Why Shariah?

A must-read article on Shariah in the NYT! I've wanting to post on this issue for a while. I don't have the background to be able to verify everything in the article, but as far as I can tell the historical facts are accurate, with a few minor expections. For example, Prophet Muhammad during his life ordered his followers to look to his Sunnah (in addition to the Quran) for guidance; it was not the Caliphs that came up with the idea (see this post for more on evidence for following Sunnah).

But back to the article, I think it offers a lot of food for thought, on the past, present and future of the application of Shariah. It's definately worth the read. Excerpts below:

In some sense, the outrage about according a degree of official status to Shariah in a Western country should come as no surprise. No legal system has ever had worse press. To many, the word “Shariah” conjures horrors of hands cut off, adulterers stoned and women oppressed. By contrast, who today remembers that the much-loved English common law called for execution as punishment for hundreds of crimes, including theft of any object worth five shillings or more? How many know that until the 18th century, the laws of most European countries authorized torture as an official component of the criminal-justice system? As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.

In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Shariah for a handful of offenses, we rarely acknowledge the high standards of proof necessary for their implementation. Before an adultery conviction can typically be obtained, for example, the accused must confess four times or four adult male witnesses of good character must testify that they directly observed the sex act. The extremes of our own legal system — like life sentences for relatively minor drug crimes, in some cases — are routinely ignored. We neglect to mention the recent vintage of our tentative improvements in family law. It sometimes seems as if we need Shariah as Westerners have long needed Islam: as a canvas on which to project our ideas of the horrible, and as a foil to make us look good.

...

So in contemporary Islamic politics, the call for Shariah does not only or primarily mean mandating the veiling of women or the use of corporal punishment — it has an essential constitutional dimension as well. But what is the particular appeal of placing Shariah above ordinary law?

The answer lies in a little-remarked feature of traditional Islamic government: that a state under Shariah was, for more than a thousand years, subject to a version of the rule of law. And as a rule-of-law government, the traditional Islamic state had an advantage that has been lost in the dictatorships and autocratic monarchies that have governed so much of the Muslim world for the last century. Islamic government was legitimate, in the dual sense that it generally respected the individual legal rights of its subjects and was seen by them as doing so.

...

The modern incarnation of Shariah is nostalgic in its invocation of the rule of law but forward-looking in how it seeks to bring this result about. What the Islamists generally do not acknowledge, though, is that such institutions on their own cannot deliver the rule of law. The executive authority also has to develop a commitment to obeying legal and constitutional judgments. That will take real-world incentives, not just a warm feeling for the values associated with Shariah.

...

Can Shariah provide the necessary resources for such a rethinking of the judicial role? In its essence, Shariah aspires to be a law that applies equally to every human, great or small, ruler or ruled. No one is above it, and everyone at all times is bound by it. But the history of Shariah also shows that the ideals of the rule of law cannot be implemented in a vacuum. For that, a state needs actually effective institutions, which must be reinforced by regular practice and by the recognition of actors within the system that they have more to gain by remaining faithful to its dictates than by deviating from them.

Continue here

Hijab tip: Huda Shaikh

NYT: End to a Shabby Prosecution

Full Editorial here, excerpts below:

The federal government agreed this week to terminate 20-year-old deportation proceedings against two Palestinian men who were wrongly targeted for their political beliefs and activities. Better late than never, but we fear that there is little hope that the Bush administration will learn any lesson from this shockingly mishandled prosecution.

The key allegation was that they had distributed a magazine published by the Popular Front and raised funds for lawful charitable organizations somehow linked to the group. Yet, fairly early on, the government conceded that it had no evidence that the two defendants had ever been involved in any criminal or terrorist activity — and that had they been citizens, there would have been no grounds for their arrest.

Unfortunately, that did not stop the government from obsessively pursuing the case under four presidents.

In January, Bruce Einhorn, an immigration judge, issued a ruling denouncing the long and winding prosecution as “an embarrassment to the rule of law.” He also castigated the government’s “gross failure” to produce potentially exculpatory and other relevant information.

It’s easy to see this case as a tragic anachronism, a relic from the bad old days of the Red Scare and cold war. But the Bush administration continues to risk injuring innocent people and deflecting resources from real terrorist threats with cases built on weak allegations of guilt by association.

Soldier at Guantanamo...



The following are some excerpts from the recent New York Times article about Lt. Cmdr. Mathew Diaz who defied his military superiors to give a voice to those detained at Guantanamo Bay. It's uplifting to know that there are people on the inside who are willing to break the rules to stand up for human rights.

“Well into the night of Sunday, Jan. 2, 2005, lt. Cmdr. Matthew Diaz sat alone at his desk in the headquarters of the American detention center at Guantánamo Bay, Cuba, consumed with a new project.”

“But the task that absorbed Diaz that night in January was taking him down a different path. Sitting at a secure desktop computer, he printed out page after page of classified information, pulling each batch from the printer in case anyone wandered by. When he was done, Diaz had assembled a document 39 pages long. In tiny type, it listed names, prison serial numbers and other information for each of the 551 men who were then being held by the United States at Guantanamo Bay.”

“Now, Diaz knew he was crossing a line. For nearly two weeks after printing the list, he kept it locked inside the safe in his office. On another late night, he carefully trimmed the pages down to the size of large index cards. Then, on Jan. 14, the last night of his tour, he went back to the office one more time. While his colleagues were getting ready for his farewell dinner, he slipped the stack of paper inside a Valentine’s Day card he had bought at the base exchange. It was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes and the greeting, “Hope Valentine’s Day is just your style.” Diaz would later say that he chose it because it was big enough to hold the list. He also hoped the lipstick-red envelope might pass unscrutinized through the Guantánamo post office.”

“It hardly occurred to the lawyers that someone inside the detention-camp headquarters might be trying to help them, Olshansky told me not long ago. For all the public debate about Guantánamo, there was little sign that members of the military were defying their superiors. Uniformed lawyers who had been assigned to defend some of the prisoners before military commissions had begun criticizing the rules for those tribunals, but that dissent was explicitly tolerated by the Pentagon. Some Muslim servicemen at Guantanamo, including an Army chaplain, Capt. James Yee, had been investigated on suspicion of disloyal conduct. But that episode and the others seemed to suggest more about the high-security atmosphere of the camp than it did about any internal opposition to how the prisoners were treated. The valentine was different: no one had taken the law into his own hands quite like this.”

“As he lay in bed at night, Diaz said, he thought about the risk he would be taking if he went ahead. Over the previous year, the military had prosecuted or disciplined several servicemen for taking classified materials off the island. Security had been tightened. The Guantánamo counterintelligence officer slept in the next bedroom of the town house Diaz shared with several midlevel officers. The career for which he had worked so hard would be on the line. He was within striking distance of a promotion to commander, or of retiring with an officer’s pension.”

“On May 18 this year, after a weeklong trial, a panel of seven naval officers convicted Diaz on four of five counts, including one of disclosing secret defense information that “could be used to the injury of the United States or to the advantage of a foreign nation.” By then, nearly two and a half years after Diaz had left Guantánamo, the politics of detention policy had shifted. The detainees’ names had been released under the Freedom of Information Act. The Supreme Court had ruled against the administration once more, upholding the minimum standards of the Geneva Conventions and derailing the military commissions. The president declared that he would like to close Guantánamo as soon as possible.”

Read on here: http://www.nytimes.com/2007/10/21/magazine/21Diaz-t.html?_r=1&oref=slogin