Why Shariah Law ?

Over at the NYT Magazine, Noah Feldman writes Why Shariah an article intended to analyze the attraction of Sharia to Muslims and to defuse some misconceptions regarding Shariah. He notes the outburst of outrage regarding the Archbishop of Canterbury Rowan Williams advocating that certain aspects of family law be placed under religious law; with the agreement of all parties. England has no separation of church and state, to begin with, but the idea that Muslims might utilize Shariah really didn't fly. Feldman is a professor of law at Harvard and a fellow at CFR, so he does have some credentials.

One thrust of the article is that Shariah is not what it is popularly considered, rather than an autocratic tool, it was originally a balance to the power of the state, the Caliph. A body of scholars interpreted Mohammed's teachings and applied them to the rules the caliph established. A succession to caliph also depended on the approval of those scholars. The benefit was that Islam's, at the time, rather liberal teachings regarding the people would be respected by government's more restrictive impulses. Historically, it was pretty successful. This accounts for some of the Muslim enthusiasm for it in the face of what passes for government in much of that world today. In actuality the burden of proof in some of the more Draconian measures was higher than some of ours today.

Today, though there are variations, no system that recognizes Shariah follows very closely the historical model. The author notes that there is an inherent weakness:

As one historian has recently put it, although Shariah functioned as a constitution, “the constitution was not enforceable,” because neither scholars nor subjects could “compel their ruler to observe the law in the exercise of government.” But almost no constitution anywhere in the world enables judges or nongovernmental actors to “compel” the obedience of an executive who controls the means of force. The Supreme Court of the United States has no army behind it.

I have a problem with one piece of that, the 2nd Amendment provides for the army in our Constitution, the people. Typical of the thinking that devalues that provision.

While this model may have historical attractions to Muslims, there are problems with it. The Ottoman Empire codified the teachings, essentially removing a living body, the scholars, from the picture. This not only froze the teachings at a particular moment, but also put them in the hands of the government. This gave the government not only the powers of interpretation, but also the authority of religion. A lack of codification allows the application of thought that reflects a changing world, but even in that it allows the institution of narrow and fanatical thought. This is once again, the abdication of citizen responsibility to an unelected and narrow body.

We do not in the narrowest sense, elect the Supreme Court, we do elect the people who nominate and approve them. The Supreme Court has a law based authority, and it has a law based restriction of reach. Decisions are based, or expected to be based, on a narrow field, the Constitution, a document that is subject to change, but with a very high bar to cross in that regard. While the Constitution is highly regarded, it does not have divine authority. It is recognized as a human effort.

The attraction of divine based decisions is obvious, they must be correct, god would make no mistakes. Despite your religious leanings, you will note that there is a human interface in these sorts of decisions. It is easy enough to draw a contract that recognizes a particular body as an arbitrator, if you have a desire to go in that direction.

The most obvious drawback to Sharia, or other, religious law is the lack of inclusion of other points of view. The fence between government and the citizenry is reduced to a single divine opinion. Rather than the citizenry being involved, a restricted and specialized body decides. The system becomes a reflection of that body. In this nation, the dominant religion is Christianity and some would have government become a reflection of that religion. Christianity has a great many permutations or sects, a much more complicated situation than in Islam with the simplest division being between Sunni and Shia. If you were to break Christianity into its simplest doctrinaire components you would have Catholicism, Protestantism, and Greek Orthodox which ignores completely the deep divisions within those. You have now ignored a large segment whose religious beliefs do not involve Christ and effectively eliminated the bar between Christianity and anything else along with ignoring the conflicts within that.

No one can reasonably make the argument that religion can not be formative of philosophy, to claim it as a basis for it is somewhat more suspect. This is the point of elections, to put people of philosophical and policy similarity into an office. Whether a religion has been formative of similarity in these is debatable as some recent scandals have shown. Use of religion as a short hand for values is extremely risky, it makes unfounded assumptions. Really, a better solution for government is to allow religion to function outside government and inform rather than bind the citizenry. The problem is creating a system with the type of respect a religion has within the secular arena and that is a huge challenge in the Islamic world.