silent but deadly

The title is meant as a tongue in cheek reference to the Florida legislature's odd entry in the apparent national race to pass anti-sharia legislation. Florida's anti-Sharia bill is unusual in that it actually makes no reference to the Sharia or Islam or Islamic concepts at all. Instead Florida's SB 1294 is about the "application of foreign law". And the bill's language goes on to explain that:

the term “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.

And then the bill goes on to say that rulings, arbitration decisions, contractual obligations etc. based on foreign law can't be enforced:

if the law, legal code, or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, which would not grant the parties the same fundamental liberties, rights, and privileges granted under the State Constitution and the Constitution of the United States.

The last part of the bill explains that it applies only to "natural persons" and "does not apply to a corporation, partnership, or other form of business association".

To be honest, I'm not absolutely certain how I feel about the bill since I don't have the legal training to determine exactly how it would be applied.

The bill seems limited to cases which have an international component, and if "sharia" is interpreted as "the legal system of this or that Muslim country" then I'm tempted to say "fine, I don't get my interpretations of the sharia from Iran / Saudi Arabia /Afghanistan etc. anyway." What I'm still unclear on is whether SB 1294 would also void out contracts and decisions involving U.S. citizen which are not based on foreign law per se (e.g. the laws of Saudi Arabia, Pakistan, Iran, etc.) but are based on religious rulings (e.g. The Fiqh Council of North America, ones local imam, etc.)

Since the bill doesn't mention Islam at all, it will be interesting to see how it will be applied to Jewish arbitration bodies or cases where American law butts up against Israeli law and the laws of other non-Muslim countries (which is likely to be an issue in Florida generally, and Miami in particular).

A few Christians would be surprised to learn that the Bible itself also seems to have little faith in secular legal systems:

When one of you has a grievance against a brother, does he dare go to law before the unrighteous instead of the saints? Do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels? How much more, matters pertaining to this life! If then you have such cases, why do you lay them before those who are least esteemed by the church? I say this to your shame. Can it be that there is no man among you wise enough to decide between members of the brotherhood, but brother goes to law against brother, and that before unbelievers?
(1 Corinthians 6:1-6)

And as a result, there are also Christian arbitration organizations which operate parallel to the US court system.

What I find most ironic is that it seems many of these anti-sharia efforts are backed by the Religious (Christian) Right while the same Religious Right are perfectly willing to impose their own opinions on abortion, homosexuality, US foreign policy (especially towards Israel) and social justice on the rest of the US population, even those who don't share their convictions. It raises the possibility that the anti-sharia movement might end up secularizing American society in ways that the Islamophobes would find constraining as well.

Past posts:
"lord i've really been real stressed/ down and out / losing ground..."
oklahoma and the sharia

Miami Herald: Republican lawmakers are taking aim at Islamic Sharia law, but they don’t specifically want to talk about it
Huffington Post: Florida State Lawmakers Push Bill That Would Ban Sharia Law

"lord i've really been real stressed/ down and out / losing ground..."

For those who still haven't heard, a bill has been introduced in the Tennessee legislature, sponsored by Republican Sen. Bill Ketron of Murfreesboro, which would basically make it a felony to practice Islam in Tennessee. The bill was written by lawyer David Yerushalmi, a white supremacist Jew who also hates Muslims and Black people. A link to the bill is provided below. Read it yourself if you have time.

Here are some of the highlights:

This bill defines "sharia" as the set of rules, precepts, instructions, or edicts which are said to emanate directly or indirectly from the god of Allah or the prophet Mohammed and which include directly or indirectly the encouragement of any person to support the abrogation, destruction, or violation of the United States or Tennessee Constitutions, or the destruction of the national existence of the United States or the sovereignty of this state, and which includes among other methods to achieve these ends, the likely use of imminent violence.

A couple of things: Since Christian Arabs also use the term "Allah" for God, I wonder if one could argue that Arab churches are also "sharia organizations"? Also, depending on how you read "abrogation" this seems to include even peaceful attempts to amend (abrogate) the constitutions of Tennessee or the US. Also, since a constitution isn't a physical object in the first place, what does it actually mean to cause its "destruction"? And since the US Constitution is a basic text for detailing the structure of government bodies and agents, is it something which individuals can violate? I mean, I have a sense of what it may mean for the President, or Congress or the Supreme Court to violate the Constitution, but I'm honestly not sure what it means for Joe or Zayd down the street to do so. In any case, in spite of the difficulties with the above definition, I can almost understand a bill which singled out "bad Muslims" from "good Muslims" but the definition in the bill actually continues:

Under this bill, any rule, precept, instruction, or edict arising directly from the extant rulings of any of the authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafi'i, Hanbali, Ja'afariya, or Salafi, as those terms are used by sharia adherents, is prima facie sharia without any further evidentiary showing.

In other words, the overwhelming majority of mainstream, traditional Muslims (both Sunni and Shia) are going to be lumped together with any Muslims who are trying to destroy "the national existence of the United States" without any specific evidence of violent or criminal behavior.

The bill then goes on to criminalize "sharia organizations" (basically, any two Muslims) and makes it a felony to give such "groups" material support.

It would be hard for me to overstate just how stupid and ill-conceived I think this bill is. I would say that the bill is retarded if it weren't so insulting to retarded people.

- The bill is clearly a violation of the first amendment of the U.S. Constitution. What part of "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" don't they understand?

- Even if it wasn't such a literal violation of the bill of rights, trying to criminalize religious activity is anti-democratic.

- Even if non-Muslims are scared of having the shariah imposed on them without their consent, again, that pesky First Amendment already prevents that from happening making an anti-shariah bill unnecessary.

-The alleged reason for the anti-sharia bill is to protect US citizens from "homegrown" terrorism. But as the folks at Loonwatch have most ably pointed out, all terrorists are Muslims... except for the 94% that aren't. If we are really serious about protecting the homeland, then we need to look at the causes of violence regardless of what flag it may fly under. (I hope that the IRA supporting Rep. King is listening.)

-A question: I wonder how many of these anti-sharia fear-mongers are Christians who are willing to use the government to impose their view on abortion, homosexuality, or US Middle Eastern policy on citizens who don't share their view. Just curious.

- Even if there was some honest (but ill-conceived) concern that Muslims would magically take over the country and adulterers would suddenly be stoned (with rocks) on the White House lawn or women would suddenly lose the right to drive to work (or drive... or work), there are more constructive ways to handle those issues without demonizing Muslims and conflicting with the First Amendment. By all means, strengthen laws against spousal abuse or other forms of domestic violence across the board. Pass the ERA. Strengthen the rights of criminals against cruel and unusual punishment. If you think "they" are the enemy the "defeat" them by being the best "you" that you know how to be.

Text of SB 1028
Summary of B 1028 from State Congressional Website
Loonwatch: Bill Would Make it Illegal to Be Muslim in Tennessee
The American Muslim: David Yerushalmi and (in)SANE
Huffington Post: Tennessee Considers Bill That Makes Following Shariah A Felony

islam and the secular state (part two)

So I finally finished reading Abdullahi Ahmed An-Naim's Islam and the Secular State: Negotiating the Future of Shari'a. To be honest, I was a little disappointed with the book. That isn't to say that An-Naim's ideas weren't provocative or intriguing or worth further contemplation. But I was more impressed by him as a speaker and as a thinker (based on various clips of lectures and interviews available online) than as a writer per se. In the earlier chapters of the book he tended to sound a bit repetitive and I found him a little abstract for my taste.

But he does get particularly eloquent when he is laying out his central premise in the very last chapter:

As a Muslim, I need a secular state in order to live in accordance with Shari'a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim. Belief in Islam, or any other religion, logically requires the possibility of disbelief, because belief has no value if it is coerced. If I am unable to disbelieve, I will not be able to believe. Maintaining institutional separation between Islam and the state while regulating the permanent connection of Islam and politics is a necessary condition for achieving the positive role of Shari'a now and in the future.

In many ways, the above paragraph is the heart of the book and the rest of the text is an elaboration and an unpacking of his words here.

I almost want to say that I wish he were more opinionated. I was left wondering how he concretely imagines the "separation of Islam and the state" on the one hand, and the "permanent connection of Islam and politics" on the other. He was at his most engaging when describing the interplay between Islam, the state and politics in particular settings; the caliphate of Abu Bakr (ra) and then more recently in India, Turkey and Indonesia. But I would have liked to hear him share his views on Islam and secularism in other locations; for example, Saudi Arabia, Iran, France, the US and especially his own native Sudan. I also would have liked to see him engage a bit more with the religious arguments of those who advocate for some form of "Islamic government". Maybe that's for the next book?

islam and the secular state
the postcolonial condition of muslim states
conversations with history: abdullahi ahmed an-naim

oklahoma and the sharia

As you may have heard, 70% of Oklahoma voters recently approved a measure to ban the use of sharia law in Oklahoma courts. I've been thinking about this for a couple of days now and I'm still not sure what the measure really means.

Most of the examples which come to mind when I even try to imagine what "applying the sharia" would mean in the U.S. context are either things which are already clearly prohibited by the First Amendment or things which are clearly protected by the First Amendment. So the Oklahoma referendum fundamentally seems either redundant or unconstitutional.

The U.S. Constitution already protects non-Muslim from having "the sharia" imposed on them, while Muslims should be free to follow the sharia in matters such as marriage, inheritance, business contracts and financial arrangements. And if the terms of such agreements were drawn up in a sufficiently clear manner, why couldn't or shouldn't they be adjudicated by a U.S. court? In fact, Jews and Christians in the US already have established several institutions which allow for alternative conflict resolution according to their own religious principles but with a certain amoutn of legal validity as well. Why couldn't Muslims set up similar "courts" in the U.S.? I've never been to law school but I find it hard to imagine that a referendum which actually singles out a specific religion for special exclusion could pass constitutional muster.


Here is what appeared on the ballot in Oklahoma:

STATE QUESTION NO. 755 LEGISLATIVE REFERENDUM NO. 355
This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

So in addition to the sharia, the Oklahoma courts apparently can not consider the Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
SHALL THE PROPOSAL BE APPROVED?
FOR THE PROPOSAL — YES
AGAINST THE PROPOSAL — NO

The only thing clear about the law is that it loudly says: "We hate Muslims and want to give them a hard time."

But even apart from its impact on Muslims, it seems like the proposal opens up a whole can of worms. It doesn't just try to exclude the use of the shaira but international law as well. Maybe they can start building Black site prisons in Oklahoma to replace Camp X-Ray in Guantanamo since the Geneva Convention apparently doesn't apply there? Or maybe Oklahoma will become a resort for international criminals if extradition treaties are no longer valid there? How does the referendum effect Indian casinos if Oklahoma courts refuse to respect tribal law?

CAIR has already made some legal moves against the referendum (An initial hearing is set for today.) InshaAllah sooner heads will prevail.

Ballotpedia: Oklahoma "Sharia Law Amendment", State Question 755 (2010)
Huff Post: Caliphate on the Range? The Shariah Precedent in American Courts
The American Muslim: Islamic Sharia and Jewish Halakha Arbitration Courts - updated 5/21/10

muslims, islamic law and public policy in the united states

Muslims, Islamic Law and Public Policy in the United States By Sherman A. Jackson is an interesting discussion of the duality and double-consciousness which comes with being a Muslim living in a non-Muslim country, specifically how can one reconcile the demands of a "traditional" rulings of Sunni fiqh with the living in the U.S. under a secular constitution.

conversations with history: abdullahi ahmed an-naim

An interesting hour of conversation between Abdullah Ahmed An-Naim and Harry Kreisler on the subject of Islam and the secular state. I still haven't made up my mind about An-Naim. I have too many books on my reading list at the moment and haven't gotten to his yet. However his website is pretty well-stocked with articles and video clips expressing his ideas.

the end of the covenant

God's Covenant, Judaism and Interfaith Marriage by Paul Golin starts off as a pretty unsurprising review of Jewish views on inter-religious marriage on the occasion of the Chelsea Clinton and Marc Mezvinsky nuptuals. But I was definitely surprised by the second half the article which started to swim in much deeper waters:

In the 1970s, when radical modern-Orthodox thinker Rabbi Irving "Yitz" Greenberg grappled with the full implications of the Holocaust, he concluded that God's withdrawal from earthly affairs and failure to protect His chosen people meant, quite dramatically, that "the covenant was broken." However, Rabbi Greenberg suggested that "the Jewish people was so in love with the dream of redemption that it volunteered to carry on with its mission." And in fact those who took up the "voluntary covenant," as he called it, were even greater than those who acted "only out of command."

Personally I found the above intriguing for a number of reasons. First, while many (but not necessarily all) Christians, Muslims, Bahais, etc. might readily admit that God's covenant with the Jewish people is no longer in effect, it seems unusual (perhaps even contradictory) to find an Orthodox Jew making that claim.

Secondly, as horrible as the Holocaust was it really more theologically significant than other great tragedies in Jewish history like the destruction of the First Temple and the Babylonian Captivity, or the destruction of the Second Temple and the subsequent diaspora?

Thirdly, the quote serves as a cautionary "tale", the article makes me wonder if Muslims attitudes towards the sharia will ever become comparable to Jewish attitudes towards the halakhah?

shariah: between two popes

Sharî'ah: Between Two Popes by Sherman Abdul-Hakim Jackson looks at some interesting differences in how the Catholic and Coptic popes approach the Shariah. Pope Benedict XVI, viewing the issue through the lens of modern Western notions of the state and assumes the shariah will impose a uniform law without any accommodation for religious difference. On the other hand, Pope Shanoudah, understanding that the shariah actually allows for religious minorities to govern themselves according to their own rules, actually appealed to the shariah in order to enforce Coptic principles on Coptic couples.

sausage and the law

Mark Twain once said, "Those who respect the law and love sausage should watch neither being made." But as a Muslim, I would actually argue that he was wrong on both counts. First, anyone who eats (pork) sausage should find out exactly what they are putting into their bodies with a quickness.

But in terms of the law (at least the shariah) I've had an interesting time trying to learn more about usul al-fiqh. Right now I'm in the middle of Principles of Islamic Jurisprudence by M.H. Kamali. Unfortunately I was only able to find it free online after ordering it on Amazon. The book goes into a fair amount of detail on how the ulema across different schools of thought derive legal rulings from the Quran and sunnah and the chapters are nicely organized according to various sources or principles. I found it refreshing because it gave me respect for some of the logical and linguistic nuance which goes into harmonizing different texts. It was also comforting to see that local customs, public interest, and avoiding harm are also considered in the shariah and allow it to be more flexible than many people realize.

In case you don't have time to read a 300 plus something book on usul al-fiqh, The Fundamental Principles of Imam Malik's Fiqh from Muhammad Abu Zahrah is organized in much the same way as Kamali's work except it is much more abbreviated and emphasizes the Maliki school's opinion.

Some other interesting pages:
Maxims of Islamic Jurisprudence from Al Majalla (an Ottoman law Manual) gives 100 different legal aphorisms which guide legal reasoning, from a Hanafi perspective.

The blog, Scholar's Pen: The Tools of a Mujtahid- A glance at the Hanafi Methodology gives a brief summary of some of the distinctive principles of the Hanafi school.

While The Principles and Codes of Law of Hanafi Fiqh by Hadhrat Moulana Ashraf Ali Thaanwi is another large book, full of untranslated legal terms and is much less clear than Kamali's work.In fact, these last three sites are all a bit technical and would make much more sense after reading the first two pieces.

Planet Grenada: differences between schools

islam and homosexuality

Over at the Goatmilk blog there has been an interesting set of discussions on homosexuality and Islam. The original articles are framed in terms of whether American Muslims should support the right of same sex marriage in the US. Mahdi Ahmad and Sister A take the "No" position while Sabir Ibrahim and Michael Muhammad Knight argue "Yes." The negative argument emphasizes the sinfulness of homosexual acts according to Islamic principles. The more nuanced affirmative argument says that yes, homosexual acts are sinful but the US isn't run according to the Shariah and Muslims should embrace a model of American society which allows space for many different groups (racial / political / ethnic / religious / sexual) have a right to co-exist.

What I found surprising is that much of the discussion in the comments section wasn't about the above arguments as much as about whether homosexual acts were really prohibited in the first place. For most Muslims, the fact that homosexual acts are prohibited in Islam is fairly uncontroversial. In order to argue otherwise one basically has to ignore any kind of mainstream fiqh, take a radically skeptical attitude towards the hadith which clearly speak negatively towards sodomy (whether homosexual or heterosexual) and then radically reinterpret the multiple Quranic statements addressing the people of Lot along the lines of: Most surely you come to males in lust besides females; nay you are an extravagant people.

In the course of participating in those discussions I found some interesting resources:

First, a blog called Eye on ‘Gay Muslims’ with the subtitle "Principled, compassionate Islamic perspective"

Second, a paper The Effeminates of Early Medina by Everett K. Rowson gives some insights and descriptions into the role of the mukhannathun or so called 'effeminates' during the time of the prophet and the later generations.

And thirdly, the paper Ibn Hazm on Homosexuality: A Case-study of Zahiri Legal Methodology which, as the title explains, looks at how the Zahiri (Literalist) school derives its ruling on homosexuality. I think the paper is interesting on two counts; first, it is a good example of how "literal" doesn't necessarily mean "strict" or "harsh", and second, the paper argues that Ibn Hazm himself was a chaste homosexual.

muslims against sharia? (part two)

For more impressions across the blogosphere about this odd group:

Phanari: The Secret Behind Muslims Against Sharia
Logan the Huge: "Muslims" Against "Sharia"
Dunner's: Sinking to a New Low

see also:
muslims against shariah? (sic)