To what extent is sharia compatible with Western law? Dr. Rowan Williams, the Archbishop of Canterbury, and Britain’s Supreme Court president Lord Phillips created a stir in 2008 by proposing that British courts might permit the application of Muslim religious law. Numerous American scholars have suggested that sharia might have an application to family law. All the proponents of importing sharia into the West cite the example of Jewish religious law, Halakha, which has coexisted seamlessly with Western law for two thousand years.In a “Spengler” essay published today at Asia Times Online, titled “Wife-beating, Sharia,and Western law,” I characterize these proposals as “monstrous.” Sharia, I argue, stems from a radically different, and indeed antithetical, concept of the relation of the individual to the state.
. . . snip . . .More than the Koran’s sanction of wife-beating, the legal grounds on which the Koran sanctions it reveals an impassable gulf between Islamic and Western law. The sovereign grants inalienable rights to every individual in Western society, of which protection from violence is foremost. Every individual stands in direct relation to the state, which wields a monopoly of violence.Islam’s legal system is radically different: the father is a “governor” or “administrator” of the family, that is, a little sovereign within his domestic realm, with the right to employ violence to control his wife and children. That is the self-understanding of modern Islam spelled out by Muslim-American scholars – and it is incompatible with the Western concept of human rights.
The practice of wife-beating, which is found in Muslimcommunities in Western countries, is embedded too profoundly in sharia law to be extracted. Nowhere to my knowledge has a Muslim religious authority of standing repudiated wife-beating as specified in Surah 4:32 of the Koran, for to do so would undermine the foundations of Muslim society.
By extension, the power of the little sovereign of the family can include the killing of wayward wives and female relations. Execution for domestic crimes, often called “honor killing”, is not mentioned in the Koran, but the practice is so widespread in Muslim countries – the United Nations Population Fund estimates an annual toll of 5,000 – that it is recognized in what we might term Islamic common law.
Muslim courts either do not prosecute so-called honor killings, or prosecute them more leniently than other crimes. Article 340 of Jordan’s penal code states, “He who discovers his wife or one of his female relatives committing adultery and kills, wounds, or injures one of them, is exempted from any penalty.” Syria imposes only a two-year prison sentence for such killings. Pakistan forbids them but rarely punishes them.
The comparison with Halakha is entirely specious, I argue:
Jewish law proceeds from God’s Covenant with each member of the Jewish people. The notion of an intermediate sovereign, such as Islam’s “governor” of the family, is inconceivable in Jewish law, for there is only one Sovereign, the King of Kings. The powers of the earthly sovereign derive from God and are limited by God’s laws. The American founding notion of “inalienable rights” stems from the Hebrew concept of covenant: a grant of rights implies a Grantor, and an irreversible grant implies a God who limits his own sovereignty in covenant with mankind.
From the vantage point of Islam, the idea that God might limit his own powers by making an eternal covenant with human beings is unthinkable, for Allah is absolutely transcendent, and unconditionally omnipotent. From a Hebrew, and later Christian standpoint, the powers of the earthly sovereign are limited by God’s law, which irreversibly grants rights to every human being. Islam can make no sense of such self-limitation of the divine sovereign, and thus never has produced a temporal political system subject to constitutional limitations.
As an afterthought: this is precisely what Rosenzweig meant when he characterized Islam as “pagan,” as I wrote in a 2007 essay for First Things.
In the thoroughly organized State, the State and the individual do not stand in the relation of a whole to a part. Instead, the state is the All, from which the power flows through the limbs of the individual. Everyone has his determined place, and, to the extent that he fulfills it, belongs to the All of the State. . . . The individual of antiquity does not lose himself in society in order to find himself, but rather in order to construct it; he himself disappears. The well-known difference between the ancient and all modern concepts of democracy rightly arise from this. It is clear from this why antiquity never developed the concept of representative democracy. Only a body can have organs; a building has only parts.
Read the whole post here. The entire article at Asia Times Online is available here.
The Muslim concept of the State is not that different from the Fascist concept of the State in its totalitarianism. The Jewish-Christian view is that there ought to be limited government and a division of powers. This goes all the way back to the division of powers in prophets, kings and priests in ancient Israel and it is expressed in the Medieval doctrine of the Two Swords. We are members of both the State and the Church and therefore the claim of the State on us can never be total. We must render to Caesar only what belongs to Caesar and be sure to rend to God what is God's.
I think the reference to Islam as "pagan" is very interesting. Islam is very different from the other two Abrahamic religions and has more of the spirit of pre-Christian Arabic culture about it than it does Jewish-Christian culture. The big push today to see Islam as closely related to Judaism and Christianity may be mis-guided and doomed to failure.
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