Rauf's statements, if disproved, would badly discredit his explanation for the Ground Zero mosque's purpose. The intent of this essay is to analyze Rauf's idea that Muslim
Shari'ah and American law agree. This is done by comparing the US Constitution in a few essential Amendments--1
st, 5
th & 8
th--to see if Islamic and American law are in fundamental agreement.
I Introduction to Muslim Law
What is the
Shari'ah Muslim law? Peerless scholar of the
Shari'ah,
Joseph Schacht, in
Introduction to Islamic Law, writes:
The sacred Law of Islam is an all-embracing body of religious duties, the totality of Allah's commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing ordinances regarding worship and ritual, as well as political and (in the narrow sense) legal rules.
Schacht says
Shari'ah is a legal system offering a total view of holy living, mixing the sacred and secular. Adda Bozeman, in
Future of Law in a Multicultural World, claims it is technically incorrect to describe
Shari'ah as "law" at all, as understood in the West. This is because positive and religious laws are mixed, while public and private law are also thrown together.
Wael B. Hallaq discusses in
An Introduction to Islamic Law how
Shari'ah attempts to regulate all human behavior. He writes,
Thus, all acts are regarded as shar'i (i.e. subject to the regulation of the Shari'a and therefore pronounced as law--"law" being a moral-legal commandment), and are categorized according to five norms.
According to Hallaq, these five all-encompassing norms are: the prohibited, the obligatory, the recommended, neutral and disproved. The upshot is Islam presents a theory of law the exact opposite of Christian-influenced legal theory. In the West, it's understood everything not banned is legal. But in Muslim
Fiqh, or legal theory, there is a tendency to see anything not explicitly allowed as being potentially illegal.
II Imam Compares Muslim Shariah Favorably to US Constitution
The US Constitution is the basis of all American law, and any rules that disagree with this are unacceptable in the States. As the cornerstone of American jurisprudence, the Constitution is the testing ground for acceptable legal theories. So let's compare a few basic Constitutional standards to
Shari'ah law to see if they are in accord, as Rauf claims.
Imam Feisal Abdul Rauf, in
arguing for Islam, made the
following statement:
But it is important that we understand what is meant by Shariah law. Islamic law is about God's law, and it is not that far from what we read in the Declaration of Independence about "the Laws of Nature and Nature's God." The Declaration says "men are endowed by their Creator with certain inalienable Rights; that among these are Life, Liberty and the pursuit of Happiness."
At the core of Shariah law are God's commandments, revealed in the Old Testament and revised in the New Testament and the Quran. The principles behind American secular law are similar to Shariah law - that we protect life, liberty and property, that we provide for the common welfare, that we maintain a certain amount of modesty. What Muslims want is to ensure that their secular laws are not in conflict with the Quran or the Hadith, the sayings of Muhammad.
So, is it true Islamic law and the US Constitution are essentially in agreement? The following analysis compares the two legal systems to test Rauf's claims.
III US Constitutional Amendments Versus Muslim Shariah Law
A. First Amendment
1. Freedom of Religion & Dhimmis
The
First Amendment of the US Constitution says, in part:,
"
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..."
So, does
Shari'ah respect all religions--not just Islam, as Rauf implies? According to Ann Elizabeth Mayer, in
Islam And Human Rights, Tradition & Politics, "There is no developed tradition of Islamic human rights protection." Since freedom of religion is a basic human right, it goes without saying there is no freedom of religious expression under
Shari'ah law. The official religion of Muslim countries is Islam, as in
Saudi Arabia. So, opposed to the Constitution, Islam officially establishes a state religion.
What do non-Muslims experience living in Rauf's
Shari'ah compliant state? Generally, under Islamic law, non-believers in Muslim territories must sign a treaty, the
jizyah. But only Christians and Jews, who are fellow People of the Book (
ahl al-kitab), ie the Bible, are allowed this status, and called
dhimmis. Schacht describes
dhimmis outside of the
jizyahtreaty:
A non-Muslim who is not protected by a treaty is called
harbi, 'in a state of war,' 'enemy alien'; his life and property are completely unprotected by law unless he has been given a temporary safe-conduct (
aman)...
The
jizyah treaty lasts a year, paid for as a capitation tax. Without such a treaty, these resident unbelievers in Muslim lands can be killed, unless they receive Muslim protection.
Further, the religious exercise of non-Muslims is hampered in various ways, many of them petty. For instance, if a Muslim and non-Muslim encounter one another walking, the non-Muslim must step aside for the believer. And new churches or synagogues cannot be built, not even to replace a building used as such that has been destroyed. Preaching and proselytizing of Christian or Jewish beliefs is
absolutely verboten. Some reports suggest Christian missionaries
have been beheaded for their work. In Saudi Arabia, even public worship is denied
dhimmis, who must hold
secret religious services, although
even these can be deported.
Abandonment of the Muslim faith, or
apostasy, is
traditionally punished by death. According to David Forte, in
Studies in Islamic Law; Classical & Contemporary Application, apostasy is considered synonymous with treason, a capital crime. Forte says they "...inflict a death sentence because the apostate waged war on Islam." Males are given three days to reconsider, then executed. Women are merely flogged every three days until they repent.
2. Freedom of Speech & Hisbah
Is Rauf correct to imply
Shari'ah protects freedom of speech like the US Constitution? Unfortunately, there is no right to free speech under
Shari'ah law.
Mohammad Hashim Kamali examines the topic in
Freedom of Expression in Islam, listing permitted and forbidden speech types (i.e.
hisbah). On this, Kamali states:
Commanding good and forbidding evil (
al-amr bi'l-ma'ruf wa'l-nahy 'an al-munskar) is a cardinal Qur'anic principle which lies at the root of many Islamic laws and institutions. As an epithetical description of Islam itself, this principle is the supreme objective of the Shari'ah, and the ethical core of government power.
So it's pre-ordained things a Muslim may say. The kinds of things a person under
Shari'ah may speak are: Sincere Advice (
Nasihah); Consultation (
Shura); Personal Reasoning (
Ijtihad); Freedom to Criticize (
Hurriyyat al-Mu'aradah); Freedom to Express an Opinion (
Hurriyyat al-Ra'y).
Things off-limits to express are: Public Utterance of Hurtful Speech; Slanderous Accusations (
Qadhf); Libel (
Iftira); Insult (
Sabb; Shatm); Cursing (
La'n ); Attribution of Disbelief to a Muslim (
Takfir al-Muslim); Sedition (
Fitnah); and Blasphemy (
Sabb Allah wa Sabb al-Rasul).
Shari'ah penalty for slander and libel, according to Kamil, is eighty lashes. Sedition resembles
apostasy, so offenders are under the law of
jihad and killed, as are
blasphemers. The other crimes are given the
ta'zir, or discretionary punishment. Now Muslim states push for "
global blasphemy law."
B. Fifth Amendment
The
Fifth Amendment of the US Constitution says, in part:
"
No person shall ...be deprived of life, liberty, or property, without due process of law..."
1. Due Process: First, let's address
Due Process, described as "an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures." Many jurists claim Due Process is the most important aspect of American law, insuring every other rule is applied fairly. The question remains, as Rauf insinuates -- Does Islam have this kind of "Due Process" in
Shari'ah law? The answer is, unequivocally--No.
Modern Muslim scholars sometimes boast the American Bill of Rights finds precedence in Islamic law. But research shows no
Shari'ah Bill of Rights ever existed. For example, the article "
Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice," by Sadiq Reza shows such claims on the 4th Amendment are fictitious.
An example illustrates the problem, regarding
rape. Under
Shari'ah, rape can only be prosecuted if there are four witnesses (
Qur'an 24:4). A Due Process analysis would certainly reject the idea four witnesses must be procured, instead seeking to preserve all relevant evidence, not just verbal testimony. DNA and everything else useful would be included.
Having established a lack of Due Process, we must presume Life, Liberty & Property are not well protected under
Shari'ah.
2. Property: Majid Khadduri, in
The Islamic Conception of Justice, explains the Muslim view of property:
Does the Shari'a seek to protect the collective interests of the community as the primary object or the interest of the individual believer? An examination of the public and private "rights and duties" indicates that the purpose of the Law is to protect the interests of believers as a whole; the interests of the individual are protected only as far as they do not come into conflict with the general interest...In legal theory, all property belongs ultimately to God on the grounds that He had created everything in Heaven and Earth. But for the survival of mankind, God granted man the right to enjoy property. So we may conclude that God is the "owner" of property in principle, and that He has granted man only the right of "possession."
Shari'ah developed two schools on property, according to Khadduri. The first emphasizing community needs; the second granting private property rights. But Islam generally favors community over personal need, perhaps explaining why socialism is widely accepted in the Middle East.
Shari'ah does recognize private property, with exclusively ownership of a thing being
milk, and possession being
yad. Yet, Muslim ideas of general human rights to property have a decided tribal orientation. Raids against unbelievers were sanctioned to collect war booty (
ghanima)
. So Muslims have a right to private property, but also can legally take non-believer's property in
jihad, as well.
3. Liberty: Saudi Arabia
Let's examine the world's most
Shari'ah compliant country, Saudi Arabia, for "Liberty," i.e. freedom. If Rauf is correct, Liberty should be common in Arabia. But is this true? Saudi Arabia is a kingdom chiefly oriented to males, the sexes being mostly separated (
purdah); the world's only country where women cannot drive. Saudi women of all ages need legal guardians. Nor can women spend time alone with unrelated males, or it's assumed they had sex (
zina), such thinking revealed in "
honor killings."
One
travel site describes rules of visiting Saudi Arabia, social norms:
Visas for tourism are issued only for approved tour groups following organized itineraries. All visas require a sponsor. Women visitors and residents are required to be met by their sponsor upon arrival. Foreign residents traveling within the Kingdom, even between towns in the same province, carry travel letters issued by employers and authenticated by an immigration official or a Chamber of Commerce office. Police at all airports and dozens of roadblocks routinely arrest and imprison violators.
Crime is generally not a problem for travelers in Saudi Arabia. However, private Saudi citizens who perceive that conservative standards of conduct are not being observed by a foreigner may harass, pursue, or assault that person.
Islam pervades all aspects of life in Saudi Arabia. It is the official religion of the country, and public observance of any other religion is forbidden. Public non-Muslim religious services are illegal, and public display of non-Islamic religious articles such as crosses and Bibles is not permitted.
The norms for public behavior in Saudi Arabia are extremely conservative, and religious police, known as Mutawwa, are charged with enforcing these standards.
4. Life
Capital punishment is typical under
Shar'ah, often for behavior protected by our Constitution--such as blasphemy and apostasy. So is the Imam correct to claim
Shari'ah protects life as much as the Constitution?
C. Eighth Amendment
The
Eighth Amendment of the US Constitution says, in part "...
cruel and unusual punishments (shall not be) inflicted."
Are
Shari'ah punishments "cruel and unusual"? Islamic law is famed for antiquated, brutal penalties. Yet, a recent proposed "draft penal code" by Islamic Azhar University scholars shows no deviation form ancient standards. Khadurri lists some:
In brief, the Revelation provides that offenses are forbidden acts for which punishments are determined by either a legal penalty (hadd), or discretionary act (ta'zir). The offenses are as follows: theft (al-sariqa); brigandage (al-hiraba); fornication and adultery (al-zina); drinking of wine (al-shirb); false accusation of indecency (al-qadhf); and apostasy (al-ridda). The punishment for theft is amputation of the right hand; for brigandage is death. The punishment for fornication is one hundred lashes, and for adultery it is stoning to death for both the man and woman; for drinking is eighty lashes; and for apostasy, the punishment is death, unless the apostate is prepared to repent.
Other Muslim punishments include death by being
thrown off a high place for
homosexuals,
crucifixion for highway robbery,
beheading for
various capital crimes.
Having reviewed
Shari'ah penalties, we ask--Are there punishments given outside Islamic law that are any more cruel and unusual?
Conclusion
Rauf claims the Constitution's "Laws of Nature and Nature's God" are synonymous with Islamic
Shari'ah. But is this true? In fact, the Founders referenced Western Natural Law theory, which
Thomas Aquinas described as Biblical law interpreted by common sense. Natural Law does not then simply ratify rules of any religion, in the name of some god, then apply it to man, as Rauf implies. Further, why does he claim Biblical law agrees with
Shari'ah when Islam rejects the Bible?
Specifically, we've asked if there are First Amendment rights in
Shari'ah compliant countries, like Saudi Arabia? But one cannot openly practice any religion in Arabia; nor talk freely about all topics. So there are no US constitutional rights under
Shari'ah. Further, we asked if Muslim law
specifically defends rights to Life, Liberty & Property, as detailed by the Constitution? Again, we deduced such rights weren't conceived of under
Shari'ah. Finally, we studied whether cruel and unusual punishments were avoided under
Shari'ah, and discovered punishment worse there than probably anywhere else.
So now--what to make of Imam Rauf? Is he an honest, straightforward person, or is he selling an agenda through misstatements? When he boasts, "This center will be a place for all faiths to come together as partners, as stakeholders in mutual respect"--should we believe him? If not, what does that portend for all his other promises? Finally--Are good works really built upon a foundation of utter deception?
