[lit-ideas] Re: Sharia Law in Germany
- From: Phil Enns <phil.enns@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 8 Sep 2011 12:13:28 -0400
Lawrence, it really is awkward if you regularly post links to comments
you make in another context. To respond on this list to comments made
elsewhere is to put at a disadvantage those who don't follow your
link. And to expect people to visit your blog in order to understand
comments made on this list is self-serving.
On his blog, Lawrence quotes from an interview with Soeren Kern, who
is supposed to be some kind of expert on European security issues. I
haven't read anything by Kern, so I don't know if he is any good or
not, but from what Lawrence quotes, Kern can't be providing much
useful when it comes to Islam and Muslims.
Lawrence approvingly quotes Kern: "But the proliferation of Sharia law
in Germany suggests Merkel is mistaken. Sharia law now does apply in
Germany."
First, the increase of something does not make it authoritative,
legal, representative or anything else other than the increase of
something. The increase in nutty talk about returning to the gold
standard does not mean there is a return to the gold standard.
Second, the term 'Sharia law' is being used ambiguously. All Muslims
are expected to live according to Sharia. In this sense, Sharia is a
set of very general principles meant to guide all Muslims in how they
live their lives. Examples of this might be avoiding drinking alcohol
and refraining from usurious financial dealings. This sense of Sharia
does not provide specifics for daily life, such as whether one should
never drink alcohol or merely avoid drunkenness, or what counts as a
usurious financial practice or what counts as an approved financial
practice. Sharia law, in this sense, is applied everywhere there are
faithful Muslims. There is also a tremendous amount of disagreement
about the nature of this Sharia. For example, I was at a conference
where Muslims engaged in very heated argument over whether Sharia was
one, eternal and unchanging, or whether there were multiple Sharias
that changed according to different interpretations relative to time
and place. An example of someone who is trying to 'modernize' Sharia
is Abdullahi Ahmed An-na'im, whose writings I would highly recommend
for those interested.
Sharia is a set of general principles which need to be applied in
specific cases. This application is done through fiqh, which is a kind
of legal reasoning that attempts to apply general rules to individual
cases. Sunni Muslims have four main traditions of fiqh, Shi'i have
two, and then there are a multitude of minor fiqh traditions. Each of
these traditions of fiqh have unique ways of applying Sharia to daily
life, guiding everything from the details of how to hold ones hands
while praying, to issues like marriage, divorce and inheritance.
Within these traditions, there would be a great deal of variation
depending on culture and who is doing fiqh. If a Muslim has a question
regarding some aspect of faithfulness, they might go to an expert in
fiqh to ask for guidance. (In my experience, Muslims don't always take
this advice and often will shop around to find someone who will give
the advice they prefer.) In this sense, there would be 'Sharia
courts', which would be a formal setting where an expert in fiqh would
give advice on how to apply Sharia to specific cases. These judges do
not have any authority for Muslims beyond their reputation as experts,
and cannot enforce their judgments. In my experience, Muslims are
often very creative in how they apply the judgments of these courts,
making adjustments as deemed necessary. It is very likely that these
courts are operating anywhere there is a large enough community of
Muslims.
While many of the issues addressed in this kind of Sharia court would
not fall under civil law, for example, how to celebrate Islamic
holidays in a non-Muslim country, some would. The obvious examples are
marriage, divorce and inheritance. Lawrence refers to a case where a
German court seems to have acknowledged fiqh regarding Islamic
marriages and issues of inheritance. The writer of the article takes
this to be deference to Sharia law, however, and I am not a lawyer, it
seems to me to be deference to the wishes of the dead man, as
evidenced by the dead man's commitment to a particular understanding
of Sharia. That is, if one wants to discern the intentions of a dead
man, one might refer to the beliefs he held as a guide. This is hardly
deference to those beliefs. In this way, where reasoning about
religious beliefs can contribute to settling civil disputes, I don't
see any problem with religious courts, whether Muslim, Jewish or
other, being adopted under a larger system of constitutional law.
These courts would not be a parallel legal system, since their
judgments are not legally binding beyond the authority granted by
civil law and not enforced by an authority outside of the state.
Finally, there are civil legal systems that are understood as being
Sharia, with Sharia civil laws. Examples of this would be found in
Saudi Arabia and Iran, and what I saw in parts of Indonesia. In Aceh,
Indonesia, it is the law that Muslim women have to wear the hijab and
that all Muslims observe Ramadan. This is obviously not the case in
Germany, Britain or any other Western country. However, Kern and
Lawrence both imply that this is or might be the case. A German court
recognizing that a Muslim man will have intentions that accord with
his religious faith is tantamount to instituting that faith as civil
law, leading inexorably to the excesses so gleefully noted by many
critics.
I think Lawrence and Kern are both badly mistaken about the so-called
threat of Islam in the West. First, it badly misunderstands Islam, and
in this case Sharia. Second, it vastly overestimates the unity of
Islam and Muslims, ignoring divisions and schismatic tendencies.
Muslims as a whole agree on very little, if anything, and the idea
that they represent a threat to anything or anyone except themselves
is to enter the realm of fantasy.
Individuals and groups of individuals can of course be dangerous, but
this has nothing to do with religion.
Sincerely,
Phil Enns
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