Sharia and Day to Day Existence

Recently, I was invited to speak at the "Reviving the Islamic Spirit Conference" in Toronto, Canada. The assigned 'topic' came with a long series of questions, including: "With all the debate around the 'dangers' of Sharia and of Muslims' so-called desire to overthrow Western law and replace it with Islamic law, Muslims need to better understand the Westerners' concerns over al-ahkam al-sultanyah (Muslim public law)." My forty-minute presentation was an attempt (unsuccessful of course) to cover all of the questions included in the program booklet. One point in particular I wish I had articulated more effectively had to do with the relationship between sharia and secular laws of non-Muslim origin.

Beyond the false fear that Western Muslims are trying to take over, I pointed out that, even viewed through the prism of sharia, much, if not most, of American or Canadian law could be easily accommodated if not supported by religiously committed Muslims. Muslims might seek to modify, e.g., banking regulations to reflect Islam's ban on usury, or certain family and criminal law provisions (most of this applying only to Muslims) various terms of the Patriot Act or the sentencing guidelines for petty drug convictions, or aspects of America's war-making policies, including placing greater restrictions on weapons that routinely kill innocent civilians, based, ironically, on sharia doctrines of jihad. Beyond such exceptions, however, the bulk of laws affecting us in our daily lives would remain quite unobjectionable. And, to the extent that Muslims did seek change, this would be based not on Quranic verses, Prophetic hadith or ancient authorities but on the same basic logic and considerations that put the original laws in place to begin with.

This was part of a broader point about the nature of sharia and how it relates to non-Muslim orders and the fact that "non-Muslim" does not necessarily mean "un-Islamic." I gave a few quick examples of how the Prophet modeled this principle in his interaction with the pre-existing order of his adopted home at Medina; and I alluded to how the early Muslims followed suit in the conquered territories. What I did not get around to doing was providing concrete examples of this principle at work in modern America or Canada.

Simply stated, many, if not most, of the rules that most consistently touch our lives are secular in both origin and substance. By secular, I do not mean anti-religious but simply that rather than being based on Biblical (or other religious authority) they are grounded in what practical reason suggests will serve concrete human interests in the here and now. Not scripture, in other words, but order, practicality, efficiency and the like are the basic authority. And (politics aside) it is on this authority that these laws are promulgated, change or remain the same. One wakes up in the morning, takes a shower, eats breakfast, gets in one's car and goes to work. Secular laws and regulations govern every step of this process. Landlords are legally bound to provide heat and hot water; all of the ingredients in one's breakfast are regulated by food-safety standards, and all are delivered via means subject to interstate commerce regulations; one cannot operate one's car without a driver's license; and as soon as one turns on the car-radio, FCC regulations kick in; upon entering the highway, one falls under the mercy of speed limits and traffic laws, broken lines permitting one to change lanes, unbroken lines not; finally one arrives at work, where building codes and zoning regulations all press their claims.

My point in all of this is that the fact that these laws and regulations happen to be of non-Muslim origin does not automatically render them antithetical or unacceptable to Islam. As such, Muslims with perfectly good-faith commitments to sharia could wholly support and sanction the vast majority of them. Moreover, even where sharia-minded Muslims did seek to change, say, the speed limit from 55 mph to 50 or 60 mph, this would be governed not by any explicit text from the Quran or Sunna but on the basis of what was deemed to be a better balance between the secular interests of community safety and practical efficiency.

Of course, we should not be overly irenic about the relationship between sharia and Western law. But we also need not be overly confrontational or alarmist. While there remain areas of substantive difference and even conflict between sharia and the laws of the United States or Canada (as exist between these systems and Halakhah, various articulations of Protestantism or Catholic social teaching), taken as a whole, the area of agreement, or at least compatibility, is potentially far larger. Though most observers, Muslim and non-Muslim alike, tend to limit their understanding of sharia to its criminal sanctions, in point of fact, sharia is a far more serious endeavor than that. And while Muslims should continue to struggle to ensure their ability to practice those aspects of their religion that cannot be surrendered in good conscience to secular logic or authority (and most of these probably relate to family law) this should not be mistaken for a denial of their recognition of those numerous aspects that can.

This brings me to two closing points. First, while liberal democracy is grounded in the theory of religious neutrality, controversies such as those surrounding stem-cell research, bigamy or abortion make it increasingly difficult to sustain the argument that all of American law (and perhaps especially family law) is, or perhaps even can be, un-storied and thus religiously neutral, either in origin or effect. Yet, just because all of the law is not based on religiously neutral considerations -- order, efficiency and the like -- this does not mean that none of it is or can be. To my mind, this recognition opens new possibilities in the way we think about the relationship between Islam and liberal democracy.

Second, in his recent, thought-provoking critique of liberalism, The Trouble With Principle , Stanley Fish argues that,

"a person of religious conviction should not want to enter the marketplace of ideas but to shut it down, at least insofar as it presumes to determine matters that he believes have been determined by God and faith. A religious person should not seek accommodation with liberalism; he should seek to rout it from the field."(p. 250)

In the case of Islam, however, this would presume that sharia ("God and faith") and the marketplace of ideas are co-extensive and that everything in the religious law is of the same level of authoritativeness and reliance upon scripture. But, clearly, Quranic injunctions requiring fathers to pay child support, e.g., are not the same as the jurists' conclusions on the actual dollar-amounts, even if both might be deemed "sharia" at any given time or place. On this distinction, the relationship between religiously committed Muslims and the marketplace of ideas clearly admits of good-faith alternatives to attempts to shut it down.

Religious peoples', including Muslims', unwillingness to negotiate some issues should not be confused with an unwillingness on their part to negotiate all issues. Muslims may not be willing to debate the moral status of wine-drinking, usury or the shares of inheritance; but traffic lights, FCC regulations, speed limits, building codes and their myriad likenesses? Clearly there is much to talk about, much to cooperate on and far less to fear, even assuming Muslims' good-faith commitment to sharia.