UPDATE: David Yerushalmi, a leading legal adviser to the anti-Sharia movement, brilliantly clarifies the legal issues involved here, courtesy of NRO columnist Andrew McCarthy, a former federal prosecutor and expert on Muslim terrorism.
Some leading conservative voices, notably Princeton law professor Robert George, denounce the anti-Sharia movement as an attack on religious freedom. Now Matthew Schmitz, the deputy editor of First Things (where I was senior editor from 2009 to 2011), abominates what he calls “anti-Muslim bigotry” in a commentary published June 14 at National Review. Mr. Schmitz can’t understand why there is such a fuss about Sharia:
Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these “foreign” legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld. The other possible reading of the law is that it only bars rulings based on foreign legal systems when the rulings themselves would violate constitutional rights.
If individuals want to settle civil cases under their own set of rules, why should anyone try to stop them? But there is a special circumstance in the case of Sharia that distinguishes it from Christian, Jewish, or French law. That is the problem of wife-beating .The fact is that Sharia does not recognize the universal principle of Western law that only the state has the authority to inflict violence, and specifically assigns to the male head of household quasi-state rights to inflict violence on his wife. No civil proceeding of any kind can be sanctioned under American (or any Western) law if the explicit or implicit threat of violence intimidates one of the parties to the negotiation. Yet violence is embedded in Muslim family law in a radically different way than any Jewish or Christian law. The difference is so extreme and so well-documented that comparison itself is invidious; as a Jew, I take offense when Sharia is compared to Halakha. There are superficial resemblances between Muslim and Jewish law, to be sure, because Muslim law is in large measure a lampoon of Jewish law, but the content is radically different.
Prof. George surely is correct to argue that anti-Sharia legislation and opposition to the building of mosques may infringe religious liberty. The anti-Sharia movement wields a blunt instrument that carries the risk of collateral damage. What are we do to, though, about a religion that explicitly sanctions domestic violence as a matter of first principles, because it denies the principle that only the state may employ violence? The Supreme Court has upheld the right of voodoo practitioners to sacrifice chickens, but American law cannot possibly tolerate wife-beating. Yet wife-beating is so deeply embedded in Islamic theology and law as to contaminate any aspect of Sharia that touches on family relations. How does one balance the Constitutional guarantee of religious liberty with the fundamental obligation of the state to protect individuals (in this case Muslim wives) against violence? This is not an abstract problem; according to Muslim women’s organizations, domestic violence is endemic in Muslim communities.
I am disappointed in my old colleagues from First Things, who have chosen to weigh in on the debate without so much as mentioning the elephant in the parlor, namely wife-beating. Shame on them.
This is not a secondary or accidental issue for Islam; on the contrary, the matter of wife-beating is definitive for Muslim understanding of the relationship between the individual and the state under Islam. As I wrote in a 2010 essay on the subject, there is no record of a recognized Muslim authority repudiating wife-beating. Tariq Ramadan, the Swiss Muslim scholar who purports to offer a Westernized version of Islam, notoriously defended wife-beating in a 2003 televised debate with then-French interior minister Nicolas Sarkozy.
In fact, Westernized Muslim scholars strive to justify the practice on Islamic legal grounds. Muslim traditional society is a nested hierarchy in which the clan is an extended family, the tribe an extended clan, and the state an extended tribe. The family patriarch thus enjoys powers in his realm comparable to those of the state in the broader realm. That is the deeper juridical content of the Koranic provision for wife-beating in Surah 4:34:[Husbands] are the protectors and maintainers of their [wives] because Allah has given the one more [strength] than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in [the husband’s] absence what Allah would have them guard. As to the women on whose part you fear disloyalty and ill-conduct, admonish them first, refuse to share their beds, spank them, but if they return to obedience, seek not against them means of [annoyance]: for Allah is Most High, Great. An essay by two Michigan State University Law students, Bassam A Abed & Syed E Ahmad, is cited often on Islamic web sites as a credibly modern interpretation of Surah 4:34. Abed and Ahmad begin with the legal principle that sanctions wife-beating, namely that the husband is the “governor” or “administrator” of the family.
The translator’s use of the term “protectors” in the first line of the aforementioned quote is in reference to the Arabic term of qawaamoon (singular:qawaam). Qawaamoon has been defined in various manners by different scholars and translators. Abul ‘Ala Maududi, has defined qawaamoon as “governors” and as “managers”. Qawaam “stands for a person who is responsible for the right conduct and safeguard and maintenance of the affairs of an individual or an institution or an organisation [sic].”
The authors explain:
The majority of jurists hold that the language of the “Discipline Passage” itself reveals a sequential approach to the discipline authorized. For them, the conjunction wa (“and”) used between the various types of discipline signifies its chronological order. This approach guides a husband in disciplining his wife that is disobedient, regardless of how disobedience is defined. In following the disciplinary process, he must first admonish his wife, then desert her in bed, and finally physically discipline her as a last resort to marital reconciliation.
Beating is permitted, Abed and Ahmad explain, but only if it is done in a spirit of reconciliation:
The greatest controversy and misunderstanding of the “Discipline Passage” is in the final stage of the disciplinary process – “spanking” the disobedient wife. The reconciliatory purpose behind the passage’s “spanking” provision helps debunk the misconceptions surrounding this disciplinary stage. A husband is not to “spank” his wife if his motivation in doing so is other that such reconciliation. “Spanking” out of anger, for punishment, or for retaliation is prohibited, running contrary to the reconciliatory rationale. Similarly, a husband cannot “spank” his wife to humiliate her, cause in her fear, or to compel her against her will. Islam permits “spanking” to remind the wife of her disobedience and to bring her back to obedience so as to facilitate marital reconciliation.
Decisive in the above analysis of Surah 4:32 is the analogy between the husband and the head of a political subdivision or organization. The state in traditional society devolves its authority to the cells from which it is composed, starting with the family, which is a state in miniature, whose patriarch is a “governor” or “administrator.” Traditional society is organized like a nested set of Russian dolls: the clan is the family writ large, the tribe is an extension of the clan, the state is an alliance of the tribes, and the relationship of citizen and sovereign is reproduced at each level.
The president of the North American Council for Muslim Women, Sharifa Alkhateeb, estimated in a 1998 study that physical violence occurred in about 10% of Muslim marriages in the United States. “The rates of verbal and emotional abuse may be as high as 50% based upon international studies and preliminary research in the US,” Alkhateeb’s website states. It is no surprise that the efforts of Alkhateeb and other Muslim advocates for women’s rights get little help from Muslim clergy. “Certainly, it is wise for our religious leaders to be cautious in not passing quick, superfluous judgment when counseling couples on domestic matters,” the al-Muslimah website complains. “However, when a Muslim sister approaches the masjid [mosque] for help, in fear of her life and that of her children, our leaders need to seriously consider the repercussions, and possible legal implications, of their advice. It is never enough for sisters in abusive relationships to be told to ‘be patient’, ‘try harder’, or ‘your reward is with Allah’.” To direct these women to Sharia courts would be a betrayal; in many cases it would reinforce the abuse.
What are we to do about an epidemic of violence against women in which the violent offenders consider themselves legally and theologically justified in their criminal behavior? Conservatives surely do not want more government intervention in family life, but the government nonetheless has an obligation to protect women against domestic violence. Even in cases where devout Muslim women acquiesce to domestic violence on Koranic grounds, the state has an obligation to protect their children against the spectacle of an abused mother. To the extent that local courts may turn a blind eye to Muslim domestic violence on the spurious grounds of cultural relativism, legislatures have an interest in directing that the dilution of individual rights under American law is unacceptable.
These are difficult questions, and it is easy to find fault with specific proposals in the anti-Sharia movement. Conservative legal scholars like Prof. George are the authorities from whom we would solicit help on such thorny matters; it is all the more distressing to hear Prof. George denounce the anti-Sharia movement, rather than advise it.
I find Prof. George’s position baffling. He wrote on the First Things website on June 5th:
Catholics have two reasons to speak out in defense of the religious freedom of Muslims, Jews, Protestants, Latter-Day Saints, and other non-Catholics, as well as their own religious freedom. The first (and more important) reason is simply that it is the right thing to do. Faith and reason bear common witness to the profound truth that religious liberty is a right held equally by all. The second reason is that the denial of religious liberty for any one group erodes the foundations of religious liberty for everyone. If you value your own religious freedom, it is prudent to defend the other guy’s religious freedom when it comes under attack. A precedent established by people in, say, Murfreesboro, Tennessee who despise Islam and see it as a pernicious force, may prove very handy to people in, say, San Francisco who have a similar attitude towards Catholicism. (I hope it goes without saying that not everyone in Murfreesboro is hostile towards Islam and not everyone in San Francisco despises Catholicism.
I stand shoulder-to-shoulder with my Catholic friends on the infringement of their religious liberty by the Obama administration. But it is very strange to see a threat to Catholic or Jewish liberty in the anti-Sharia movement, which is supported by conservatives, and disproportionately by evangelical Christians. Evangelicals are enthusiastic allies of Catholics on the matter of religious freedom against the depredations of the Obama administration. Where the religious freedom of the LDS is concerned, it should be remembered that the government continues to suppress polygamy among deviant Mormon-derived sects, asserting the protection of individuals under the law over and above a religious doctrine. If the LDS had to abandon polygamy, Muslims a fortiori should abandon wife-beating.
Here is a challenge to Muslim religious leaders: Publicly abjure Surah 4:34 of the Koran, and I personally will join you in opposing the anti-Sharia movement. Any takers? I won’t hold my breath; no Muslim religious authority has ever abjured Surah 4:34, because Muslim theology states that it is the uncreated word of God, dictated to Mohammed by the Archangel Gabriel, and to abjure this one passage would call into question the divine nature of the Koran as a whole.