Common Ground News（http://www.commongroundnews.org）
Explaining shari'a（Source: New York Times Magazine）（http://www.nytimes.com/pages/magazine）, 16 March 2008
by Noah Feldman
Cambridge, Massachusetts - Last month, Rowan Williams, the Archbishop of Canterbury, gave a nuanced, scholarly lecture in London about whether the British legal system should allow non-Christian courts to decide certain matters of family law. Britain has no constitutional separation of church and state.
The archbishop noted that "the law of the Church of England is the law of the land" there; indeed, ecclesiastical courts that once handled marriage and divorce are still integrated into the British legal system, deciding matters of church property and doctrine. His tentative suggestion was that, subject to the agreement of all parties and the strict requirement of protecting equal rights for women, it might be a good idea to consider allowing Islamic and Orthodox Jewish courts to handle marriage and divorce.
Then all hell broke loose. From politicians across the spectrum to senior church figures and the ubiquitous British tabloids came calls for the leader of the world's second largest Christian denomination to issue a retraction or even resign. Williams has spent the last couple of years trying to hold together the global Anglican Communion in the face of continuing controversies about ordaining gay priests and recognising same-sex marriages. Yet little in that contentious battle subjected him to the kind of outcry that his reference to religious courts unleashed. Needless to say, the outrage was not occasioned by Williams's mention of Orthodox Jewish law. For the purposes of public discussion, it was the word "shari'a" that was radioactive.In some sense, the outrage about according a degree of official status to shari'a in a Western country should come as no surprise. No legal system has ever had worse press. To many, the word "shari'a" conjures horrors of hands cut off, adulterers stoned and women oppressed. By contrast, who today remembers that the much-loved English common law called for execution as punishment for hundreds of crimes, including theft of any object worth five shillings or more? How many know that until the 18th century, the laws of most European countries authorised torture as an official component of the criminal-justice system? As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of shari'a, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.
In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by shari'a for a handful of offences, we rarely acknowledge the high standards of proof necessary for their implementation. Before an adultery conviction can typically be obtained, for example, the accused must confess four times or four adult male witnesses of good character must testify that they directly observed the sex act.
The extremes of our own legal system — like life sentences for relatively minor drug crimes, in some cases — are routinely ignored. We neglect to mention the recent vintage of our tentative improvements in family law. It sometimes seems as if we need shari'a as Westerners have long needed Islam: as a canvas on which to project our ideas of the horrible, and as a foil to make us look good.
In the Muslim world, on the other hand, the reputation of shari'a has undergone an extraordinary revival in recent years. A century ago, forward-looking Muslims thought of shari'a as outdated, in need of reform or maybe abandonment. Today, 66 percent of Egyptians, 60 percent of Pakistanis and 54 percent of Jordanians say that shari'a should be the only source of legislation in their countries.
Islamic political parties, like those associated with the transnational Muslim Brotherhood, make the adoption of shari'a the most prominent plank in their political platforms. And the message resonates. Wherever Islamic political activists have been allowed to run for office in Arabic-speaking countries, they have tended to win almost as many seats as the governments have let them contest. The politicised Islamic movement in its various incarnations — from moderate to radical — is easily the fastest growing and most vital in the Muslim world; the return to shari'a is its calling card.
How is it that what so many Westerners see as the most unappealing and pre-modern aspect of Islam is, to many Muslims, the vibrant, attractive core of a global movement of Islamic revival? The explanation surely must go beyond the oversimplified assumption that Muslims want to use shari'a to reverse feminism and control women — especially since large numbers of women support the Islamic political activists in general and the ideal of shari'a in particular.
One reason for the divergence between Western and Muslim views of shari'a is that we are not all using the word to mean the same thing. Although it is commonplace to use the word "shari'a" and the phrase "Islamic law" interchangeably, this prosaic English translation does not capture the full set of associations that the term "shari'a" conjures for the believer. Shari'a, properly understood, is not just a set of legal rules. To believing Muslims, it is something deeper and higher, infused with moral and metaphysical purpose. At its core, shari'a represents the idea that all human beings — and all human governments — are subject to justice under the law.
Shari'a is best understood as a kind of higher law, albeit one that includes some specific, worldly commands. All Muslims would agree, for example, that it prohibits lending money at interest — though not investments in which risks and returns are shared; and the ban on Muslims drinking alcohol is an example of an unequivocal ritual prohibition, even for liberal interpreters of the faith.
Some rules associated with shari'a are undoubtedly old-fashioned and harsh. Men and women are treated unequally, for example, by making it hard for women to initiate divorce without forfeiting alimony. The prohibition on sodomy, though historically often unenforced, makes recognition of same-sex relationships difficult to contemplate.
But shari'a also prohibits bribery or special favours in court. It demands equal treatment for rich and poor. It condemns the vigilante-style honour killings that still occur in some Middle Eastern countries. And it protects everyone's property — including women's — from being taken from them.
Unlike in Iran, where wearing a headscarf is legally mandated and enforced by special religious police, the politicised Islamic view in most other Muslim countries is that the headscarf is one way of implementing the religious duty to dress modestly — a desirable social norm, not an enforceable legal rule. And mandating capital punishment for apostasy is not on the agenda of most elected Islamic political activists.
For many Muslims today, living in corrupt autocracies, the call for shari'a is not a call for sexism, obscurantism or savage punishment, but for an Islamic version of what the West considers its most prized principle of political justice: the rule of law.
・ Noah Feldman is a law professor at Harvard University and an adjunct senior fellow at the Council on Foreign Relations. This essay is adapted from his book The Fall and Rise of the Islamic State, which will be published later this month. The full version of this excerpt can be found at http://www.nytimes.com.
・All North American and European English-language publications must contact the New York Times for copyright permission.
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