July 15, 2016

On Sharia Law

Recently, in an interview, Newt Gingrich had this to say:
Let me be as blunt and direct as I can be. Western civilization is in a war. We should frankly test every person here who is of a Muslim background, and if they believe in Sharia, they should be deported.
A Facebook friend stated the following in reply:
If a political leader, in an effort to reduce violence against the LGBT community, suggests that American Christians should be "tested" to make sure they don't believe that homosexual acts are sinful, we should be outraged. If a political leader, out of concern for violence by radical Islamists, suggests that American Muslims should be "tested" to make sure they don't believe in Sharia, we should be outraged. Please take the time to learn about Sharia before you let fear tempt you to abandon our nation's commitment to religious liberty.
This is a very good point by my Facebook friend. A number of years ago, I read a bit about Sharia Law, and it is a great deal more complex than Gingrich's statement might lead one to believe. If Wikipedia may be used, regarding source, interpretation, etc. of Sharia:
There are two primary sources of sharia: the Quran and the Hadiths (opinions and life example of Muhammad). For topics and issues not directly addressed in these primary sources, sharia is derived. The derivation differs between the various sects of Islam (Sunni and Shia are the majority), and various jurisprudence schools such as Hanafi, Maliki, Shafi'i, Hanbali and Jafari. The sharia in these schools is derived hierarchically using one or more of the following guidelines: Ijma (usually the consensus of Muhammad's companions), Qiyas (analogy derived from the primary sources), Istihsan (ruling that serves the interest of Islam in the discretion of Islamic jurists) and Urf (customs).
Even if not perfect, this is obviously a fairly complex system which would require greater study. However, I think that, in many ways, Sharia law would be offensive to the average Western mindset, particularly the modern one, steeped in egalitarianism. Many states, being of this mindset, have passed laws limiting what is permitted of Sharia law to be considered by courts. Some commentators, such as Rob Vischer, here, note that this could be an error and problematic, when considered as part of a broader anti-religious freedom agenda by moderns. Prof. Vischer concludes, therefore:
When the state encroaches on the venues in which people live out their core beliefs including the legal venues in which those core beliefs are given real-world efficacy the cause of conscience suffers. An ascendant secularist vision of the public marketplace already excludes traditional Christians, or at least requires, as the price of admission, that they defy their own commitments. It would be a sad irony for Christians to be complicit in the effort to do the same to American Muslims. 
However, with this said, at least one commentator has indicated that Sharia law is only really possible in a society in which Islam was the official religion of the state, so to speak. What seems to be happening in other countries is that Sharia is being implemented at a contractual level. The linked contract contains provisions designed to govern the couple in marriage and divorce. One of the more interesting provisions, that Westerners may find odd or repugnant, is the following, regarding divorce:
If the divorce is initiated by husband he has to pay the woman any Mahr (consideration for the marriage contract) that remains unpaid. 
If the divorce is initiated by the wife, and the husband is found to be at fault by the arbiters she does not lose her Mahr.  But if she cannot prove his fault, she has to return to her husband whatever Mahr amount she has already received.  
If the wife initiates the divorce without any grounds, this is called ‘khula’ and she must return whatever the husband has given her in consideration for the marriage.
So, on the one hand, the husband need not prove fault or grounds if he initiates the divorce, but must pay to the wife any promised amounts under the marriage contract. If she initiates the divorce for no "fault" reason, or cannot prove fault, then she must return any amounts received. The modern Western mind would find the differences in proof and treatment to be quite different than our "no-fault" laws.

In a more extensive discussion here, the authors note that there are wide-ranging interpretations of how Sharia handles marital conflict. This should be noted carefully by all individuals considering Sharia and implementation of any part of it contractually or culturally in the United States. For instance, in the event that a wife has engaged in nushuz (itself susceptible to a variety of interpretations, from adultery to "the wife disobeying her husband elevating herself above what Allah has obliged upon her and her raising herself above fulfilling her obligatory duties"):
First the couple is instructed to discuss the issue, but if they cannot come to an understanding they should sleep separately. If the issue is still not resolved, the husband can employ the act of “daraba,” and as a final resort the husband and wife are each instructed to select a family member to assist in arbitration (Qur’an 4:35). The word daraba has been translated and interpreted in many different ways. All of the five primary schools of traditional Islamic jurisprudence are in agreement that daraba should be interpreted as “hit” or “beat”; yet there is a wide range of opinion on the form the hitting should take (Wadud 1999). Most commonly, traditional legal scholars agree that hitting should not leave any physical bruising or marks, and thus should be done with something small and weightless such as a toothbrush or handkerchief. Other scholars hold that as the verse was meant to limit wife abuse, it should be understood within the context of forbidding domestic violence (al-Hibri 2003; Alwani 2007; Barazangi 2004; Wadud 1999). Some contemporary exegetes and scholars, however, believe that daraba should be translated and interpreted as “leave,” as daraba is used in 17 other places in the Qur’an with many other meanings (AbuSulayman 2003). These scholars believe such an interpretation to be a more rational step between sleeping separately and arbitration, as having time apart provides time to reflect, while hitting would escalate the situation and make arbitration more difficult.
There is matter for concern here, I would hope, to any Western scholar. Surely, the more modern interpretations of "daraba" and of "nushuz" would be preferable, but at least five schools of Sharia interpretations permit physical retaliation in the event of marital discord. There is no obvious discussion as to whether a husband can similarly commit nishuz, and what a wife may do in retort.

In short, Sharia contains many interpretations (such as the prohibition of abortion) that would be attractive to Christians. It also contains many that would be repugnant or disturbing to a Western mind, Christian or otherwise. While we might avoid blanket "anti-Sharia" legislation, we might reaffirm Western norms against physical violence within marriage, as well as commitment to equality before law and in contract between the sexes, and strive to understand what version, if possible, of Sharia with which we are faced in any given situation,

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