This article is part of an ongoing series that will examine what shari’ah is, how the media often get it wrong, and how it’s being used to create fear of Islam and Muslims and to justify continued military defense of “American values.”

by Najam Haider

The proposed construction of a mosque in the vicinity of Ground Zero in New York City has raised an outcry from a number of critics including (but not limited to) former Alaska Governor Sarah Palin and former Speaker of the House (and potential 2012 presidential candidate) Newt Gingrich.  In a July 28, 2010 article published by Gingrich in the conservative magazine Human Events, he writes:

Radical Islamism is more than simply a religious belief.  It is a comprehensive political, economic, and religious movement that seeks to impose Sharia – Islamic law – upon all aspects of global society.

He goes on to explain that Sharia “does not permit freedom of conscience” or “religious liberty” and is “explicitly at odds with core American and Western values.”  He then chronicles a phenomenon that he dubs “creeping Sharia” whereby government institutions refuse to implement the protections of American law in deference to this apparently draconian religious legal code.  Gingrich’s examples include (a) a court decision allowing a man to assault and rape his wife, (b) religious objections by Muslim students to a dog that was assisting a disabled student, (c) the suspension of a (non-Muslim) student in Minnesota who questioned the special privileges of his Somali (Muslim) classmates¹, and (d) a national rise in “Sharia honor killings – in which Muslim women are murdered by… male family members for dishonoring their family.”

To summarize, according to Gingrich, the Sharia is a religious legal code that contradicts notions of liberty and conscience while permitting Muslims to commit acts of violence (against both women and non-Muslims) and stifling any and all aspects of the freedom of speech.  Gingrich depicts the proposed mosque at Ground Zero as the culmination in this process of “creeping Sharia.”

A billboard in Detroit, 2008.

A number of writers/publications have highlighted the broader fallacies and xenophobic aspects of this argument.  To offer but a few examples, in a recent New York Daily News article, Edward Curtis elaborated on the history of Muslims (and Islam) in the area around Ground Zero while Parvez Ahmed shed light on the interfaith dimensions of the proposed mosque in a piece published in Common Ground, an online forum for public dialogue.  In this article, I am particularly interested in examining a central tenet of Gingrich’s claims, namely his definition and description of the Sharia.

Newt Gingrich is not the first public figure to invoke the term Sharia as referring to an inflexible and outdated legal code.  A glance through the New York Times, the BBC online, and countless other publications yields persistent references to this nefarious religious law in places as diverse as Malaysia and Somalia.  In almost every case, the Sharia is translated as “Islamic law” and defined as a set of laws derived from the Qur’ān which has remained unchanged for over a thousand years.  The problem with this definition is that the Sharia is neither Islamic law nor an inflexible, unchanging legal code from the 8^th century.

So what is the Sharia?  The concept has been explained (by Muslim scholars for over a millennium) as the human attempt to understand God’s will in a given place and at a given time.  Let’s pause and consider that definition for a moment.  It implies that the Sharia is a human process prone to error but one in which Muslims constantly strive to discover proper laws given the socio-political circumstances of their lives.  This allows scholars of different countries in a single era to construct fundamentally differing legal codes, all of which are technically considered Sharia.  Such was the case in the 16^th century when Muslim jurists in southern Spain developed a legal code appropriate to their particular circumstance, that of a community living underground in persistent fear of the Inquisition.  This code included provisions (e.g., with respect to judges, property, interactions with non-Muslims) that varied significantly from the rules that governed majority-Muslim states of North Africa.  The definition of Sharia given above also implies that it can change over time to reflect broader developments in society.  Thus most Muslim states increasingly restricted the institution of slavery while those with stronger matriarchal traditions (notably southeast Asia) steadily increased the scope and authority of women in the public sphere.² Significant legal transformations accompanied the rise of a Muslim empire in the 8^th and 9^th centuries, the decline of a central power in the 10^th century, the influx of Turkish and Mongol invaders in the 12^th and 13^th centuries, and European colonization in the 19^th and 20^th centuries.

The process of discovering the Sharia, however, is not completely open and arbitrary.  There are rules and procedures which limit and guide scholars in determining the actual will of God.  It is these rules and their accompanying methodology (referred to as fiqh or jurisprudence) which have remained relatively unchanged over the last millennium.  According to such guidelines, a scholar faced with a legal dilemma must first search the Qur’ān for a clear and definitive judgment.  This is rare because there is very little material in the Qur’ān that unambiguously lays out laws.  The scholar then turns to the normative practice of the Prophet in his life (known as the sunna).  While there are many accounts of what Muhammad did or said, the number of verifiable accounts is very limited.  Having exhausted these venues, the scholar begins the process of applying analytic reasoning (to the Qur’ān and the sunna) to “discover” the will of God.  It is at this step that jurists are able to shape the law in ways that fit the contemporary circumstances of their communities.

The scope of a scholar’s freedom to determine the Sharia had traditionally been very great, even in areas where the Qur’ān has seemingly established, clear guidelines.  In the case of murder and the associated Qur’ānic penalty of death, scholars historically required such clear and strict evidentiary standards that successful prosecutions were virtually impossible without a formal confession.³ The same can be said for the Qur’ānic rule that seems to require two female witnesses (as opposed to one male witness) for legal contracts.  In this instance, most scholars interpreted the law in a manner that preserved the legal equality of men and women in the court of law.⁴ The point being that even core concepts of Sharia have traditionally been flexible and malleable in the hands of skilled jurist.  The Sharia is not an ossified code of laws but rather a reflection of the values of the society it governs.  As that society changes, so does the Sharia.

To recap, fiqh is like a machine or a computer.  It is governed by a series of set procedures that must be followed in a specific order.  The jurist feeds the machine all the relevant data (i.e., the political situation, the societal context, the legal problem) and the machine yields an answer which is known as the Sharia.  This answer is shaped first and foremost by the needs and circumstances of the Muslim community in question.  Thus we find that in Iran (during the Iran-Iraq War in the 1980s), scholars ruled that the donation of organs was acceptable.  This was perfectly understandable given the desperate need for human organs to save the lives of soldiers.  At the same time, scholars in Pakistan (a country not in an explicit state of war) concluded that the donation of organs violated the sanctity of the human body.  Here we have two countries, facing the same question, using the same legal methodology, and coming to fundamentally different conclusions!

The Sharia continues to function as an organic part of many Muslim communities around the world.  Scholars are asked to deal with new situations and to apply their efforts towards determining the will of God.  Issues like birth control, organ donation, sex-change operations, abortion, and the right to die have yielded results that might surprise (or disappoint) Newt Gingrich.⁵ Thus most Muslim jurists have permitted abortion (with good cause) for the first trimester and debated (with some sophistication) the question of when an individual should be allowed to die.

The central problem that plagues the Sharia today surrounds its politicization by ideologically driven groups both in the United States and Europe as well as the Muslim world.  The actual factors at work in this dynamic are too complicated to discuss here⁶ but they have created a situation in which the Sharia has been misinterpreted (as Gingrich’s speech demonstrates) as a symbol of the backwardness of Islam.  Political opposition groups in the Muslim world have then taken this misinterpretation and placed it at the center of their ideological agenda.  The result is a general characterization of the Sharia as an ossified religious law that has remained unchanged for 1200 years.

An image from Born Again Redneck blog.

In the middle lie a majority of Muslims and their traditional scholars who continue to uphold (as best they can) a concept of the Sharia that is inherently flexible and highly responsive to the changing values of their societies.  The cases Gingrich highlights in his argument are certainly problematic.  Rather than providing any intrinsic insight into the Sharia, however, they reflect many of the tensions that arise when immigrant communities attempt to carve out niches in new unfamiliar societies.  But that is a topic for another day.

¹ The suspension was apparently a measure intended to protect the non-Muslim student from the threats of the offended Somalis.

² For examples of the latter, see John Bowen, “Qur’an, Justice, Gender (in Indonesia),” History of Religions, 38 (1998) 52-78.

³ This is elegantly demonstrated by Rudolf Peters who analyzed Egyptian murder prosecutions (under the Sharia) from 1848 to 1885, finding only 1 successful conviction out of 129 total cases.  See Peters, “Murder on the Nile” Die Welt des Islams, 30 (1990) 98-116.

⁴ M. Fadel, “Two Women, One Man,” International Journal of Middle East Studies, 29 (1997) 185-204.

⁵ Questions of medical ethics are particularly controversial amongst legal scholars as they require new reasoning and judgment.  For a good overview, see Islamic Ethics of Life, ed. G Outka and J. Brockopp (University of South Carolina, 2002.)

⁶ This process is clearly spelled out by Indira Gesink in an article published in The American Historical Review.

Najam Haider is an Assistant Professor in the Department of Religion at Barnard College.  His current research focuses on the identity politics of religious minorities in the early Muslim world.  He has previously taught at New York University, Georgetown University, and Franklin and Marshall College.