent a similar process from taking place in America today.
Of course, this is no guarantee that "marital rape" will gain acceptance as a sharia concept. (I personally see some of the same problems with it that I see with the concept of marital theft or libel.) But whether or not it does will depend on the deliberations of contemporary, especially American, Muslim jurists, not solely on whether or not this or that ancient manual recognizes it.
If the aim of Mr. Gingrich and his supporters is to protect and promote the welfare of all Americans, they might consider an approach that allows for mutual benefit in place of one that reduces us all to the blind pursuit of raw competitive advantage. On this approach, warnings about sharia might at least take seriously what American Muslim jurists have to say about the matter. It might also recognize that the fears, concerns and legitimate aspirations of American Muslims are no less worthy of consideration than those of their non-Muslim compatriots.