Friday, March 28, 2008
[This piece of mine appeared at Frontpage Magazine yesterday. -HS]
As an old photographic print slowly becomes visible when immersed in developing solution, Noah Feldman's ultimate advocacy construct, namely, that Sharia law represents the highest concept of "The Rule of Law", first began to darken the paper in his 2005 book, Divided by God
If all this seems a bizarre role for someone who attended the Orthodox Maimonides School near Boston, it is in line with the career trajectory of a very bright young man who wants to be preeminent among the severely compromised academics inhabiting The Middle East Studies Association and as a latter day Shmuel ha Nagid (Granada's 11th century Jewish vizier to the Berber sultan Habbus al-Muzaffar) in the courts of The Middle East.
A week after his piece in The New York Times Magazine, "Why Shariah?",
Feldman presented his advocacy position during Harvard's Interfaculty Initiative on Contemporary State and Society in the Islamic World. The Initiative previously featured UCLA's Khaled Abou el Fadl who set the tone for the series with his opening statement that "Whether Sharia complies - or does not comply - with fundamental human rights is vacuous and irrelevant." So much for a thousand years of western humanist thought and liberal jurisprudence. With one terse pronouncement, the Harvard series vitiated the West's bedrock of liberal thought from The Magna Carta to Rutherford, Hobbes, Locke, Montesquieu and Rousseau.
What was different about Feldman's lecture vs. his magazine piece was what he left out of his lecture. Obviously, any discussion of Sharia must include what informs the law at its heart -- The Koran, Sunna and, to a lesser extent, Sira. Writing for the Times, he at least traced the roots of Sharia to The Koran. But that was as far as he would go. At Harvard, his analysis of Sharia was limited to "The Rule of Law" as interpreted by "scholars" producing an Islamic "constitution"; all of which is refined and perfected by a "balance of power" between rulers and scholars. If all of this echoes the Western experience, it does, but not in the reality of history, but rather as part and parcel of Feldman's attempt to normalize 1400 years of Islamic supremacism.
To Feldman, Sharia evolves from "Higher Law" to "The Rule of Law" in a neat conflation of the Secular with the Holy that places sacralized Islamic code alongside the West's rigorously evolved concept of secular justice (Feldman suggests that the dreaded huddud laws of amputation and other draconian penalties for apostasy and blasphemy are mere "worldly commands" despite the literal Koranic instructions, for example -- Sura 5:33 which prescribes amputation of limbs "on opposite sides", a dreadful penalty that has found new life in some of the Sharia ruled lands today.
The fundamental nature of Sharia Law, whatever its current pragmatic accommodations, is inextricably connected to divine revelation -- a concept the West did away with centuries ago -- is utterly missing from his lecture. The fact that the Nigerian woman, Amina Lawal, was recently spared the Hadithic-inspired penalty of being stoned to death for adultery is explained more by international outrage and pressure than by any "nuanced" application of traditional Sharia Law.
The evolution of Western jurisprudence can be seen as a fission process, separating and rejecting ecclesiastical and divine-right monarchical statutes while the revival of Sharia Law can be seen as a fusion process, reasserting the connection between statutes and religious revelation. In effect, Feldman cloaks this bold leap backwards to the Middle Ages beneath the sophistry of citing the 11th Century Baghdad jurist, al-Mawardi as a shining example of the purity of Sharia in the face of the abuse of secular rulers. A pity Professor Feldman failed to note that the medieval Basra scholar was a staunch proponent of Jihad war and violent imposition of Sharia law as it applied to dhimmis, that is, Christians and Jews. Al-Mawardi writes in his epic Laws of Islamic Governance of the Jizhya or compulsory poll tax levied on dhimmis,
"Payment is made immediately and is treated like booty. It does, however, not prevent a jihad being carried out against them in the future."1
Similarly passed over by Feldman are some telling observations on Sharia by one of Professor Feldman's favorite historians of Islam, Sir Hamilton Gibb:
"The evidence of two women is reckoned as equal only to that of one man; that of non-Moslems against Moslems is occasionally, but grudgingly admitted, and on serious charges not admitted at all." [my emphasis] ...the Muslim murderer of a dhimmi does not suffer the death penalty; a dhimmi man may not marry a Moslem woman, whereas a Moslem man may marry a dhimmi woman. In the second place, dhimmis are obliged to wear distinctive clothes so that they may not be confused with true believers [ i.e., Muslims], and are forbidden to ride horses, or carry arms. Finally, though their churches may be, and in practice frequently have been, converted into mosques, they are not to build new ones. The most they may do is repair those that have fallen into decay."2
We find no reference whatsoever, in either Professor Feldman's New York Times article or in his recent lecture, to Sharia and its impact on non-Muslims, whether they be dhimmis (Christians and Jews (people of the book) or idolaters (those that "associate" other gods with Allah -- mushrikun). The body count and divinely inspired discriminatory laws resulting from the Muslim conquests of the 7th century up to the present belie Feldman's grandiose apologetic that "...Islamic law offered the most liberal and humane legal principles available anywhere in the world."3
Indeed, even a critic with relatively uncritical tendencies when it comes to Islam, Alan Wolfe of Boston College, recognizes Feldman's intent:
"The problem with Feldman's compromise lies elsewhere. Offered as a non-biased solution to church-state conflicts, Feldman's proposal, like separation of church and state itself, is biased against some religions and in favor of others."4
You guess which religion.
Noah Feldman may have his sights set on a tenured position at Al Azhar University in Cairo under its Grand Imam, Sheikh Muhammad Sayyid Tantawi, whose tafsir (exegesis) of the Koran (3:113) says "All Jews are not the same. The good ones become Muslims, the bad ones do not." He may yet attain the next level of dhimmitude with a few more lectures on the inevitability of Sharia.
1Andrew Bostom, The Legacy of Jihad
2H.A. R. Gibb and Harold Bowen, "Islamic Society and The West," Vol. 1, London, 1957) p. 208
3Noah Feldman, "Why Sharia?", New York Times Magazine, March 16, 2008. p. 1
As I recall, this is the same guy who blasted his alma mater for refusing to re-write Orthodox judaism to suit his desire to intermarry. His NYT article contained some distortions and a few outright lies, which were debunked quite ably by Rabbi Avi Shafran and by Rabbi Norman Lamm, among others.
As they used to say, falsum in uno falsum in toto.
I think the word which best describes Feldman is Kapo.
The arguments against Sharia should not depend on whether it might be fair to non-Muslims (and who can decide that?) or anything else. Even if sharia were a not-bad alternative to Western concepts of laws, it wouldn't matter. The fact, really the only fact, about it that matters is that its source is the Koran. If you don't believe in the Koran, sharia offers you nothing. It may as well derive its inspiration from Monopoly.