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January 23, 2012
Can a President call himself pro-religious liberty if he's anti-Muslim?
I have no doubt that Newt Gingrich would be a strong advocate for defending the religious liberties of Catholic groups currently threatened by Obama administration policies. When it comes to the religious liberties of Muslims, though, Gingrich takes a sharp turn toward intolerance.
[A]sked if he would ever endorse a Muslim running for president[,] "It would depend entirely on whether they would commit in public to give up Shariah," Gingrich said.
Let's get this straight: you're welcome to participate in our public life if you "give up Shariah." Sounds like the sort of treatment given to Rocco Buttiglione by the EU (and rightly criticized by many conservatives). Or consider this piece of red meat he happily threw out to voters:
Gingrich also called the Ground Zero mosque "a deliberate and willful insult to the people of the United States who suffered an attack by people who are motivated by the same thing."
What exactly is the "same thing" that motivated the 9/11 hijackers and Muslims who want to have a mosque near their homes and places of work? Is it the "same thing" that motivates Catholics and abortion clinic bombers? We must resist efforts to paint religious believers with a single broad brush. When it comes to Muslims, Gingrich appears ready to do just that.
Is Gingrich anti-Muslim? Well, he does generously concede that "A truly modern person who happened to worship Allah would not be a threat." It is "a person who belonged to any kind of belief in Shariah, any effort to impose it on the rest of us, [who] would be a mortal threat." So are religious believers welcome to participate in public life in Newt Gingrich's America? Yes, as long as you're "a truly modern person" who just happens "to worship Allah." Not reassuring.
Posted by Rob Vischer on January 23, 2012 at 03:30 PM in Vischer, Rob | Permalink
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"'It would depend entirely on whether they would commit in public to give up Shariah,' Gingrich said."
I wonder if Newt would commit in public to give up Canon Law (assuming he even knows what that is).
As for the Ground Zero Mosque, I don't think Newt knows the difference between Sufi Muslims (the folks seeking to build the mosque) and Wahibbi Muslims (the Calvinists of the Islamic World) who killed on 911. Actually, one wonders if Newt really even cares.
Posted by: CK | Jan 23, 2012 4:44:37 PM
The issue of Shari'a is a very vexing one for those on the Catholic tradition. It is not so difficult for Christians from a Puritan tradition. To be a Muslim is to be in a very real sense a "Soldier for Allah." For us the admonition of Jesus to Peter is a final judgement that God has no need of soldiers, taking "soldier" literally, and we are not prepared to deal with the opposite ideology.
There is in our history a comparable clash of ideologies. Islam is simply Puritanism. Puritanism is the conviction that the faithful are God's agents in the world, called to perfect the world. It becomes militant when that call is understood to mean "called to perfect the world by any means necessary." It is no accident that puritanism has roots in Christianity too, because Calvin was the last disciple of the Anti-pope Cardinal de Luna. He was a Spanish prelate and in effect, as a result of the syncretism that had infected the Church in Spain, a Muslim. He was certainly a Christian man, but many Islamic ideas like pre-destination and puritanism had crept into his theology.
The logical premise of puritanism is that God has sent us into the world to fend for ourselves; God is a remote, deistic god. For Christians, God is a personal, theistic god who is with us always. As a result we reason that we are not on our own here. We are with him at all times. We are called to live his call to life in the world, but it is for him to decide what he will do with us.
As far as practical advice on how to coexist with Muslims, we need I think two attitudes. both of which come from our conviction that we and they share a common moral law. What we can expect of Muslims is that they be true to their morality, which includes the commandments. Their prception, by the way, is that what differentiates Muslims and Christians is that Christians talk a good game: that Muslims are different because they actually observe the commandments that we only pay lip service to. You don't have to agree with them to recognize that we should take that proposition to heart. There is a genuine nobility in Puritanism.
On the other hand, we have to insist on limiting the call to live morally. Shari'a is far more prescriptive that Christianity, because it is puritanism. Our Islamic neighbors have to accept that Shari'a is not the law in America, and will never be the law. The way to bring that truth home in a most productie way is to make sure we frame what really is the law -- the Natural Law -- and to invite them within its broad compass. If the example of Averroes and Avicenna means anything, it is that that can be a common point of departure for us and them.
Posted by: Joel Clarke Gibbons | Jan 23, 2012 4:46:08 PM
If, by shariah (the thing he wants given up), Gingrich means the government imposition of fines and other second class status on non-muslims, would you agree that a POTUS could not swear an oath to upholding the US Constitution while simultaneously advocating government fines because people are non muslim? Or do you, or Gingrich, mean something else by either shariah, or by "giving it up"?
Posted by: Matt Bowman | Jan 23, 2012 10:10:25 PM
I'm hardly a Gingrich supporter. He's an odious excuse for a human being and it's a sad day when this man could even be considered by anyone as the standard bearer of conservatism. But I have to say I've puzzled over this post on and off for much of the day. What would being "for" Sharia look like exactly? Could Rob Visher say he actually supported forcing women to have second-class status? Is he in support of forced conversions to Islam or executions of those who will not convert? Would he support the execution of women found guilty of adultery? Does Mr. Visher endose honor killings? Polygamy?
And if not, does that make Mr. Visher religiously intolerant?
Posted by: Greg Popcak | Jan 23, 2012 10:12:08 PM
Matt & Greg: I'm not aware of any American court that has applied Sharia law in the ways you reference, nor am i aware of any serious argument by American Muslims that they should. Sharia appears to be most commonly invoked in contract disputes - marital and commercial - regarding treatment of property, though it can also crop up in probate. If a Muslim is required to "give up Sharia," I'm guessing that his first reaction is not, "Oh no, now I can't impose fines on non-Muslims!" If a litigant or office-holder sought to use Sharia to justify murder, that move would fail because of our clear legal prohibitions against murder. The source of the purported justification adds nothing to the act's illegitimacy, whether it's based on Sharia, biblical interpretaion, or the movie Taxi Driver. We should not construct a legal response to an entire religion's normative framework based on extreme examples that show no signs of making inroads in our legal system.
Posted by: Rob Vischer | Jan 23, 2012 10:51:05 PM
Dear Rob,
The practices and rulings you concede are part of Shari'a. To assume the authority to pick and choose the Islamic laws we will accept is to reject Shari'a. There is no way around it. You reject Shari'a. For good reason, we all agree. Your little-bit-here-little-bit-there approach would not be accepted by any iman worth his salt.
It is acceptable however on the following terms. Common law, and Americanlaw at least traditionally, accommodated any sort of conflict-resolution method that the parties could agree to as long as it was not against public policy. So two Muslims could agree to use Shari'a rules to settle contact disputes between them. Any court would enfore that agreement as part of the entire contract. We don't enforce Shari'a, we enforce contract terms on parties to the agreement. As American law becomes increasingly hard and fast and intrusive, the scope for private contract is narrowed dangerously, but that is a problem not for Islam, it is a problem for the rights of Americans as free people.
We can esaily accommodate Islam and its rules in many ways. Nonetheless, there will be conflicts, just as there were from time to time conflics between Catholics and Calvinists in Europe. When those conflicts arise it will be expecially important to see them as contention between particular parties, and not as between "Christians" and "Muslims" in total. We should be able to keep that cool. No one would think that if I were to rob your bank and clean out the safe it would be yet another indication of the inevitable conflict between Irish-Americans and the rest of you.
Posted by: Joel Clarke Gibbons | Jan 24, 2012 8:10:29 AM
I understand the disagreements people are having with Rob here, but I tend to agree with him. On the Sharia point, I understand the argument that "true" Sharia is an all-or-nothing proposition, and I find interesting the discussion of Puritan vs. non-Puritan approaches to religion and civil life. But as a matter of practical fact, there are American Muslims who might be willing to arbitrate aspects of a contract under Sharia without accepting every aspect of Sharia, including those aspects that would violate common contemporary mores and/or public policy. One can call them bad Muslims or say this is not really acceptance of Sharia, but I am not inclined to fight that battle, just as I am not generally inclined to make arguments as to who is or isn't Catholic (as opposed to who is a good or bad Catholic) on the basis of the nature and quality of their commitment to particular doctrines. I would rather leave that to mostly intramural debate. And I would note that 1) some states have deliberately aimed at banning the use of Sharia even as a matter of "enforcement of contract terms," and 2) the first generation of those laws were aimed specifically at Sharia, and not at other religiously derived contract terms.
The Ground Zero Mosque issue seems much more cut-and-dried to me, but I'll stay out of that conversation.
Posted by: Paul Horwitz | Jan 24, 2012 8:46:07 AM
Re: "To assume the authority to pick and choose the Islamic laws we will accept is to reject Shari'a."
I'm afraid that's wrong, and it's an untenably "legalistic" rendering of Sharī’ah. Cf.:
Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper or righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one’s life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. Fiqh involves the human process of understanding and implementing the divine law or revelation (wahy), and thus is at least one remove from the latter inasmuch as it is the corpus juris developed by the various legal schools, individual jurists and judges in the Islamic tradition. It is a serious (religious, epistemological, ontological, ethical…) yet common mistake to conflate Sharī‘ah and fiqh, or to use these terms interchangeably or as synonyms, particularly when we appreciate the metaphysical or theological nuances of the former concept apart from its positivization through the rituals and laws in the Islamic world throughout history.
The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will.’ Thus Sharī‘ah is by definition always fair, just and equitable, whereas fiqh might be described as the all-too-human attempt at approaching, through positive law, the ‘ideals and purposes’ of Sharī‘ah (maqāsid al-Sharī‘ah). ‘The conceptual distinction between Sharī‘ah and fiqh is the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God’ (Abou El Fadl). The metaphysical and theological function of Sharī’ah is, in some respects at least, analogous to that of Natural Law theory and formulations among the Stoics and later religious and secular Natural Law doctrine as it developed from Aquinas, Grotius, and Pufendorf (we may in fact be dealing with more than an analogy here: cf. Anver M. Emon’s Islamic Natural Law Theories, 2010). As described by the legal theorist Mark Murphy, natural law in general is ‘the view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules.’
As several scholars have pointed out, there’s been a tendency among both Muslims and Orientalists in the modern and post-modern periods to ‘overlegalize’ Sharī‘ah, and thus Hashim Kamali rightly observes: ‘It is questionable whether Islam was meant to be as much of a law-based religion as it is often made out to be.’ With regard to Islamic spirituality, Sharī‘ah in the first instance is concerned with (1) faith in God (īmān), (2) the five pillars of praxis (al-arkān al-khamsah), and (3) the manner of worshipping God (‘ibādāt, or ‘devotional matters’). Sharī’ah is also said to be concerned with the protection and promotion of ‘five essentials’ (al-daruriyāt), namely, life, religion, property, intellect and family. These ‘five essentials’ are what in natural law theory is referred to as ‘basic goods,’ and different natural law theorists, from Aquinas in the Middle Ages to Mark Murphy and John Finnis (Catholic natural law philosophers) today, likewise have lists of ‘basic goods’ natural law is designed to protect and promote. For example, the goods Aquinas mentions are ‘life, procreation, social life, knowledge, and rational conduct,’ and Finnis cites ‘life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion.’ It’s clear there’s some overlap here with the basic values and goods found in the Islamic tradition.
For the rest of this introduction, please see here: http://www.religiousleftlaw.com/2011/03/shar%C4%ABah-toward-a-philosophically-sensitive-introduction.html
Posted by: Patrick S. O'Donnell | Jan 24, 2012 8:46:41 AM
Dear Patrick,
This is precisely the kind of dialog that defuses conflict and separatism. My point about inevitable conflicts is obviously an observation that some Muslims may not want to sing from the same hymnal as the ones you reference. People differ, and some will differ in hostile ways. It appears that early in the history of Islam the kind of rationalism you reference was the norm. I think the famous conversation between St. Francis of Assisi is an example of this. The alleged fanaticism of radical Islam was historically the reaction to the Mongol -- under Genghis and Tamerlane -- destruction of the Caliphate.
The legal trend that disturbs me in this regard has nothing to do with Islam, it has to do with the Totalitarian trend of American law and government. In a three-way standoff of Christianity, Islam, and Atheism, the most conflict-prone link is the clash of the latter two. There is an historical referent for this:
At the time of Muhammed, the Persian Empire (technically, the Second Empire, the Sassanid Empire) was at its height, and the Emperor of Persia invaded the Near East, driving all the way to Palestine. Muhammed arrived with his army at the moment that the Persians were on the verge of vanquishing the Palestinian Christians. Without hesitating, he threw his troops into the battle, saying that it was the duty of Muslims to defend the Christians. The Persians were defeated and never again threatened Palestine.
We will see how it all shakes out, but to repeat a comment, there is a genuine kind of nobility in Puritanism.
Posted by: Joel Clarke Gibbons | Jan 24, 2012 9:22:09 AM
If you're going to walk back from the headline in the last paragraph, shouldn't you change the headline?
Posted by: Mark | Jan 24, 2012 12:56:47 PM
Thanks for your post, Rob. A few of us at The Becket Fund have written on why extending religious liberty to Muslims--including granting American Muslims the right to resolve disputes under Sharia law--is not only the right thing to do, but also not as scary as some make it seem.
Allowing Muslims to "establish Sharia courts" sounds scary to many. But it should be no more controversial than "allowing" rabbinical courts, canon law tribunals, or evangelical mediation ministries.
Courts will not always accept the decrees of Sharia tribunals, just as they can override arbitration clauses or the outcome of arbitration where the process or judgment seems unjust.
For more information on how our courts *already* "recognize Sharia law," here are editorials written by Luke Goodrich, another attorney at the Becket Fund, and myself:
Sharia across the pond (http://www.guardian.co.uk/commentisfree/belief/2009/jul/06/sharia-courts-us-islam)
Are American Muslims Entitled to the Same Free Exercise Rights as Other Americans? (http://www.huffingtonpost.com/eric-n-kniffin/are-american-muslims-enti_b_867777.html)
Posted by: Eric Kniffin | Jan 24, 2012 1:04:06 PM
I am not worried about Muslim religious liberty. They are quite aggressive. Also they don't respect the religious liberty of Christians. The real threat is against the liberty of Christians by both Muslims and Secularists like Obama.
Posted by: Fr. J | Jan 24, 2012 1:19:37 PM
Muslims have always had the right to resolve disputes by means of any method that is not substantively in violation of public policy. As long as the resolution does not violate American law, they have always been free to settle their disputes in that way. Furthermore, if it pleases them to do the resolving down at their friendly neighborhood Shari'a court, why not. They are even entitled to hold the proceedings in Arabic or any other language of choice, as long as it is a free choice of all interested parties. In short, Americans have freedom, and among their cherished freedoms is the freedom to settle disputes as they arise, and if it helps them to come to terms they are free to consult any book of choice, including but not limited to Winnie the Pooh. This is freedom. Americans are free. And they are not merely free, they are positively encouraged to settle disputes without troubling the busy courts. I must say that I find it a little disturbing that this seems to be a controversial accommodation to the followers of an American law blog site.
Posted by: Joel Clarke Gibbons | Jan 24, 2012 1:58:27 PM
Very well put, Joel.
Posted by: Eric Kniffin | Jan 24, 2012 2:07:43 PM
Joel, that could be because sharia courts tend to have draconian punishments. They are a wedge issue. Do you think a woman who is treated as a chattel will be "free" to decide on a sharia court? No one suggests that canonical courts should take over for Catholics. They only decide issues in a very narrow sense in regard to the sacraments and internal matters of faith. The state does not recognize their authority to annul marriages. There is only one law of the land in the US. I may not always like that law, but I do not advocate destroying the system. Sharia law will in the end to precisely that.
Posted by: Fr. J | Jan 24, 2012 5:48:40 PM
Fr. J,
I think there's an echo in here. That was my initial point. Muslims are free to use Shari'a for any purpose except in violation of the law. "Our" law, the law that presides in our courts and that is applied by our judge, is the only law in America.
No one has the right to insist that his cause be judged by Islamic law, but if two men agree to have their agreement interpreted according to a rule that coincidentally appears in some book of Islamic law, that is for them to decide. It's none of our business.
Posted by: Joel Clarke Gibbons | Jan 24, 2012 6:23:12 PM
So is there general consensus here that parts of shariah like certain non government dispute resolution would be fine, and parts (such as components that violate religious freedom of nonmuslims) could not be accepted in substance by any person consistent with their obligations to uphold the constitution? On Newt, I guess that just leaves us with him being technically correct but engaging in demogoguery?
Posted by: Matt Bowman | Jan 24, 2012 11:03:24 PM
Matt,
I think so, but with one proviso. It isn't Shari'a as a medium of dispute reolution that is okay, it is Anything, when it is working to facilitate dispute resolution, that is fine. In America, Shari'a is just someone's opinion, admirable in some cases and potentially offensive in others.
Posted by: Joel Clarke Gibbons | Jan 25, 2012 7:10:50 AM
Muslims have as much right to propose legislation and to argue in court for legl principles of Shari'a, just as Professor George has the right to propose and to argue for the principles of Natural Law. There remains however only one -- or two including precedent -- way that anything becomes law in America.
Posted by: Joel Clarke Gibbons | Jan 25, 2012 7:50:32 AM
