Shariah and America

Warren Coats Contributor
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Should an Islamic community center and mosque be built a few blocks from the site of the collapsed World Trade Center in New York? The American Center for Law and Justice (ACLJ) doesn’t think so. In a lawsuit brought against the New York Landmarks Preservation Commission last week, that the Commission did not adhere to proper procedure when it refused to designate the property on which the facility would be built an historic landmark. The basis for requesting historic landmark status was that some of the debris from the World Trade Center fell on it. The Commission’s unanimous ruling preserves the right of the owners of the private property to permit Feisal Abdul Rauf and his wife, Daisy Khan, who Time magazine characterize as “modernists and moderates who openly condemn the death cult of al-Qaeda and its adherents” to proceed with their intention to build the Cordoba House Islamic Cultural Center there. Score one for private property.

According to Jeffery Goldberg, writing in the Atlantic:

“Feisal Abdul Rauf, is an enemy of al Qaeda, no less than Rudolph Giuliani and the Anti-Defamation League are enemies of al Qaeda.  Bin Laden would sooner dispatch a truck bomb to destroy the Cordoba Initiative’s proposed community center than he would attack the ADL, for the simple reason that Osama’s most dire enemies are Muslims…. He represents what Bin Laden fears most: a Muslim who believes that it is possible to remain true to the values of Islam and, at the same time, to be a loyal citizen of a Western, non-Muslim country. Bin Laden wants a clash of civilizations; the opponents of the mosque project are giving him what he wants.”

The bigger picture, however, is the serious damage this controversy has done to our struggle to contain al Qaeda and radical Islamists. Our enemies are radical Islamists. Success depends heavily on our ability to isolate these extremists from the broader Islamic community of which they claim to be a part. The hypocrisy of the ACLJ, which in the past has filed suits “that argue that religious freedom trumps land use laws,” though obvious, is not the issue. The damage comes from the clear message to the world’s 1.5 billion Muslims that many Americans blame all Muslims for the terrorist acts of a handful of political fanatics claiming to act in the name of Islam. ACLJ attorney Brett Joshpe told The Daily Caller:

“Would I be personally involved in this matter if this were a church? No. And the reason why is because if it were a church it wouldn’t be offending and hurting the 9/11 victims’ families”

Score one for transparency, ugly though it is.

Too many Americans who should know better have taken up an unwarranted and unhealthy attack on Islam.  Consider the claims of some that shariah law violates American law and basic American principles. There are several strains to this argument.

One strain is that shariah law is foreign and that it is some how inappropriate to permit or give any scope to foreign laws in America. This misunderstands the nature of common law, which is the continuous discovery of a natural law that reflects people’s expectations of proper behavior between people.  In their compelling book, Money, Markets, & Sovereignty, Steil and Hinds present some of the history of the absorption of foreign law into our domestic laws.

“The hugely important Lex Mercatoria, or the international “laws merchant,” which developed privately and spontaneously to govern commercial transactions, dates from the twelfth century, before the consolidation of states….  The Lex Mercatoria was absorbed into English common law in the seventeenth century, where judges, who were paid out of litigation fees, initially treated it with some contempt. Competition from continental civil law countries, however, which frequently proved more accommodative to the Lex Mercatoria, ultimately forced English judges to recognize commercial custom in international trade in order to attract cases. In the United States, widespread early adoption of the practice of commercial arbitration, as well as the history of state jurisdictional competition, contributed to greater acceptance of the Lex Mercatoria than in England. The U.S. Uniform Commercial Code thus reflects the fact that business practice and custom are the primary source of substantial law.”

Score one for common law.

A more serious claim, voiced for example by author and lecturer Nonie Darwish, is that “the goal of radical Islamists is to impose sharia law on the world, ripping Western law and liberty in two.”

According to Newt Gingrich:

“radical Islamists are actively engaged in a public relations campaign to try and browbeat and guilt Americans (and other Western countries) to accept the imposition of sharia in certain communities, no matter how deeply sharia law is in conflict with the protections afforded by the civil law and the democratic values undergirding our constitutional system.”

Gingrich cites a New Jersey state judge ruling in June 2009 that “rejected an allegation that a Muslim man who punished his wife with pain for hours and then raped her repeatedly was guilty of criminal sexual assault, citing his religious beliefs as proof that he did not believe he was acting in a criminal matter.”

This behavior obviously violates American law and core values and an appellate court overturned the judge’s outrageous ruling. But this does not imply that Muslims should not be permitted to observe other (in fact most) provisions of shariah in America if they chose too. It also fails to take account of the fact the shariah law, which largely deals with requirements of personal behavior such as daily prayer (salāh), fasting in Ramadan (sawm), the pilgrimage to Mecca (haj), charity (zakāt), a tax of 20 percent on untaxed, annual profit (khums), and struggling to please God. (jihād), is subject to interpretation by Muslim scholars. Traditional shariah has five main schools of interpretation. In this respect it is rather like the Christian Bible, which is subject to different interpretations by different Christian scholars and denominations. Similarly some of the more extreme and cruel teachings of the Bible are broadly rejected by Christians (and American law).

Rowan Williams, the Archbishop of Canterbury stated the issue well in a strangely controversial lecture on “Civil and Religious Law in England: a Religious Perspective” delivered at the Royal Courts of Justice February 7, 2008.

In a BBC Radio 4 interview the same day the Archbishop elaborated that:

“‘as a matter of fact certain provisions of sharia are already recognised in our society and under our law.’

When the question was put to him that: ‘the application of sharia in certain circumstances – if we want to achieve this cohesion and take seriously peoples’ religion – seems unavoidable?’, he indicated his assent”

“In his lecture, the Archbishop sought carefully to explore the limits of a unitary and secular legal system in the presence of an increasingly plural (including religiously plural) society and to see how such a unitary system might be able to accommodate religious claims. Behind this is the underlying principle that Christians cannot claim exceptions from a secular unitary system on religious grounds (for instance in situations where Christian doctors might not be compelled to perform abortions), if they are not willing to consider how a unitary system can accommodate other religious consciences. In doing so the Archbishop was not suggesting the introduction of parallel legal jurisdictions, but exploring ways in which reasonable accommodation might be made within existing arrangements for religious conscience.”

Score one for common sense.

The level of ignorance or in some cases deliberate misinformation in an effort to tarnish all Muslims as enemies of decent, freedom loving Americans, can be illustrated by attacks on shariah compliant mortgages (or shariah compliant financial instruments more generally).  The Royal Bank of Canada, which offers such products to those who want them, explains the background of their shariah compliant mortgage products as follows:

“Shariah law is interpreted on a case-by-case basis by recognized scholars of Islam. It forbids usury, including payment or receipt of interest on monies borrowed or invested. As such, a traditional commercial mortgage would not be a Shariah-compliant way to fund a property purchase.”

The resulting mortgage contract has followed the guidance of the Shariah Supervisory Board.  Shariah-compliant financial instruments are equity rather than debt, producing, hopefully, profits rather than interest payments. Funds may not knowingly be invested in certain “unethical” activities or products such as gambling, alcohol and the consumption of pork. In this respect this instruments are reminiscent of Green investment funds. You might or might not be interested in such funds, but they hardly represent a threat to the American Way of Life.  Shariah compliant mortgages charge no interest, but establish a rent-to-own agreement that has a very similar end result to a conventional mortgage. If the label “Islamic” or “shariah compliant” where not attached to such mortgages, their critics might embrace them as a neat idea. Score one for sound finance.

Balancing faithfulness to our respective personal religious beliefs and practices with the requirements and laws of commercial, social, and political life can be a challenge, but America does it better than most countries to our great benefit. We have no reason to be at war with Islam. Those who give the impression that we should be are serving Bin Laden’s goals. Those Muslims, or anyone else, who are not willing or able to live in America and practice their religion within the limitations of our laws and traditions are not welcomed here and should not come. Those who attempt to make Islam and its believers into our enemies are not welcomed either.
Warren Coats retired from the International Monetary Fund in 2003, where he led technical assistance missions to central banks in more than twenty countries. His most recent book, “One Currency for Bosnia: Creating the Central Bank of Bosnia and Herzegovina,” was published in November 2007. He has a Ph.D. in economics from the University of Chicago and lives in Bethesda, Md.