Defending the Sharia

Sadakat Kadri

Arguments about Islam are liable to generate more heat than light wherever they take place, but one of the unlikelier hotspots over the last year was the state of Oklahoma. In 2010, a group of its Republican lawmakers proposed that local courts be forbidden from taking account of the sharia, and 70 per cent of voters backed a draft constitutional amendment to that effect. The law, known to supporters as the ‘Save our State’ amendment, was justified as a ‘pre-emptive strike’ against an imminent ‘onslaught’. Similar initiatives were soon spawning elsewhere, and by late 2011 they had been tabled in 24 legislatures, from Alabama to Wyoming.

On 10 January, however, three federal judges ruled on a challenge brought by Muneer Awad – one of the 30,000 or so Muslims in Oklahoma (population 3,751,351) – and found that the amendment violated the US constitution. Its provisions, they held, fell foul of the principle that governments must avoid excessive entanglement with religion. And though their decision directly affects Oklahoma alone, it all but confirms that the other pending bills are unconstitutional.

The unanimous opinion could hardly have been more forthright. The court roundly rejected a claim that the amendment had caused the plaintiff no legal harm, and gave short shrift to an attempt to portray the measure as a religiously neutral regulation. Instead, the judges found it to be overtly discriminatory, which meant that its defenders had to prove a ‘compelling state interest’ for its enactment – and they couldn’t.

[They] do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted... that they did not know of even a single instance where an Oklahoma court had applied Sharia law... let alone that such applications or uses had resulted in concrete problems in Oklahoma.

The rise and fall of the Save our State amendment illustrates the continuing potency of anti-Islamic sentiment in the United States. In the name of confronting a scenario that was palpably fantastic, Oklahoma legislators were able to galvanise more than two-thirds of voters to cast ballots against the presumed interests of a minuscule and law-abiding religious minority. Their success then unleashed similarly intolerant campaigns across the nation, all of which drew on a vague sense that US Muslims were somehow in cahoots with the nation’s post-9/11 enemies. And yet, at the same time, the appeal court decision illustrates that the prejudice has very definite limits: the risk of electorally sanctioned repression was reined in by a reassertion of straightforwardly secular constitutional principles.

Perhaps most important, the ruling is a reminder that hostility to ‘the sharia’ is not the same as opposition to extremist Muslims. To the devout, the word has otherworldly connotations – originally a term used by desert Arabs to describe a path to water, it means the route towards eternal salvation – and its precepts are as extensive as that suggests. They guide a believer from cradle to grave: one of Awad’s complaints about the Save our State amendment was that it might stop a probate judge from acknowledging references to the sharia in his will. The fact that Muslims profess to believe in a path ordained by God bears no significant relation to the practical risks posed by extremism. Anyone genuinely concerned by those risks ought to challenge specific interpretations of Islamic law that lead to acts of violence or injustice, not every expression of religious belief that Muslims call ‘the sharia’.

This is as true in the United Kingdom as it is in the US. Opposition to the sharia has become increasingly common here in recent years, and though its opponents think their repugnance is rational, the animosity has a very dark side. Just as some American conservatives have been nudged since 9/11 towards an undifferentiated credophobia, anger at Muslim extremists has poisoned debate in Britain and promoted a generalised contempt towards Islam. The US court’s decision is a robust affirmation that the American constitution does not need institutionalised discrimination to survive. Anyone who feels instinctively opposed to the sharia, assuming it to be a reflection of their own worst fears, could usefully take note.


  • 20 January 2012 at 3:53pm
    outofdate says:
    I wonder whether this surfeit of definite articles helps the cause any, as in The Passsion of the Christ. It does endow it with a the certain the aura, I suppose, but if you wanted to be half-serious about it: we should be wary of positing a mystically-minded 'devout' who have never existed and are unlikely ever to exist except in the apologist's fantasies.

    Sharia is as sharia -- well -- does for the devout in the unfortunate communities where some halfwit Saudi-trained 'scholar' is considered the final authority. And given where the money is, that's more of them every day.

    • 21 January 2012 at 12:52pm
      Higgs Boatswain says: @ outofdate
      The definite article in refernce to "the path" has good authority, both in English and Arabic. "Shari'a" is in fact not the word to decribe the messy and more-or-less corrupt realities of jurisprudence and on the ground, which would be "fiqh" in Arabic. "Shari'a" is a fairly abstract Qur'anic concept, though I suspect this didn't bother the lawmakers of Oklahoma nor the Archbishop of Canterbury's critics in the British press.

      If you want to be half-serious about it - which is perhaps more than this comment deserves - one is surprised to learn that "the mystically-minded devout" has never existed and is never likely to exist (in Islam? In any religion at all? Ever?). In fact, "mysticism" has historically been one of the two dominant intellectual strands of Islam, the other being "shari'a" (the fact that both these traditions evade simple definitions makes it tempting to keep them in scare-quotes). The Saudi halfwits (and we should be wary about positing a Saudi halfwit who has never existed, etc.) are very keen to drive a wedge between these two traditions, as are some Western Orientalists who would prefer a dispensation of Grace to one of the Law. In reality, though, "the" mainstream tradition of orthodox Sunni Islam has never seen much conflict between them. It is the Salafis who are out of step with the tradition they claim to revive.

    • 23 January 2012 at 4:00am
      outofdate says: @ Higgs Boatswain
      In the sense that 'the devout' here is plural and wishes to be understood as 'a vast majority of believers through the ages, as opposed to a handful of nasty Wahhabis.' That strikes me a pie-in the-sky. I'm aware of the mystical tradition -- in which we’re told even the Ayatollah Khomeini's poetry is to be understood -- but a rarefied intellectual tradition is one thing and everyday religious belief quite another.

      Most of the devout, in Islam or any other faith, are saddled with their religion at birth and short of renouncing it have to come to some sort of arrangement with it; it's like learning to live with diabetes really, or a preternatural anus. This is best done with minimum effort so you can get on with more interesting business, like running your shop or whatever. None but the deranged want to think about religion all the time. It's here that 'guidance' comes in. And while quite a lot of educated Muslims freely and briskly exercise ijtihad or discretion in relation to any prescriptions, many others not only lack the wherewithal but are told -- by the real existing Saudi-trained halfwits who exercise that guidance -- that they mustn't.

      See, any claim as to what sharia, or Shari'a, really is sounds like eyewash. If a concept is as capacious as that, it becomes pretty much meaningless, and the only way to try and understand it is to look at how it overwhelmingly manifests itself, here, now: sharia is as sharia does. Sadakat Kadri is conflating the issues too: his book is a history of Shari'a law, i.e. fiqh, but here he seems unsure whether he's defending the no doubt wonderful and diverse intellectual history surrounding Shari'a or the no doubt equally weird and wonderful history of fiqh.

      As it happens, early fiqh is by and large the most sensible and humane body of legal opinions of its time (it's also excruciatingly dull, but he is a lawyer); but that's neither here nor there. It's the Hanbali school put through the halfwit grinder that most people now have to contend with. ‘Have to’: your Indonesian fisherman can't just move villages, and if he did he'd just find another halfwit there. The Salafis/Wahhabis are no more 'out of step' than any other school that might at one time or another have been dominant. They are what there is.

      In other words, this is an argument within Islam that’s meaningless in the context of Western legislation. The issue in Oklahoma was simply that the petitioners were idiots and there was no need for legislation banning a contingency that wasn’t going to arise. What makes me suspicious of the good faith of this post is that it elevates it into a defence of ‘sharia’ – in all the senses it slyly embraces even while pretending to keep them separate.

      (Of course I take your point that what we Daily Mail readers call 'sharia' is short for 'sharia law' -- and if christos means 'anointed' then 'the Christ' also has some authority. The point is English usage. It's really no use struggling against usage; it just sounds whimsical, or as in this case like special pleading.)