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Sharia

A “Lesson For Newt” on Sharia Tries To Hide This One Big Fact

A little more humility would have been wiser.

BY CounterJihad · @CounterjihadUS | July 19, 2016

Professor Noah Feldman of Harvard University decided to pen an article in the New York Times chiding Newt Gingirch for his views on sharia.  Perhaps out of habit, or perhaps forgetting that Gingrich is also a Ph.D., Professor Feldman adopted the tone of a lecturer.  He even called the piece “A Lesson for Newt Gingrich:  What Shariah Is (and Isn’t).”

The nut of the lesson is that — Feldman says — there’s an obvious difference between sharia and the kind of Islamic law enforced by human beings.  Treating the one as if it were the other is a category error:

Start with a crucial distinction. Shariah doesn’t simply or exactly mean Islamic law. Properly speaking, Shariah refers to God’s blueprint for human life. It is divine and unchanging, reflecting God’s unity and perfection….  In contrast, another Arabic word, “fiqh,” refers to the interpretation and application of Shariah in the real world. Fiqh is Islamic law as practiced by people….

The distinction between Shariah and fiqh matters especially because Muslims, including religiously traditional Muslims, do not all agree on what Islamic law requires in practice.

The suggestion here is that Gingrich has made a mistake so obvious that only someone unqualified to write about Islam could make it.

There’s just one problem.  As Feldman himself has to admit later in the piece, other people also treat sharia exactly the way that Gingrich does.  Which people?  Why, the very people that Gingrich was talking about.

In public discourse both in majority-Muslim countries and in the West, Shariah has come to take on other meanings. Advocates of political Islam — roughly, people who buy into the slogan “Islam is the answer” — sometimes use the term to describe a government that complies with the dictates of Islamic law….  When they seek to incorporate Shariah into their constitutions, they are usually asking for modern legislation informed by classical Islamic law, and also sometimes for a rule that no legislation may violate classical Islamic legal rules.

In Saudi Arabia, where there is no written constitution, classical Islamic legal principles function as a kind of unwritten, common-law constitution. But even Saudi Arabia has a body of administrative regulations that function a lot like legislation.

The ideologues of the Islamic State purport to follow Shariah exclusively. What that means in practice is that they justify their policies by reference to rulings that can be found in the vast corpus of classical Islamic legal writing…. The Taliban were less expert still, and sometimes called their rules Shariah-based even when they were in fact derived from Pashtun tribal custom.

In other words, the people Gingrich was talking about turn out to use the word “sharia” in exactly the way he was attributing it to them.  Ivory Tower professors may believe in a distinction between “sharia” and “fiqh,” but the people who are out there killing other people over what they take to be Islamic law aren’t concerned about this distinction.  The question Gingrich wanted to ask is thus very much on point.

It would have been wiser, given this gaping hole in his argument, if Feldman had adopted a more conciliatory tone.  Instead of proposing this distinction as an obvious example of Gingrich’s ignorance, he might have suggested it for what it is:  a less well-known distinction available within the classical structure of Islam that reformers could potentially use to rein in the excesses of Islamists.  Then there could have a meaningful and useful debate between the political sides represented by Dr. Gingrich and Professor Feldman.  How useful is this distinction given that it is rejected by the very people we are worried about?  How could we support reformist efforts if they did try to leverage this distinction?

We would also want to talk about whether the various schools of “fiqh” can be brought within an acceptable notion of human rights.  Even if you are completely aware of the distinction, for example, there is reason to be concerned that women and sexual minorities will never enjoy equality of rights under either “fiqh” or “sharia.”

That brings us back to the core issues.  If Feldman is right to say that adherence to sharia is as central to Islam as “the doctrine of Christ’s divinity” is to Christians, does that mean that Islam’s God does not believe in equality for women?  For gays?  That is a huge theological claim that ought to be very troubling, given the history Feldman himself is describing.  These several schools of “fiqh” have a kind of agreement on the subject that implies they think they have at least a broad understanding of God’s will here.

The other core issue is coercion.  The troubling fact about all these beliefs is not the beliefs themselves, but the clearly demonstrated intent by many to use force to compel others to adhere to these beliefs.  It could be that Gingrich’s thoughts would be clearer if we turned the debate to coercion.  Whatever you believe about God’s will for human beings, do you also believe in a legitimate power to use force to compel others to adhere to those beliefs?

The United States is founded in part on the principle that no one, and no government, can legitimately exercise the power of compulsion in matters of faith.  Our principle of freedom of conscience means that no law and no police and no court can compel you in matters of religion.  We also believe, even more strongly, that coercion cannot be legitimately used by non-state actors.  Whether the caliphate that the Islamic State (ISIS) claims to be, or a terrorist group, or a ‘lone wolf,’ no one has any legitimate power to enforce these religious rules on others.

The contrary belief is the one that Gingrich is really worried about.  That’s the belief that ISIS and the Taliban call the enforcement of “sharia.”  Allowing that they don’t speak about it quite the same way at Harvard Law that they do on the battlefields of the caliphate, nevertheless it is what Gingrich is talking about that is the real problem to be solved.  Feldman can add to that discussion, and perhaps even improve it, once he is ready to stop being snide.