Sharia and the Separation of Church and State

     The latest Islamic threat to America, according to some, is �Sharia� � traditional Islamic law.

     See, for example, this report from the Center for Security Policy, �Sharia: The Threat to America,� and this interview by Glenn Beck with Frank Gaffney, the founder of the Center.

     What is Sharia, where is it in force, and what precisely is the threat that it poses?

     The nature and scope of Sharia varies dramatically from country to country.  A few Islamic countries (like Turkey) are governed by popularly adopted constitutions and secular legislation; in many (like Indonesia) Sharia influences which laws are adopted by the legislature and which are enforced; and in a few (Saudi Arabia, for example) Sharia is law, and the law is interpreted and applied according to the will of religious authorities.

     In medieval times Muslim countries were wealthy and the West was poor; the Near East boasted great cities and conducted trade in luxury goods with India and China, while Europe was an economic backwater, simply harvesting crops and exporting raw materials. Similarly, during the early Middle Ages Sharia was more advanced than Western law was. Islamic law recognized certain aspects of women�s rights centuries before western civilization did; in addition, at that time areas under Islamic control were more tolerant of other religions than western Europe was (Spanish Inquisition, anyone?). In the Late Middle Ages, however, Islamic law froze in place like the rest of Muslim civilization. During the Renaissance, the Reformation, and the Enlightenment, the people of the West struggled towards political and religious freedom, and they adopted new ways of thinking, embracing the scientific method, rationalism, individualism, and democratic institutions. In contrast, Muslim peoples were conquered and controlled by foreign empires. Great universities withered, libraries burned, and a culture that had preserved the wisdom of the ancients fell into ignorance and impotence. All that they had left was tribal loyalty and the comfort of their religion.

     Islamic fundamentalists remember all this. They remember with pride their crushing of the Crusades, their conquest of Constantinople, and their political and intellectual ascendency. They recall with bitterness the fall of the Ottoman Empire and the consequent colonialism by the West. Maniacs like Osama bin Laden yearn for a return to their glorious past, a Caliphate that will, like Hitler or The Brain �take over the world!� But these extremists represent only the smallest fraction of Islamic society. Judging all Muslims by the standard of al Qaeda and bin Laden is like equating all Americans with the American Nazi Party and George Lincoln Rockwell. They are nuts.

     Sharia is no threat to America in the sense that it will become the law here. Sharia is a relatively simple system of justice. There are no statutory codes, no binding decisions of judicial precedent, no juries, and no appellate courts. Oral evidence, particularly statements made under oath, are preferred over documentary evidence, scientific evidence, and expert opinion. Koranic law, historical reports of practices from the early days of the religion, scholarly explanations of the law, and local traditions supply the substance of the law. Sharia is adequate for a traditional society that honors collective conformity over individual right, simplicity over nuance, and consistency over flexibility and growth. It is utterly inadequate to govern a vibrant, complex, commercial society. No qadi judge is capable of deciding an antitrust case.

     There are also brutal aspects to Sharia, particularly as it pertains to religious matters. The principal Koranic crime is apostasy. Leaving the Islamic faith is punishable by death. It is also a capital crime to persuade someone else to abandon Islam. Heresy is a capital offense. Blasphemy is a serious crime. Women also do not fare well under Sharia. Some Islamic countries condone practices such as polygamy, honor killing, and female �circumcision.� These are rightfully considered by us as serious human rights abuses. However, America is no more likely to enact �honor killing� or punish �apostasy� than it is to embrace communism or the Code of Theoderic.

     The core problem with Sharia is not that a few terrorists dream of world domination under Islamic law, but rather the effect that it has on societies that attempt to be guided by it. There are some advantages to Sharia. The Islamic courts are probably more efficient and less corrupt than the civilian courts of many Islamic countries. However, those who are truly beholden to Sharia believe that the Law of God always trumps the Law of Man � that religious law is sacred and democratically enacted laws are an abomination. The consideration of Sharia as law constitutes a barrier to entry into the modern world. Until the people of Muslim countries become less passive � until they take responsibility for themselves and learn to enact and enforce their own laws � until they embrace the notion that sovereignty rests in the people not in God, that lawful authority rests in elected representatives not self-appointed Imams or a royal family � until they truly believe that all men are created equal, and that no-one is endowed with the divine right to govern other people � until this happens, the seeds of democracy will land on infertile soil in Muslim countries.

     There are many people in America who do not respect the first principle of the Bill of Rights � the Separation of Church and State. It may be ironic, but it is no contradiction, that the Americans who most vociferously opposed the building of the �Ground Zero Mosque� are the same people who most ardently wish to have Christian symbols adorn public buildings, and those who most loudly proclaim the threat to America that Sharia poses are the same people who insist that their own religious views on abortion, contraception, and same-sex marriage must be made into law so that they can dictate the conduct of other citizens who do not share those religious views. These people perceive the threat of Sharia through the lens of unconscious self-knowledge. At some level they are aware that if they had the opportunity they would impose their own religious customs on all of the American people.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

Tagged as: constitution, islamic law, qadi courts, separation of church and state, Sharia