Sharia: The not-so-scary truth

Posted: January 27, 2012

What's so scary about sharia? According to a recent federal appeals court decision, not much.

A 10th Circuit U.S. Court of Appeals ruling this month effectively blocks implementation of Oklahoma's "Save Our State" constitutional amendment. Passed by 70 percent of the state's voters in 2010, the measure "forbids courts from considering or using sharia" - Islamic legal principles - as well as "international law." Similar laws have been enacted in Tennessee and Louisiana, and legislation is pending in at least 20 states.

The 10th Circuit affirmed a ruling by U.S. District Court Judge Vicki Miles-LaGrange in favor of Muneer Awad, executive director of the Council on American-Islamic Relations in Oklahoma, who had sued claiming the law violated his constitutional rights. The three-judge panel that issued the ruling agreed that the law expressly condemns only one religion, Islam, thus violating the First Amendment's establishment clause, which forbids the government from favoring any religion.

The appellate judges also suggested that the law is pointless: Its supporters admitted "they did not know of even a single instance where an Oklahoma court had applied sharia law."

The issue's salience in the United States is more symbolic than legal. Sharia sounds scary to lots of Americans. The irony is that many who think they are opposed to sharia would likely support many of its general precepts. They may be the same people, for instance, who want American judges and lawyers to pay more attention to the Ten Commandments - a kind of reasoning that is encouraged by sharia.

In his book The "Higher Law" Background of American Constitutional Law, Princeton professor Edward S. Corwin argues that American constitutional law was founded not only on the philosophical notions of the Enlightenment, but also on theological affirmations. In fact, he suggested, American jurisprudence rests on a deep ethic that is quite congenial to transcendent, "higher" reasoning.

At root, sharia asserts the same thing. This was what Archbishop of Canterbury Rowan Williams was trying to say when he provoked a firestorm by telling the BBC that "there are perfectly proper ways the law of the land pays respect to custom and community."

Granted, Western democracies and Muslim-majority nations have developed different customs regarding property (especially borrowing) and family life (especially monogamy and divorce). But similar contrasts could be found between American law today and American law a century ago.

In the vast majority of cases, there is no conflict between Islamic legal principles and the jurisprudence of English common law or American constitutional law. One reason is that the "higher law" backgrounds of the different traditions in fact share the same Abrahamic ethic.

Mustapha "Steve" Elturk, an imam in the Detroit area, has noted that sharia is a set of principles that guides Muslims to secure five "protections": faith, life, family, property, and intellect. In this sense, it's analogous to the "higher law" background of American constitutional law. The challenge is in the application. How exactly does one, for instance, apply the commandment "Thou shalt not kill"?

The sharia issue is bound to resurface in American politics. The way forward is to call out demagogues and allay fears. The debate over sharia might even help us define a clearer role for religious reasoning in public life.

Jon Pahl is professor of the history of Christianity in North America and the director of master's degree programs at the Lutheran Theological Seminary at Philadelphia. He is the author, most recently, of "Empire of Sacrifice: The Religious Origins of American Violence." He wrote this for the Common Ground News Service.

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