Washington Report on Middle East Affairs, November 2011, Pages 40-41
New York City and Tri-State News
New York Law School Holds Conference on Shariah in America
By Jane Adas
NEW YORK LAW School hosted an important symposium Aug. 26 on shariah in America. The topic is timely, even urgent, given that half our states have anti-shariah laws in their legislative pipelines. Yet few Americans have even a vague idea of what shariah means.
As Frank Vogel, who founded Harvard Law School's Islamic Legal Studies Program, explained, shariah is God's law, derived from the Qur'an and sunnah, the practice of Prophet Mohammed. Islamic law evolved from fiqh, which is how the Qur'an and sunnah are interpreted. Fiqh guides actions rather than beliefs—and, being interpretation, is human and fallible. By the 13th century, four schools of Sunni and one of Shi'i interpretation had developed. Because there are several schools of thought, Vogel noted, there is much tolerance of each other's views and choice as to which school to follow.
The counterpart of shariah in Judaism is halacha. Michael Broyde, professor of law at Emory University Law School and a member of Beth Din of America, the largest Jewish law court system in the country, spoke about Jewish law. For a thousand years, from around 900 AD until the Holocaust, Broyde said, Jewish law courts served a vibrant commercial role in Europe. With their common religion, language (Yiddish), and court system, Jews were able to cross boundaries that inhibited international commerce. In America, however, with its secular legal system that did not discriminate, there was a lack of interest in establishing Jewish law courts. The first attempt did not take place until the 1930s, and it failed. Broyde described the second attempt in 1962 as no great success until it was revised in 1995, a process in which Broyde himself was involved. There are now Jewish arbitration courts throughout the U.S., and Broyde proudly pointed out that their decisions have not yet been overturned in civil courts.
Based on what Beth Din of America has learned from its "30-year experiment" of adapting Jewish law to the U.S. reality, Broyde offered advice for practitioners of Islamic law on how to establish a voluntary but binding arbitration process through Islamic courts. Beth Din produced detailed and neutral rules of procedure "in lawyers' English" rather than referencing the Torah or Maimonides, he said, and created an appellate process not available in traditional Jewish law. Broyde emphasized that Beth Din arbitrators must be "dual-trained" in both Jewish law and in the American legal system. He observed that Jewish law courts have served a stabilizing function within the American Jewish community.
Rather than refer to religious versus secular law, Muhammad Fadel of the University of Toronto's Faculty of Law said he prefers to think in terms of jurist's law, of which fiqh is one example, and state law. Islamic law recognizes both, he pointed out, with state law always valid provided it is consistent with the public good and does not command sin. Fadel observed that issues that are a source of conflict between the two, such as polygamous marriage, often involve rights rather than duties—no one is obligated to take a second wife. Because Islam distinguishes between theological doctrines, which are "set in stone," and legal doctrines, which are not, Fadel said that Islamic law is therefore subject to reform. He suggested that the growing fear of shariah and hostility to Muslims might be due to the concept of ummah (the faith community of Islam), meaning that some Islamophobes perceive Muslims' transnational ties of solidarity as inconsistent with loyalty to the nation-state. For such people, Fadel concluded, it is more important to understand the U.S. Constitution, especially the First Amendment, rather than the complexities of Islamic law.
Asifa Quraishi of the University of Wisconsin Law School discussed the positives and negatives of shariah law with regard to issues of family law. On the one hand, she noted, an Islamic marriage contract builds in financial independence for a woman even if she chooses to stay home, and her property is exclusively her own. On the other hand, men have unilateral access to divorce, and the laws governing inheritance and child custody are unequal. Quraishi advocates promoting the evolution of a new fiqh,one which is authentically Muslim but compatible with U.S. legal and cultural practices. For now, she questions what the shariah bans hope to accomplish, other than further alienation.
Sadiq Reza teaches at New York Law School and hosted the symposium. He argued that some practices that people associate with Islam, such as honor killing and female genital cutting, do not originate in Islam and are not limited to Islam. He acknowledged that there are unpleasant doctrines in Islam, such as disallowing the possibility of marital rape, but pointed out that this was also true in most states in the U.S. until the 1970s. The problems, he concluded, are not unique to Muslim society and can be overcome by re-interpreting scripture, as Muslim scholar Tariq Ramadan called for in 2005. Sadiq said he has found no interest whatsoever among American Muslims in implementing shariah in the U.S. and considers the fear of it exaggerated.
By coincidence, on the day of the symposium the Center for American Progress released a report entitled Fear, Inc. The Roots of the Islamophobia Network in America (see p. 18). The report names seven foundations that have given more than $40 million over the past decade to anti-Islamic think tanks run by self-proclaimed non-Muslim experts on shariah: Frank Gaffney, David Yerushalmi, Daniel Pipes, Robert Spencer and Steven Emerson. Their mischaracterization of shariah has been picked up by some on the religious right—Pat Robertson, John Hagee, Ralph Reed and Franklin Graham—and amplified by certain media outlets such as the Fox News Channel, the David Horowitz Freedom Center, Pamela Geller's blog "Atlas Shrugs," and the Reverend Moon-owned Washington Times. According to the report, "This small network of people is driving the national and global debates that have real consequences on the public dialogue and on American Muslims." Fear, Inc., which can be read at <www.americanprogress.org>, appears to validate New Jersey Gov. Chris Christie's remarks at an Aug. 3 press conference responding to critics of his decision to appoint a Muslim judge to the state Supreme Court: "This shariah law business is crap. It's just crazy. And I'm tired of dealing with the crazies."
Jane Adas is a free-lance writer based in the New York City metropolitan area.
