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Contracting Fear: Islamic Law in the Middle East and Middle America

CONTRACTING FEAR – Book Sample

About the book – CONTRACTING FEAR

If you’ve ever read a news story about radical Islam, you’ve probably seen “sharia law” mentioned. But for something that is becoming increasingly prevalent in political rhetoric, it’s hard to believe how little most people actually know about Islamic law. In this concise and instructive book, Khurram Dara explains not only the history and origins of Islamic law but also the interesting role it has played in the politics of the Middle East and Middle America.

Challenging the conventional wisdom that Islamic law is rigid and permanent, Dara argues that the political and cultural realities of its formation suggest otherwise and should change how Islamic law is thought of and discussed in both the East and the West. Combining religious history with legal analysis, Contracting Fear explains Islamic law in the context of the global political climate today.

Introduction

Islamic law has quite the reputation these days. Perceived as rigid and premodern, the sharia has gained notoriety as Islamist par ties champion its revival in the Middle East. In popular media, an avalanche of information has been propagated on “sharia law,” particularly on blogs and other Web-based outlets. I’ve heard it said that the Internet is miles long, but only inches deep; that’s how I would describe much of the information out there on Islamic law: plentiful, but incomplete, and at times downright inaccurate. Shari’a in Arabic means “the way” or “the path” and is believed

to refer to the way or path to water.1 Life in the ancient Middle East revolved around finding water, so the sharia represents the way or the path that Muslims are expected to follow in their lives.2 In the premodern era the sharia manifested itself as a law system of sorts. But how the duties and obligations that make up the sharia fit with the modern state and whether they were meant to be carried out on a voluntary, individual basis or through institutional implementation, have been the subject of great debate and controversy among Muslims for decades.3

For some time now, what the sharia is and what it means depends on who you ask.4 Yet today this de-bate is seldom heard. It is taken for granted that what is currently practiced and purported to be Islamic law in the Middle East is in fact a true and genuine representation of the sharia,5 when in reality it is not at all. And unfortunately this modern reinvention of Islamic law is severely in conflict with our contemporary views of justice.

With the rise of radicalism and terrorism committed in the name of Islam, there’s growing concern in the West that Islam itself is the problem. While most people would agree that only a small minority of Muslims engage in this type of violence, many have started pointing to aspects of Islam, like the sharia, to make the claim that Islam is inherently extreme and radical.

But Islamic law as practiced today, particularly in the Middle East, is completely different than the sharia as a law system that once existed. That is to say, what people often refer to today as Islamic law or sharia law is not the same as the sharia.

The latter was not just law, it was a law system; one that existed in the premodern era and for all intents and purposes died after the First World War.6 Today’s versions of Islamic law, by contrast, are new and different from the sharia. In fact, as I argue in this book, they are so distinct from the sharia that a more appropriate term for this reinvention and reimagining of the past is neosharia law.

Recognizing the inconsistency between Islamic law today and its function in the premodern world is not novel; most schol-arship on Islamic law is settled on this fact.7 But outside the acad-emy, political rhetoric and public discourse in the Muslim world indicates this difference is neither understood nor appreciated. In many majority-Muslim nations, governments use political propa-ganda to convince citizens that their administration of law is in ac-cordance with Islamic principles—and that opposing this type of law is akin to opposing Islam. As a result, many in the region have contracted fear: they fail to challenge the administration of law because they fear doing so means challenging their faith. But, as I argue, they should feel no hesitation in criticizing or condemning Islamic law as practiced today, nor should they feel any less pi-ous for doing so, precisely because of the enormous differences between the classical sharia and its recent reinvention, neosharia law.

 The sharia as it originally existed also seems to be misun-derstood. Despite its obvious religious connection, much of the sharia was the product of premodern Middle Eastern politics and culture. It was a pluralistic, evolving, and dynamic mechanism for social order and political stability. These realities, I argue, should change the perception, especially among Muslims, that Islamic law is static, permanent, and incapable of change.

Discussion of Islamic law has not just been limited to the Muslim world, however. The constant and seemingly growing threat of radicalism within Islam has brought Islamic law into the limelight in the West. Calls to outlaw or ban Islamic law from en-tering American courts have increased, and a national campaign to put foreign-law bans in front of state legislatures is underway. This is where Middle America comes in: over thirty U.S. states have considered proposals to ban Islamic law.8

It’s being touted as a matter of national security, a way to prevent the backwards prac-tices of the Middle East from encroaching on our freedoms here at home, and it’s become a rather popular talking point in both state and congressional campaigns around the country. But these fear-driven proposals and enactments are unnecessary, misguided, and contrary to existing American law.

Not because Islamic law should be applied in America (of course it shouldn’t), but because it has never been, and will never be applied here. In my view, these proposals are a solution in search of a problem and do more harm than good.

Part 1 explores the history of the sharia and the role it came to play in premodern Middle Eastern government. A result of efforts to maintain order, much of what would become the sharia was ad-opted and absorbed from existing cultural practices in the interest of expedience.

 In stark contrast to modern law, the sharia lacked uniformity and existed independent of the state. Moreover, the sharia developed from the bottom upward, considerably distinct from the top-down dissemination of law by modern government today.

These aspects of the sharia, as scholars Wael Hallaq and Noah Feldman, among others, have argued, gave the law and the legal class that protected it remarkable strength in the premodern Middle East.9 Its separation from government allowed the sharia to constrain power of ruling classes, while its pluralistic structure empowered it with the malleability not only to adapt to different populations but also to evolve over time.

However, significant changes both in and outside the Middle East over the course of the last two centuries have completely altered Islamic law and its relationship with government.

After part 1 lays out an overview of the sharia and its history, part 2 chronicles the antisharia movement and discusses the rise of Islamic law as political issue in America. Evaluating whether Islamic law genuinely poses a threat to America, I comb through some of the cases that apparently show its encroachment in U.S. courts.

I then try to explain the rising interest in Islamic law by looking at it in the larger context of Islam’s current image. I con-sider the possibility of religious animus, highlighting the uncanny similarities between current characterizations of Islam and the once commonplace bias against Catholics in nineteenth- and twentieth-century America.

In part 3, I look at the constitutional issues implicated by the foreign-law bans proposed, and in some states already enacted. Even if Muslims in America were clamoring for the use of Islamic law (which they are assuredly not), foreign-law bans face quite a few constitutional hurdles.

Examining the religion clauses, separa-tion of powers, and other constitutional provisions and doctrines, I discuss the problems associated with these antisharia measures that have gained traction in Middle America.

I conclude by explaining that the misunderstood nature of the sharia in the Middle East and in Middle America has signifi-cant consequences for populations in both regions. The toxic mix of political instability and ineffective rule of law in the Middle East is partly a consequence of the changed role of the sharia and a lackluster appreciation for this change.

 Likewise, the rhetoric sur-rounding foreign-law bans in Middle America could increasingly isolate American Muslims, which gradually inhibits social prog-ress and chills the perennial American melting pot.

In the pages that follow, you’ll begin to see that fear perme-ates many aspects of Islamic law and its understanding in today’s world. Whether it is fear of change within Islam, fear of challeng-ing the established legal order in the Middle East, or fear of medi-eval Arab custom creeping into America, Islamic law has come to occupy a truly enigmatic place in popular discourse.

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