Sharia Law: Some Much Needed Historical Perspective

This poster was created back in 2007 (for more granularity click here) but was widely circulated in connection with the Women’s March (January 21, 2017), including some pictures that were photoshopped to make it seem as if burqa wearing women were carrying it.

Both the fact that some of the organizers of and participants in the Women’s March are proponents of Sharia Law, as well as the widespread and sharply critical reaction to that fact, attest to a quite problematic divisiveness over how Islamic culture can be accommodated within Western culture (for some useful context see this critique of the promotion of Sharia Law in the Women’s March by Cheri Berens, an American woman living in Egypt). The issue is indeed ‘how’ and not ‘whether’ to accommodate Sharia Law, for worldwide demographics are such that there is no place where people who identify themselves as Western can even pretend they do not need to grapple with the accommodation issue. In the US, for example, it is likely that based on the number of Muslims already legally here as citizens or otherwise that Muslims will equal or exceed the number of Jews in the US in the not too distant future.

On a global level, not only does the Muslim population far exceed that of Jews, but it exceeds that of every other group of people that can be fairly categorized by their religious beliefs and practices except for Christians. As generally reported such demographics are predicated on problematic assumptions about how religion itself is defined and the way any one religion may evolve over time or disappear entirely and new religions emerge. It is realistic to expect that Islam, as the most recent of the three major branches of the Abrahamic tradition, will undergo doctrinal and/or organizational changes analogous, for example, to the Protestant Reformation of German Christianity.

It is readily apparent that to some extent Islamic terrorism manifests a resistance to such change as has already occurred within Islamic culture. It is therefore imperative that further changes should not be passively awaited. On the contrary, it can be anticipated and even encouraged by appealing to the way history itself is an evolving revelation with respect to which no one person or group can claim exclusive authority. That means that no one text — including a religious text or legal interpretations derived from it — can essentially be cordoned off from scrutiny relative to other sources of inspiration, textual or otherwise. The Protestant Reformation, for example, derived much from the democratization of textual interpretation that the then relatively new technology of printing empowered.

Contemporaneous with the development of such technology, however, was the rapid and widespread development of all forms of artistic expression, ultimately leading to a revival of the appreciation of the nude body as a manifestation of the divine. Slowly, and quite obviously in fits and starts, this led to changes in laws regarding how or whether art can be defined and what art can or should be displayed and where. Because the nude in art is above all else a legacy of early Greek culture and specifically goddess worship, it is legitimate to characterize the protection such art enjoys under US law as at once a matter of freedom of speech and freedom of religion (consistent with the way ‘freedom’ and nature as ‘revelation’ are interpreted in Friedrich Schelling’s Essay On Human Freedom). The legacy of Greek culture with respect to art is worth emphasizing because Islamic thought and hence Sharia Law derives much from early Greek culture, particularly Empedocles, who is considered to be a prophet within the Islamic tradition. Appreciating the relevance of Empedocles, however, requires as a threshold matter a general familiarity with the way in which both Roman law and Greek philosophy influenced Sharia Law.

The Relevance of Roman Law and Greek Philosophy to Sharia Law

While Sharia Law is very much a legacy of Roman law and Greek philosophy, few people are aware of that legacy. As a result, opinions about Sharia Law are unnecessarily and unjustifiably polarized, if for no other reason than that people simply do not know what they are talking about. Where and when Islam arose, Roman law was still effectively ‘practiced,’ even in regions not directly controlled by the Roman (Byzantine) Empire, and even though Greek, and not Latin, was the ‘intellectual language’ (i.e., just as Western lawyers until well into the 19th century had to know Latin, lawyers at the time and in the regions where Islam arose had to know Greek).

Sharia Law: Roman Law With An Islamic Veil & The Tradition of Case Law

It is therefore not as surprising as it might otherwise seem to be that Sharia Law has even been characterized as ‘Roman Law with an Islamic Veil.’ Such a characterization can be defended at least with respect to the way Sharia Law has evolved from case law in a manner that goes all the way back to the time of Julius Caesar, if not earlier. It is remarkably similar to how case law still functions in all English speaking regions of the world. It can also be defended, however, by appealing to the fact that recognizing Sharia Law, that is, to enforce one or more of its provisions judicially, as a ‘type’ of law relative to other laws, is itself an artifact of legal analysis with its roots in the originally remarkably flexible Roman legal tradition. Though not formally presented as case law, within the Abrahamic tradition the relationship of the Talmud to the Torah, or Catholic Canon law to the New and Old Testaments is roughly analogous to that of Sharia Law to the Quran.

The Original Flexibility Of Roman Law: The Calendar As A Case Study

What goes into case law, that is, what the ‘substance’ of a given case is, rather than the trial procedure of which such cases are a record, has since remote antiquity been categorized in one of three ways: (1) natural, (2) religious and (3) civil (e.g., the statutory law of a given state or country). This means that analyzing any given case can be analogous to playing a game of multi-dimensional tic-tac-toe, where what is legally sanctioned on one level is prohibited on another. From time to time and in one place or another, there is a tendency to collapse the distinctions (especially (2) and (3)), but the fundamental bedrock of all law, including religious law, is in some sense the law of nature. In family law, which I will discuss in more detail in future posts, this is manifested in how a judge recognizes a marriage (often purely religious law) or orders a paternity test (natural law) to determine if a child support order (statutory law — in New York, an order that can be in effect for 21 years, including requiring that college tuition be paid).

Roman law is the primary source of the identification of such dimensions in legal analysis, as well as the willingness to accommodate ostensibly competing claims of legitimacy with respect to each and even among variations within each such dimension. There was a certain ‘hospitality’ to foreign cultures in early Roman culture that contrasts dramatically with the xenophobia and even racism of ancient Greek culture (though it obviously had some redeeming qualities). It can be analogized to the way in which Italians welcomed the South American tomato into their cuisine, essentially making it their own even though it was not known of until after the exploration and colonization of South America.

For example, the calendar by which we live today is an artifact of reforms in Roman law initiated by Julius Caesar (which ultimately led to his having a month named after him (July)). While it is thus a legacy of civil law (3), it owes much to Egyptian beliefs and practices (some of which Caesar may have learned from Cleopatra) (2). It would be intolerable for anyone who identifies with the Abrahamic tradition to associate themselves with such beliefs and practices, but for the fact that it above all else is derived from natural law (1), that is, the realities of reckoning time relative to the solar and lunar cycles.

The subdivision of the calendar into weeks goes back probably to Caesar as well or even earlier. The practice of recognizing at least one day off from business in a seven day period seems originally to have been a way of accommodating the recognition of the Sabbath by the large pre-Christian Jewish community in Rome. It can and should be taken as quite long standing precedent for the way in which cultural differences can be accommodated legally. Nevertheless, such an accommodation has practical limits (there are only so many days one can have ‘off’). That is effectively an example of the subordination of the religious and/or civil dimension of law to that of natural law.

A Provisional Conclusion: Sharia Law Does Have A Place In US Law

The basic takeaway from the foregoing analysis is that by itself Sharia Law cannot be dismissed entirely, as if a place for it in some respects cannot be found at all within the US legal system. That would be a betrayal of the very principles upon which our own legal system is based. An example relates to the well known Sharia Law prohibition of charging interest on loans that ostensibly seems to preclude it from being recognized in the US. Yet, what is at issue here can be analogized to a well understood distinction between bonds (loans) and stocks (equity) as contracts evidencing the way in which the risk and reward of a given shared economic enterprise is allocated among its participants. While nominally there is a big difference between a bond and a stock, substantively one can arrive at the same place economically using either form: it just takes a bit of creative drafting (such gamesmanship is common in corporate and tax law). This, in essence, seems to be the basis for a common form of Islamic banking (click here for more granularity on that). The adoption of Sharia Law in this respect is not controversial due to the fact that the issues are largely formal and do not implicate other dimensions of legal analysis, particularly the dimension of natural law.

The dimension of natural law, however, is unavoidable in other areas of legal analysis, most notably, family law, where for example, with respect to a paternity test, it effectively is ‘the’ law.

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TO COME:

The Ongoing Radical Revolution In US Family Law: A revolution in the true sense of the word: ‘turning back’ to (a) ancient Greek principles of sexual egalitarianism, as well as (b) acknowledging the unique authority of women with respect to family medicine and (c) the recognition of the fact that homosexuality can be inherited and hence cannot be deemed illegal. While many assume that feminism in the US derives from the demand of women for the right to vote following the Civil War and its decimation of the male population, the intellectual origins of feminism can be traced back to the intensification of interest in ancient Greek culture in the Romantic Era, especially in Germany. For more on that please see a post I have on Caroline Schelling, wife of Friedrich Schelling (the author of the Essay On Human Freedom referred to above (Caroline likely contributed substantially to that essay)): The German Diotima.

The ‘Islamic’ Empedocles and Sharia Family Law: Since Medieval times many Islamic scholars have deemed the early Greek/Sicilian philosopher Empedocles to be a ‘prophet.’ A key concept in his thought, however, was quite literally lost in translation, resulting in an interpretation of his thought as sanctioning ‘domination’ rather than egalitarianism. It is possible that because of the special status Empedocles has in Islamic thought a ‘recovery’ of what was lost in translation about his thought can lead to a better understanding of why Sharia Family Law with respect to gender and sexual orientation issues must change. For more on Empedocles and his relevance to modern philosophy and especially Heidegger (who it should be noted influenced Islamic thought in Iran in the mid 20th Century) see my post: Heidegger & Empedocles.

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