Sharia, Halacha and the American Constitution ~via Oz Sultan
I met Oz in 2008 via a mutual friend, Roger Hollander. Roger and Oz introduced me to Twitter, educated me on the value of emerging social media platforms, and helped me brainstorm and implement unique social strategies at E.L.F. Beauty… I have been forever grateful. Oz and I don’t always see eye-to-eye politically, but I truly value his perspective and insights. Please read his important post I’m sharing here. /Ted
There is an argument happening in America about Sharia that is missing a fairly basic piece of information.
A lot of the people talking about Islamic law do not appear to know very much about jurisprudence.
That is a problem because there is a legitimate conversation to have about Islam, religious law, constitutional government, political Islam and the limits of religious authority in a democratic society.
But we cannot have that conversation honestly if we begin with the assumption that Sharia is simply the Islamic equivalent of a foreign political constitution.
It isn’t.
There is a much better comparison available to Americans.
Halacha.
I write this as an American Muslim, who grew up in Pittsburgh, and as someone who attended Yeshiva for two years, as a kid (we didn’t have Muslim schools in the 80s).
Most Americans understand that observant Jews may follow Halacha, Jewish religious law, while simultaneously living completely within American constitutional and state law.
What is less widely understood is that New York has long permitted religious communities to use private arbitration to resolve certain disputes, including arbitration before a Beth Din, a Jewish religious tribunal.
That is not a competing legal system.
It is an example of American law accommodating voluntary religious practice.
And that distinction is exactly what is missing from much of the discussion about Muslims in America.
Religious law and American law are not the same thing
Sharia is broadly understood as the divine path or framework through which Muslims seek to live according to God’s guidance.
Fiqh is different.
Fiqh is jurisprudence; the human effort to understand, interpret and apply those principles.
That distinction matters because fiqh contains disagreement.
There are schools of jurisprudence.
There are different methodologies.
There are competing interpretations.
There is debate over how principles apply in different circumstances.
Islamic law is therefore not simply a single statute book handed to every Muslim government with a universal instruction manual.
The Jewish tradition has an analogous distinction in the concept of Halacha.
Halacha developed through scripture, rabbinic interpretation, legal reasoning, precedent and centuries of debate.
Neither tradition is simply one rule.
Both contain bodies of jurisprudence through which religious communities reason about how they should live.
That is the comparison Americans should understand.
We already accommodate this in America
Consider the Jewish community.
An observant Jewish family may structure parts of its life according to Halacha.
It may observe Shabbat.
It may follow the laws of kashrut.
It may eat kosher meat.
It may consult a rabbi on religious questions.
And in some circumstances, members of the community may voluntarily agree to have a dispute heard before a Beth Din according to Jewish law.
However, New York law does not transform the Beth Din into a government court.
Instead, it recognizes the voluntary arbitration agreement under the state’s ordinary arbitration framework.
New York’s CPLR §7501 provides that a written agreement to submit a dispute to arbitration is enforceable and gives state courts jurisdiction to enforce the agreement and enter judgment on an arbitration award. (NYSenate.gov)
New York courts have repeatedly recognized agreements to submit disputes to a Beth Din. In one case, the state’s courts specifically recognized the enforceability of an agreement to refer a religious dispute to a Beth Din and explained that the courts can enforce the secular contractual obligation without deciding whether the underlying religious doctrine is correct. (New York Courts)
That is an important constitutional distinction.
The state is not saying that Halacha is New York law.
The state is saying that two people can voluntarily enter into an arbitration agreement, and if that agreement satisfies the requirements of state law, the resulting award may be enforced through the ordinary judicial system.
The religious tribunal supplies the arbitration.
The secular court supplies the legal enforcement mechanism.
That is a very American arrangement.
The Beth Din is not a parallel government
This distinction is worth making because the phrase “religious court” can be misleading.
A Beth Din can function as a religious tribunal.
But it does not possess sovereign authority over New York.
It cannot send someone to prison.
It cannot override the Constitution.
It cannot exercise governmental police power.
Its authority comes from the parties’ agreement and the legal framework governing arbitration.
New York courts have described a Beth Din as a religious tribunal that adjudicates disputes according to Jewish law and custom. (New York Courts)
That is very different from saying that New York has delegated its judicial sovereignty to rabbis.
It has not.
The parties voluntarily choose arbitration.
The state remains the state.
The Constitution remains the Constitution.
And the courts retain the authority provided by arbitration law to deal with enforcement and challenges to awards.
This is the part of the American system that is often misunderstood.
Religious freedom does not require religious communities to abandon their internal traditions.
It requires the government to protect their freedom to practice those traditions while maintaining the supremacy of civil law.
So what does this mean for Muslims?
The same principle should apply.
A Muslim family should be able to live according to its religious beliefs.
It should be able to eat halal food.
It should be able to consult an imam or Islamic scholar.
It should be able to make voluntary family decisions informed by Islamic principles.
And, where the law permits private arbitration, Muslims should be able to voluntarily agree to have certain civil disputes resolved through an Islamic arbitration forum.
That does not mean that Sharia becomes the law of Pennsylvania, New York or the United States.
It means that Muslims are allowed to organize aspects of their private lives around their faith in the same way that other religious communities do.
There is already a particularly straightforward example in food.
New York has specific laws governing halal food and halal certification. The state regulates how food may be represented as halal and requires information concerning the person certifying halal food in specified circumstances. (NYSenate.gov)
New York has comparable provisions governing kosher food and kosher certification. (NYSenate.gov)
Nobody looks at those laws and concludes that Halacha has replaced New York law.
Nobody should look at halal regulation and conclude that Sharia has replaced New York law.
The state is regulating commerce and protecting consumers.
The religious community supplies the religious standard.
That is religious accommodation within a secular legal system.
The real comparison is Halacha and fiqh
This is why I prefer comparing Halacha with fiqh rather than comparing Sharia with kashrut.
Kashrut is one component of Jewish religious law.
Halacha is the broader jurisprudential tradition.
Likewise, Islamic dietary rules are one component of a much broader Islamic legal and ethical tradition.
Fiqh is the jurisprudential tradition through which Muslims interpret and apply Islamic principles.
That is the meaningful comparison.
And it makes the American question much less mysterious.
We already know how a constitutional democracy can accommodate religious communities with sophisticated bodies of religious law.
The Jewish American experience demonstrates it.
The state does not have to adopt Halacha.
Jewish Americans do not have to abandon Halacha.
The two can coexist because the spheres are different.
Religious law governs the believer’s religious obligations.
American law governs the rights and obligations that the government can enforce.
Where people voluntarily agree to arbitration, American law can recognize that agreement.
But the underlying authority remains contractual and private.
That distinction is fundamental.
Where the line has to remain
There is, however, a bright line.
Religious freedom cannot become a license for coercion.
No imam can imprison someone because an Islamic tribunal says he should be imprisoned.
No rabbi can exercise police power because a Beth Din has issued an order.
No church can create a parallel criminal justice system.
No religious community can override constitutional rights.
And no religious authority can use private arbitration to circumvent laws that the parties cannot legally contract around.
The same principle applies to every religion.
That is why I am comfortable defending the right of Muslims to practice Islam while simultaneously insisting that the Constitution remains supreme.
Those positions are not contradictory.
They are the American model.
We should not repeat Syria’s mistake in America
This is also where the Syrian experience becomes relevant.
In Assad’s Syria, the problem was not that Muslims had religious law.
The problem was that the state captured religious institutions and used religious authority to legitimize state power.
That is the precise opposite of the American model.
In America, religious institutions are supposed to exist independently of the state.
A Muslim scholar should be able to criticize the president, a governor or an elected official.
A rabbi should be able to criticize the president, a governor or an elected official.
A priest should be able to criticize the president, a governor or an elected official.
A religious community should be able to disagree with the government without that disagreement becoming a religious crime.
That independence is one of the most important safeguards against the abuse of religion.
It is also why we need to be careful about what we mean when we talk about Sharia.
If someone voluntarily follows Islamic jurisprudence in his own life, that is religious freedom.
If two parties voluntarily agree to religious arbitration for a private dispute, that can be part of American alternative dispute resolution.
If a government attempts to impose its preferred religious interpretation on everyone and uses police power to enforce it, that is something entirely different.
The first two can exist comfortably inside constitutional democracy.
The third is incompatible with it.
Political parties should understand the distinction
There are legitimate questions for Republicans and Democrats to ask about political Islam, foreign influence, extremist organizations and movements that reject constitutional government.
Those questions deserve serious analysis.
Because those are things that we have fought to keep out of America, and those are things that I have personally fought to educate on.
But if the political conversation begins and ends with the word “Sharia,” it is not serious enough.
If someone wants to criticize Islamic jurisprudence, they should understand fiqh.
If someone wants to discuss Muslim family life, they should understand the difference between voluntary religious observance and civil law.
If someone wants to discuss religious arbitration, they should understand how Beth Din arbitration already operates within the American legal system.
And if someone wants to argue that Muslims should have fewer religious freedoms than Jews or Christians, they should say so openly and explain why.
I do not think that is the American tradition.
The better answer is equality.
Let Muslims practice Islam.
Let Jews practice Judaism.
Let Christians practice Christianity.
Let religious communities maintain their internal traditions.
Let people voluntarily use religious arbitration where American law permits it.
But keep the same boundary for everyone.
No religious tribunal is sovereign.
No religious leader is above the Constitution.
No religious practice can override another person’s civil rights.
And no government gets to turn religious authority into an instrument of political coercion.
That is the distinction I wish more people understood.
The American question is not whether Sharia should replace American law.
It should not.
The better question is whether American Muslims should have the same freedom that Jewish Americans have long exercised to organize portions of their private and communal lives according to their religious traditions, while remaining fully subject to American law.
I believe the answer is yes.
That is not a concession to Islam.
It is not an endorsement of every interpretation of Sharia.
It is not the creation of a parallel legal system.
It is simply the application of a principle that has been central to the American experiment from the beginning.
You can be governed by the Constitution and still live according to your faith.
That is not a threat to America.
It is one of the things that makes America different, and better.
