Shariah justice

by Doctor Science

Last week, the voters of Oklahoma overwhelmingly approved a state Constitutional amendment to prohibit judges from considering international or Shariah law. As Marcia Hamilton said on Findlaw (I believe sarcastically), this
seems to be Oklahomans' reaction to the demonic Taliban and al-Qaeda forces that are pledged to end our way of life and America itself [ominous music].

As has become customary, much of the rhetoric about "Shariah Law"[1] focuses on the legal status and treatment of women. In this case, one of the standard talking points is that "Shariah Law" mandates unjust wills, because it prescribes that, in dividing an estate each son should inherit twice as much as each daughter. The Muslim who has filed the initial lawsuit against the amendment is doing so on the basis that his will states "that his possessions be divided 'in accordance with the guidance contained in the prophetic teachings' of Islam" -- which pretty much makes the point for his opponents.

Echidne of the snakes said

I'm not certain if there is anything "especially nefarious" about the shariah laws when compared to other religious laws created during the middle ages, and that's when most of them seem to have been created. They all tend to give women fewer rights than men, though.

I'm more knowledgeable about Islam than Echidne, and I'll go further: before the Enlightenment, Islamic inheritance law, in particular, was in many ways *more* just and equitable than that current in Europe, and some Islamic legal creations have become part of the structure of Western law.

Once again, I'm going to be an explainer about Islam -- not an apologist, in the traditional sense, but more like an anthropologist: someone who tries to see and explain what other people get out of their culture. Once again, much of my understanding is based on Marshall Hodgson's The Venture of Islam. Read it and learn.

As with the Jewish and Christian revelations, one of the core concerns of the Qur'an and the Islamic canon[2] is justice: fairness, even-handedness, might does not make right. Nowhere is this clearer than in laws of inheritance.

Islamic inheritance is partitive (property is divided among the heirs) along a strict formula. What is important is not just that sons get more than daughters, but that all sons get the same amount. It's not just that daughters can inherit, it's that they *must*. The children must be treated equally and fairly.

In contrast, for the thousand years after Mohammed it was still the case in the Christian countries that a daughter had no expectation of inheritance whatsoever. In regions following Salic law, there were things (lands, positions) that she explicitly *could not* inherit, and which could not be inherited by her sons, either. In much of Christendom, primogeniture was the rule, a winner-take-all system where the eldest son got everything, and the other sons were almost as deprived as the daughters. In no Christian country would a widow automatically inherit her late husband's estate; she generally could only count on money given her by her family at the time of her marriage.

Islamic inheritance law stood out for its equitable treatment of women, and for its stress on not playing favorites among one's children. King Lear could be an object lesson in what Muslims are supposed to *not* do, and why. Inheritance should be equitable and even formulaic, not subject to a parent's whims or manipulations.

As Hodgson discusses, this also explains some aspects of Islamic family law. He points out that in pretty much *all* 'advanced' societies, upper-class men have the option of keeping and having children by more than one woman: that is, they may be de facto polygynous. Traditional Christian societies are de jure monogamous, which means that only one of those women (and her children) count: mistresses, concubines, slaves and their children are not entitled to support or inheritance. Christian marriage doesn't protect children in general, it ensures that some children (and their mothers) get preferential treatment, while others may be righteously neglected.

Among the Christians and Mazdeans (as in most societies), such wealthy men as maintained more than one woman had to accord special privileges to a primary mate and to her children. Among the Mazdeans, the secondary mates received some legal protection and their children might under some circumstances inherit. Among the Christians, the secondary mates had in principle no rights whatever and their children were stigmatized as mere bastards. ... The effect of the Shar'i rules on marriage was to accord up to four mates absolutely equal rights, which their children also shared in; the kept mistress or the free-born concubine disappeared, in effect, from among the ordinary privileged classes. Moreover, though the male was permitted to take his slave girls to bed (as normally happened wherever slavery itself was allowed), girls who became pregnant by him were granted privileges and their children, if recognized, had rights exactly equal to those of the children of regular wives.

The Christian system sanctified -- and under favourable circumstances surely fostered -- a solidarity of interest in a couple committed to a single marital union despite the temptations of wealth. The Muslim system sacrificed the primacy of conjugal unity in favour of equality of rights on the part of all concerned.

As with any religious system, Islamic principles have played out in various ways in real-world societies: sometimes leading to unintended consequences, sometimes to followers twisting the principle pretty much 180° to suit what they *really* want to do -- just like for Christian principles in Western society, in fact. But we need to acknowledge that one of those core Islamic principles is equal treatment under the law, and in families -- a principle our culture also claims to hold dear. Egalitarian democracy is not any further away from Islam than it is from Christianity; in both cases getting there takes some work.

As I've said, Islamic law dictates partitive inheritance, breaking up a man's wealth at his death. Naturally, some Muslim families (or societies) would want to get around this, to keep property together past one generation. The legal device they invented is called a waqf -- which became part of Western legal systems as the charitable trust or foundation. In Islamicate societies, hospitals and madrasahs (schools) were often supported by waqfs, and this pattern was copied by Europeans using the legal structures waqfs had pioneered. Muslim waqfs can also be set up to benefit a particular set of people -- such as one's children -- but the default is:

If he does not stipulate any conditions, then rich and poor, male and female, should be treated equally when given the benefits of the waqf.
...
If a person sets up a waqf for his children, he must treat males and females equally, because he has included all of them in that, which implies that they all have an equal share. Just as if he were to give something to them, it should be shared equally among them, so too if he sets up a waqf for them, they should have equal shares.

I gave the above quote so you can get a flavor for the emphasis on equality and even-handedness in Islamic law: it's not a modern interpretation, it's a constant refrain.

From the very beginning, women as well as men have been able to be trustees or managers of waqfs. In a number of Islamicate societies, widows in particular were able to have considerable power and influence by this means: waqfs usually ran the schools, hospitals, social services, and even urban water supplies, not to mention the mosques themselves.

I'm not saying these things because I'm a Muslim or a believer or even anyone who can read Arabic. I'm just sick of seeing significant parts of the US (the Oklahoma amendment was approve by *70%* of the voters) being force-fed a toxic mixture of fear, ignorance, and outright lies. It's possible to know better.

---

[1] As the Oklahoma Muslims point out, "Shariah law" is a misnomer. "Shariah" is roughly "all the rules or expectations for living a Muslim life"; the word for jurisprudence is fiqh.

[2] Muslim religion and law is not based only on the Qur'an; it also includes hadith, collections of oral traditions.

Comments

[russell]

I'm a bit late to this, but someone like Warren Jeffs seems just as twisted as al-Awaki

Here are a few fellows to check out.

Some of them are just loudmouths, some of them kill people.

All or nearly all of them live (or lived, some are dead) right here in the USA.

[DaveC]

I agree that Warren Jeffs is a very bad guy. But this part of the post

As Hodgson discusses, this also explains some aspects of Islamic family law. He points out that in pretty much *all* 'advanced' societies, upper-class men have the option of keeping and having children by more than one woman: that is, they may be de facto polygynous. Traditional Christian societies are de jure monogamous, which means that only one of those women (and her children) count: mistresses, concubines, slaves and their children are not entitled to support or inheritance. Christian marriage doesn't protect children in general, it ensures that some children (and their mothers) get preferential treatment, while others may be righteously neglected.

appears to suggest the opposite, that under Shariah, polygamy is permitted, therefore states should permit it. You could argue that the Okies aren't an advanced society, but they still have the right to vote agin it.

[Doctor Science]

appears to suggest the opposite, that under Shariah, polygamy is permitted, therefore states should permit it. You could argue that the Okies aren't an advanced society, but they still have the right to vote agin it.

Not how it works, dude. "Shariah law" (or Jewish law, or Biblical law, or international law) may be used, in states other than OK, for extra-judicial arbitration -- but it can't be used to do things that are *illegal* under US or state law. Did you truly think otherwise?

I quoted Hodgson's discussion of Islamic marriage law because polygamy is so often brought up as a way Islam is morally defective, compared to Christianity. The point Hodgson is making is that Christianity is *also* polygynous, biologically speaking. The difference between the two systems is not that traditional Christiana are monogamous, but that Christian men do not have to support all their mates and children equally.

[liberal japonicus]

DaveC, you asked for some examples of equivalent bad guys to al-Awaki. Jeffs is a perfect example because 1) it springs from Judeo-Christian roots and 2) it utilizes certain notions inherent with the Judeo-Christian tradition to sanction a host of henious behaviors. Furthermore, it is not like Jeffs was preaching about these things from some country far away, he was talking about it right here. Yet you wouldn't dream of questioning someone's Christian faith because of Warren Jeffs. Why the disparity?

[Slartibartfast]

Slartibartfast, you might like to check out seriously influential Northern Ireland politician and Protestant minister Ian Paisley

I know I probably don't need to say this, but the fact that someone, somewhere has an opinion on a topic doesn't make said opinion automatically part of church doctrine.

For certain values of "church", I have to say. Not all Protestant factions are identical, and "Presbyterian" isn't even close to exchangeable for "Lutheran". The latter of which itself is a wide, wide net. This guy appears to have founded his own branch of Presbyterianism. A small one, but he probably speaks for at least some of them.

[cleek]

under Shariah, polygamy is permitted, therefore states should permit it

Deut 25:5
If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not be married abroad unto one not of his kin; her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of a husband's brother unto her.

that is, under Biblical law, a brother is obliged to marry his dead brother's wife.

and the punishment:
Deut 25:9
then shall his brother's wife draw nigh unto him in the presence of the elders, and loose his shoe from off his foot, and spit in his face; and she shall answer and say: 'So shall it be done unto the man that doth not build up his brother's house.'

oddly. this doesn't happen.

[cleek]

(it is the punishment ... for failing to marry your dead brother's wife)

[Eric Martin]

They do what they do for the glory of Allah and with the intent of creating as many deaths of innocents as possible, the point of terrorism. I perceive them to be people of principle, prepared to die for the common good and convinced of their righteousness.

Marty, as envy pointed out, this statement is wrong on several levels:

1. Generally, radical Islamist groups do NOT do what they do for the glory of Allah. Further, most terrorists have only a very shallow religiosity, and little knowledge of Islam. They do what they do for political reasons, and in reaction to "The Narrative" of persecution.

2. The goal is NOT to create as many innocent deaths as possible. In fact, the goals are political, and in practice, killing soldiers is preferred to civilians because it fits in with the ideology/theology/narrative.

[Eric Martin]

appears to suggest the opposite, that under Shariah, polygamy is permitted, therefore states should permit it. You could argue that the Okies aren't an advanced society, but they still have the right to vote agin it.

I should point out that there is no one, agreed upon version of "Shariah Law." It has many, many interpretations, and not all of them agree on polygamy.