Contracting Fear: Islamic Law in the Middle East and Middle America

Contracting

Fear

Islamic Law in the Middle East and Middle America

Khurram Dara

CONTRACTING FEAR

Islamic Law in the Middle East and Middle America

Copyright © 2015 Khurram Dara. All rights reserved. Except for brief quotations in critical publications or reviews, no part of this book may be reproduced in any manner without prior written permission from the publisher. Write: Permissions, Wipf and Stock Publishers, 199 W. 8th Ave., Suite 3, Eugene, OR 97401.

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ISBN: 978-1-4982-0412-5

EISBN: 978-1-4982-0413-2

Cataloging-in-Publication data:

Dara, Khurram

Contracting fear : Islamic law in the Middle East and middle America / Khurram Dara.

x + 136 p. ; cm.—Includes bibliographical references and index.

ISBN

13: 978-1-4982-0412-5

1

. Islamic law—United States. 2. Islamic law—Interpretation and construction.

I. Title.

kbp440.3 d36 2015

Manufactured in the U.S.A.

Table of Contents

Title Page

Preface

Acknowledgments

Introduction

PART I

Chapter 1: An Overview of Islamic Law

Chapter 2: Early Sources

Chapter 3: History and Evolution

Chapter 4: Transition and Collapse

Chapter 5: Islamism, Terrorism, and the Future of the Middle East

PART II

Chapter 6: Islamic Law in America?

Chapter 7: A Solution in Search of a Problem

Chapter 8: Unintended Consequences

PART III

Chapter 9: Unconstitutional Laws for American Courts?

Conclusion

Cases and Commentary

Bibliography

Preface

Just a few weeks before I planned on submitting this to print, a troubling video emerged. It was recorded on a cellphone and shows a woman shrieking as she’s dragged into the middle of a road by a man wielding a sword. The man then lifts the sword and strikes her—not once, not twice, but three times—decapitating her.¹ This wasn’t the work of al-Qaeda or the Islamic State group—it was United States ally Saudi Arabia. It wasn’t an attack; it was an execution. The man with the sword was administering justice on behalf of a sovereign state against the woman, who was accused of raping and beating her child to death. The crime is obviously horrible—even so, it’s striking that a government today would use such a medieval punishment. Beheading is something that you might expect to see in Game of Thrones—not in real life, and especially not by a legitimate government. According to Saudi officials, they were following Islamic law. But is this really what Islamic law says? Some say the practice has pre-Islamic origins and believe it comes from Najdi tribal custom. When I first heard that, I became curious. Najd, it turns out, is the central region of Saudi Arabia, a place that was fairly isolated for most of history because of its remote location. Najd also happens to be the birthplace of a puritanical religious movement founded in the mid-eighteenth century known as Wahhabism—the official form of Islam in Saudi Arabia.

Over the last year and half, as I studied and researched Islamic law, I found this sort of thing happening over and over again. I’d come across a practice or punishment that was supposedly Islamic in origin, but after digging a little deeper, I’d find it wasn’t quite as cut and dried as it had originally seemed. It was as if power, politics, and culture were indistinguishable, all wrapped up into one and presumed to be religion. And that’s really shaped one of the main themes of this book—that we could use a little more nuance, a little more distinction, and a little more thought in our discussions of Islamic law today.

If you’ve ever read a news article or editorial about radical Islamists, you’ve probably seen sharia law mentioned. But for something that appears in political rhetoric so often, it’s hard to believe how inadequately the sharia has been explained in popular discourse. Descriptions of Islamic law will usually note its harsh nature and incompatibility with modern conceptions of justice, but that’s about it—and with radical Islamist groups waving its banner and draconian justice being administered in the Middle East, the sharia has become inextricably linked with extremism. In fact, some have begun to express concerns about the threat it may pose to the West. These concerns are what first led me to start researching the subject back when I was a student in law school. Admittedly, I went into the project assuming Islamic law was misunderstood in the West. And I do still think that today. What surprised me, however, was discovering how misunderstood it is in the Muslim world. More than anything else, I hope that this book gives readers a better understanding of Islamic law, its history, and its future.

Thanks for reading.

1. Abdelaziz, Leaked Video, paras. 3–4.

Acknowledgments

This book, like nearly everything I’ve ever done, would not have been possible without the love and support of my parents. Without them and the sacrifices they’ve made throughout their lives, I’d be nowhere.

I also want to extend a special thank-you to Professor Philip Hamburger, who was my advisor on a paper I wrote back when I was in law school—that paper ended up becoming the blueprint for this book.

And of course, I have to thank Farrah and Nasir for putting up with me; Jeff, for being critical in the way only a brother can be; Zeshan, for always being there to kick ideas around; Kipp and Caleb, for the help and advice since our CLS days; and Jennifer, for reminding me to keep my sights on the forest all those times I got lost in the trees.

Introduction

Islamic law has quite the reputation these days. Perceived as rigid and premodern, the sharia has gained notoriety as Islamist parties champion its revival in the Middle East. In popular media, an avalanche of information has been propagated on sharia law, particularly on blogs and other Web-based outlets. I’ve heard it said that the Internet is miles long, but only inches deep; that’s how I would describe much of the information out there on Islamic law: plentiful, but incomplete, and at times downright inaccurate.

Shari’a in Arabic means the way or the path and is believed to refer to the way or path to water.¹ Life in the ancient Middle East revolved around finding water, so the sharia represents the way or the path that Muslims are expected to follow in their lives.² In the premodern era the sharia manifested itself as a law system of sorts. But how the duties and obligations that make up the sharia fit with the modern state and whether they were meant to be carried out on a voluntary, individual basis or through institutional implementation, have been the subject of great debate and controversy among Muslims for decades.³ For some time now, what the sharia is and what it means depends on who you ask.⁴ Yet today this debate is seldom heard. It is taken for granted that what is currently practiced and purported to be Islamic law in the Middle East is in fact a true and genuine representation of the sharia,⁵ when in reality it is not at all. And unfortunately this modern reinvention of Islamic law is severely in conflict with our contemporary views of justice.

With the rise of radicalism and terrorism committed in the name of Islam, there’s growing concern in the West that Islam itself is the problem. While most people would agree that only a small minority of Muslims engage in this type of violence, many have started pointing to aspects of Islam, like the sharia, to make the claim that Islam is inherently extreme and radical. But Islamic law as practiced today, particularly in the Middle East, is completely different than the sharia as a law system that once existed. That is to say, what people often refer to today as Islamic law or sharia law is not the same as the sharia. The latter was not just law, it was a law system; one that existed in the premodern era and for all intents and purposes died after the First World War.⁶ Today’s versions of Islamic law, by contrast, are new and different from the sharia. In fact, as I argue in this book, they are so distinct from the sharia that a more appropriate term for this reinvention and reimagining of the past is neosharia law.

Recognizing the inconsistency between Islamic law today and its function in the premodern world is not novel; most scholarship on Islamic law is settled on this fact.⁷ But outside the academy, political rhetoric and public discourse in the Muslim world indicates this difference is neither understood nor appreciated. In many majority-Muslim nations, governments use political propaganda to convince citizens that their administration of law is in accordance with Islamic principles—and that opposing this type of law is akin to opposing Islam. As a result, many in the region have contracted fear: they fail to challenge the administration of law because they fear doing so means challenging their faith. But, as I argue, they should feel no hesitation in criticizing or condemning Islamic law as practiced today, nor should they feel any less pious for doing so, precisely because of the enormous differences between the classical sharia and its recent reinvention, neosharia law. The sharia as it originally existed also seems to be misunderstood. Despite its obvious religious connection, much of the sharia was the product of premodern Middle Eastern politics and culture. It was a pluralistic, evolving, and dynamic mechanism for social order and political stability. These realities, I argue, should change the perception, especially among Muslims, that Islamic law is static, permanent, and incapable of change.

Discussion of Islamic law has not just been limited to the Muslim world, however. The constant and seemingly growing threat of radicalism within Islam has brought Islamic law into the limelight in the West. Calls to outlaw or ban Islamic law from entering American courts have increased, and a national campaign to put foreign-law bans in front of state legislatures is underway. This is where Middle America comes in: over thirty U.S. states have considered proposals to ban Islamic law.⁸ It’s being touted as a matter of national security, a way to prevent the backwards practices of the Middle East from encroaching on our freedoms here at home, and it’s become a rather popular talking point in both state and congressional campaigns around the country. But these fear-driven proposals and enactments are unnecessary, misguided, and contrary to existing American law. Not because Islamic law should be applied in America (of course it shouldn’t), but because it has never been, and will never be applied here. In my view, these proposals are a solution in search of a problem and do more harm than good.

Part 1 explores the history of the sharia and the role it came to play in premodern Middle Eastern government. A result of efforts to maintain order, much of what would become the sharia was adopted and absorbed from existing cultural practices in the interest of expedience. In stark contrast to modern law, the sharia lacked uniformity and existed independent of the state. Moreover, the sharia developed from the bottom upward, considerably distinct from the top-down dissemination of law by modern government today. These aspects of the sharia, as scholars Wael Hallaq and Noah Feldman, among others, have argued, gave the law and the legal class that protected it remarkable strength in the premodern Middle East.⁹ Its separation from government allowed the sharia to constrain power of ruling classes, while its pluralistic structure empowered it with the malleability not only to adapt to different populations but also to evolve over time. However, significant changes both in and outside the Middle East over the course of the last two centuries have completely altered Islamic law and its relationship with government.

After part 1 lays out an overview of the sharia and its history, part 2 chronicles the antisharia movement and discusses the rise of Islamic law as political issue in America. Evaluating whether Islamic law genuinely poses a threat to America, I comb through some of the cases that apparently show its encroachment