Global Intifada

I’d like to begin this post by making two disclaimers: (1) I do not want to see Shari’ah in the West. I do, however, believe that sovereign nations have the right to govern their countries without any invasive coercion from other states in so far as they do not infringe upon the rights of other people; and (2) I unequivocally reject terrorism which I define as the targeting of civilians and property in warfare regardless if it is conducted by individuals, groups, or states. I am not making these statements merely because it is “politically correct” to do so. Nor am I saying this out of fear of sanctions of some sort. I believe all people should have the right to live as they please with minimal interference from other states or powers who may only intervene in the affairs of others for compelling reasons. I do not support hegemonic states, whether Western or Islamic. My concern for instituting the Caliphate has more to do with the fulfillment of a communal religious obligation and the preservation of the territorial and economic integrity of Muslim peoples throughout the world. I would not like to see such the resurrection of an expansionist state, rather, I would like to see a Muslim state that provides a harmonizing balance in international relations between all nations that promotes social justice in all arenas of human affairs. Now that I’ve established the ground rules, I’m going to dive into the meat of the subject.

There has been a lot of controversy in Western countries regarding a perceived fear that “the Muslims are coming” and are a fifth column that are lurking in the shadows, waiting for the right moment to either blow something up or enforce “the Shari’ah.” {dun dun DUNHHHH}. This controversy bubbled up recently in England when Rowan Williams, the Archbishop of Canterbury, said in a speech that implementing some Shari’ah was unavoidable. The reaction that followed was typical: people who had no knowledge of the nuances of Islamic law jumped to gross and outrageous conclusions that were total misrepresentations of how the legal system itself operated. People have invoked images of limbs being chopped off, women getting stoned, and babies getting devoured in an orgy of cannibalism. Okay, scratch the last one, but you get my point. Shari’ah = barbaric, ergo, Muslims who espouse it are barbarians, ergo, freak out.

The problem with the public discourse on this issue is that it is entirely mistaken. The Shari’ah is a wholistic legal system that governs virtually every single aspect of human activity. It not only governs private worship, but social relationships, commercial transactions, family law, environmental law, and even animal rights. The criminal law aspect of the Shari’ah is only one facet of that system. Mr. Williams made it entirely clear that he was referring only to the civil aspect of the Shari’ah, not the criminal aspect:

“Nobody in their right mind, I think, would want to see in this country a kind of inhumanity that sometimes appears to be associated with the practice of the law in some Islamic states — the extreme punishments, the attitudes to women as well.”

In contrast to the Islamophobic sentiment that argues that Muslims should not get preferential treatment from other religious groups, Mr. Williams pointed out that providing Muslims with legal mechanisms to implement the civil aspect of the Shari’ah was nothing new as other religious groups already had such rights, such as members of the Jewish faith. The argument that the civil laws of Islam are “barbaric” and in conflict with “British values” is absurd as Islamic law is very similar to Jewish law in many regards, yet no one would dare assert that its in conflict with British values. Moreover, Mr. Williams made it clear that multiculturalism was necessary for the doctrine of pluralism, an essential component in any democracy, to be meaningful:

“If what we want socially is a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty, it seems unavoidable.”

“We have Orthodox Jewish courts operating in this country legally and in a regulated way because there are modes of dispute resolution and customary provisions which apply there in the light of Talmud.”

“It’s not a new problem, not to mention the questions . . . about how the consciences of Catholics, Anglicans and others who have difficulty over issues like abortion are accommodated within the law; so the whole idea that there are perfectly proper ways in which the law of the land pays respect to custom and community, that’s already there.”

Some of the more clever Islamophobes have developed more nuanced arguments, focusing less on the hysteria-driven jingoist drivel and more on legal arguments. Some commentators, such as Matthew Lynn, have argued that creating multiple legal systems for different religious groups would create confusion, result in forum-shopping, and fail to sufficiently integrate Muslims into mainstream European culture. This argument is prima facie flawed.

Firstly, as Mr. Williams pointed out, the legal system already accommodates various religious groups, he is calling for an official legalization of that process; a process that already exists for members of other faiths.

Secondly, it not creating a multi-layered legal system, it is instituting a system of arbitration that the parties themselves consent to. Thus, it would be no different from the types of arbitration clauses that one finds in many sales and leases, real estate, or employment contracts. The only real difference is that the forum is not in commercial transactions, but in family law that seeks to accommodate one’s religion.

The third argument is also severely flawed since it will lead to the legal integration of Muslims into British society and alleviate the pressures of identity politics that seem to be so prevalent in that part of the world. By acquiring benefits, rather than burdens, Muslims, and any other racial or religious group, would have their interests tied into the state and become more integrated as a result.

Other commentators, such as Father Raymond J. De Souza at the National Post, have raised the banner of secularism as a defense and have argued that the government should not get involved in such religious disputes for the fear that it will inevitably violate religious freedoms. He writes:

“First, religious liberty requires that the state not intrude upon the religious beliefs of its citizens, demanding of them what they cannot do in good conscience.”

. . .

“Second, religious liberty cannot be merely procedural, an agreement for civility’s sake not to interfere with people going about their religious affairs.”

While this argument may seem appealing at a first glance, it is based on faulty premises. The state is not interfering in people’s religions. It is serving as an arbitrator in alternative dispute resolution procedures that the parties themselves have consented to . . . a practice which is prevalent in most religious communities. The only difference is that the state is involved as an arbitrator. This is, however, necessary for arbitration agreements to carry any weight. The pronouncements of an arbitrator in marriage or divorce cases would be meaningless without the power to effectuate those judgments. Since the parties themselves have consented to this process, there civil liberties cannot be deemed to be restricted. The state would not be concerned with substantive law, but procedural law in its entirety. It would not be stating what is halal or haram, lawful or prohibited, in Islam, but allow judgments to be made by a religious cleric that the parties themselves have agreed upon. Now, it is true that this may be problematic if there were changes in one’s religion or denomination, but such possible problems can be preemptively addressed in the original arbitration clause in whatever legal document the parties have made together.

A final argument raised by some legal commentators is that the Shari’ah is too complex to be implemented in this manner. The differences between various theological groups (Sunni, Shia, Ibadhi, Mu’tazili) and juristic groups (Madhabi, Ghayr Madhabi, Shias, Ibadhis, etc) are too numerous to create a coherent legal system. Instead, it would lead to an increase in litigation, flood the courts with cases that secular non-Muslim judges are not qualified to handle, and result in further involvement by the State until it begins to apply the Shari’ah to non-Muslims or to Muslims against their will, resulting in a deprivation of religious liberties. This argument is also insufficient. Many Islamic states, such as the Ottoman Empire, had a multiplicity of sects and schools of law within the borders, yet this did not impede on the implementation of justice. Moreover, such commentators fail to make a distinction between the Faqih and the Qadhi. The faqih is bound to a school of law whereas the Qadhi is not. Imam Mawardi, the author of Al-Ahkam as-Sultaniyyah, a classical primer on Sunni political theory, wrote:

“A Shafi’ite may appoint to a judgeship a follower of Abu Hanifa’s doctrine, for a judge has the right to use personal opinion in his rulings,a nd does not have to follow the precedent of members of his own school in problems or judgments. If he is a Shafi’ite he does not have to implement the pronouncements of al-Shafi’i unless he is led to accept them by his own effort, but if his endeavors lead him to adopt Abu Hanifa’s view, then he should do so. Some jurists have forbidden a follower of a certain doctrine to rule according to another, thus preventing a Shafi’ite from adopting Abu Hanifa’s viewpoint, and a Hanafite from ruling in accordance with al-Shafi’i’s doctrine if led to it by his independent thinking, on the ground that it might expose him to suspicion or favouritism in the cases and sentences he is charged with, and that if he rules according to a single doctrine to the exclusion of every other, he would be less subject to suspicion and more acceptable to the contending parties. Even though good policy might call for that, however, the principles of religious law do not impose it. Blind imitation is prohibited and individual effort is encouraged by them, so that if a judge’s ruling is enforced in a certain case and a similar case comes up at a later time, he should think of it again and pass the verdict arrived at this by new effort, even if it differed from the previous one passed by himself. Ruling in cases of inheritance, Umar, may God approve of him, viewed certain relatives as legitimate recipient of shares one year but excluded them in another year. When it was observed to him that he had not ruled the same way the previous year, he said, “That was the way we judged then, and this is the way we judge now.”

- (p 77 of “Al Ahkam as-Sultaniyyah”) -

Once a cleric would be decided to the position of arbitrator which, in reality, would be to serve in a quasi-Qadhi function, he would not be bound by any particular school of law, but would seek to arbitrate the legal conflict according to his judgment. Thus, the concern about which school of law would govern and whether it would conflict with the school of one of the parties is entirely unfounded. Moreover, it should be kept in mind that the parties themselves have consented to such arbitration
and, in all likelihood, would have agreed to an arbitrator and his school of law or theology prior to the unfolding of a conflict.

What this event shows is that some Europeans have an unfounded fear of Islam and Islamic law and are promoting the disparate treatment of Muslims. Some Westerners would violently oppose the implementation of the Shari’ah, even if it was done so through entirely democratic means. In other words, even if in a country such as America, where laws were passed using the proper procedures to amend the Constitution to apply certain integrals of the Shari’ah, most people would still violently oppose the implementation of the Shari’ah. This exposes a fundamental contradiction in democratic theory which is, namely, that the will of the people as manifested by the state constructed upon the political involvement of the majority with protection for minority rights. If such a system was to implement the Shari’ah upon Muslims and leave secular law upon minorities, most Westerners would fight to death to overthrow such a system, in spite of it being entirely legal and peaceful.

. . . and therein the most fundamental contradiction of Western civilization is exposed. If Muslims were to use violence to defend their way of life, it would be condemned as terrorism and any proponents of such a method would be subject to gross human rights abuses; if any nations behaved in this manner, international law would be violated to prevent such a system.

Why is it acceptable for Western states to violently impose democratization upon the Muslim world while it is unacceptable for Muslims to peaceably implement the Shari’ah upon themselves in Western states using democratic processes?

Undoubtedly, some will respond to this question by hurriedly rejecting the assertion that Muslims want Shari’ah. However, I have extensively rebutted such arguments in my post “The Ballot or the Bullet: Islamists and Democracy.”

A recent poll conducted in the four most populous Muslim countries indicated that Muslims want Shari’ah. Moreover, in elections where Islamists are given fair opportunities to compete against non-Shari’ah proponents, they have done extremely successful. The movement towards Shari’ah in most Muslim countries utilizes existing legal norms and democratic processes.

The movement towards “democratization” seems to have been done in the opposite manner, through force by either military dictatorships or foreign interventions. Irrespective of Turkey, where the military engages in a coup de ‘etat every time the word “Shari’ah” is uttered, other “democratic” Muslim states that do not have strong Islamist movements were forced to democratize by the West. For example, in Iraq, the US engaged in a plethora of lies to justify its breaking of international law when it invaded the sovereign nation of Iraq and forcibly changed its political system, just like it had done to Germany and Japan after World War II. A lot of groups, both Sunni and Shia, boycotted elections because they didn’t feel it was valid. There is also the fact that the Iraqi people wanted to insert a clause into the Iraqi constitution regarding the Shari’ah, but it was rejected by Paul Bremer who was not an elected representative of either the American or Iraqi people. What about the Muslims in Afghanistan? Can we truly say that they don’t want Shari’ah when their Supreme Court in the purportedly legitimate government of Hamid Karzai wanted to implement a ruling against an apostate, but their judicial independence was infringed upon by Hamid Karzai after immense international pressure?
If it is acceptable for Westerners to defend the democratic nature of their states through violence and that is called “patriotism”, why is that when Muslims, or any other people, seek to preserve their traditional way of life, it is condemned as “terrorism” and the human rights of such people are denied? What is more barbaric? Lopping off a few hands, or killing over 500,00 Iraqi babies during economic sanctions, humiliating the Palestinians by promising them concessions through a fraudulent peace process all the while Israelis are building settlements in violation of virtually every single agreement ever made, killing Afghani civilians, overthrowing the UIC which brought peace to Somalia after over a decade of civil war, etc.

The point is not that each civilization to berate one another, but to realize that they have similar desires and wishes and the only way for people to pursue their desires is by not infringing upon the rights of others. If Westerners do not want to tolerate the Shari’ah in their lands, then they should tolerate it in the Muslim world. Similarly, if Muslims do not want democracy in their lands, they should be respectful of it in the West. Live and let live.

Update: Muslim Matters has done an excellent job compiling various Muslim and non-Muslim bloggers who take a more meaningful non-rhetorical look into this issue.

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