By Jon Pahl
What’s so scary about sharia, or Islamic legal principles? According to a recent decision from a US Federal Appellate Court – one level below the Supreme Court – not much.
The recent decision of the 10th Circuit Court effectively blocks implementation of Oklahoma Law 755, also called the “Save Our State” measure. Law 755 was passed as a constitutional amendment by 70 per cent of Oklahoma voters in November 2010. Along with prohibiting courts from using “international law”, it also expressly “forbids courts from considering or using Sharia Law”. Similar laws have passed in Tennessee and Louisiana and comparable bills are pending in at least 20 states.
The 10th Circuit Court received the case after US District Judge Vicki Miles-LaGrange decided in favour of Muneer Awad, Executive Director of the Council on American-Islamic Relations in Oklahoma, who had sued to block the law. He claimed Law 755 violated his rights to religious freedom, which are protected by the First Amendment of the US Constitution.
The three-judge panel that issued the ruling against Law 755 did so largely for procedural reasons, claiming Awad had grounds to raise First Amendment issues. Law 755, they agreed, expressly condemned only one religion, Islam, thus violating the establishment clause of the US Constitution, which dictates that the government cannot favour one religion. Finally, the judges also suggested there was little reason for Law 755. Supporters of Law 755 admitted “they did not know of even a single instance where an Oklahoma court had applied Sharia law”.
This issue’s salience here in the United States is symbolic, it isn’t really about law. While the term “sharia” sounds scary to lots of Americans, the irony is that many who think they are opposed to sharia would be only too happy to support many of its general claims. For instance, those who claim to mistrust it would often love to have Americans (and perhaps especially lawyers and judges) pay more attention to the Ten Commandments – a kind of reasoning encouraged by sharia.
Decades ago, Princeton University professor Edward S. Corwin published a still-used short book entitled The “Higher Law” Background of American Constitutional Law, which should be assigned reading for anybody wary of sharia. According to Corwin, American constitutional law was founded not only upon Enlightenment philosophical notions, but also upon theological affirmations. In fact, he suggested, American jurisprudence rested on a deep ethic that was quite congenial to transcendent “higher” reasoning.
At root, sharia asserts this fact. This was what the Anglican Archbishop of Canterbury, Rowan Williams, was trying to say in 2008 when he opined in a BBC interview that “there are perfectly proper ways the law of the land pays respect to custom and community; that’s already there.”
As Williams discovered, much of the furore over his comments has focused on issues prone to sensationalism. Different customs have developed in Western democracies and Muslim majority countries regarding property (especially borrowing and lending) and family life (especially monogamy and divorce). But these contrasts could just as easily be applied to England and the United States a century ago and England and the United States today. Divorce laws in particular have changed dramatically.
In the vast majority of cases, there is no conflict between Islamic legal principles and the jurisprudence of English common law or American constitutional law. One reason for this is that the “higher law” backgrounds of the different traditions in fact share an Abrahamic ethic: the social covenant to command the good and prohibit the evil. As expressed in A Common Word, a consensus document between Muslim and Christian religious leaders, Muslims share two basic ethical principles with Jews and Christians: love God and love your neighbour – as well as other core values.
US courts have the responsibility to uphold constitutional rights. Other scholars and professionals have responsibilities to educate the public and dispel myths about sharia.
For example, the American Bar Association recently sponsored a webinar entitled “Dispelling the Sharia Threat Myth”. And Muslim scholars have been offering clarifications, among them “Dispelling Myths about Sharia” by Imam Mustapha Elturk. According to Elturk, sharia is a set of principles that guides Muslims to secure five “protections”: faith, life, family, property, and intellect. In this sense sharia is analogous to the “higher law” background of American Constitutional law. The challenge is in the application. After all, consider the debate in Western tradition about how to apply the commandment “Thou shalt not kill.”
Sharia is bound to resurface in the 2012 US presidential campaign. The way to move forward is to point out demagogues and allay fears of those concerned. The debate over sharia might even help us define a clearer role for religious reasoning in public life. In short, it might help us find common ground.
Jon Pahl, Ph.D. is Professor of the History of Christianity in North American and Director of MA Programs at the Lutheran Theological Seminary at Philadelphia