By Marshall Breger
like Jewish law, Islamic law is worthy of protection in the United states
Similarities between Judaism and Islam are easy to see. Both are monotheistic religions for whom the Lord is One. Both are religions based on revelation. In both, law is central, and personal and social existence is governed by a divinely ordained legal system.
There are also many obvious parallels between Judaismâ€™s legal system, known as halacha, and the Islamic legal order of sharia. Both purport to instruct us in how to attend to every aspect of oneâ€™s life: oneâ€™s getting up and oneâ€™s going out, oneâ€™s sexual practice and oneâ€™s business practices. For some adherents of each, religious law also dictates political life, such as for whom to vote.
Despite this kinship, there are those in the Jewish community who would condemn Islam and sharia, arguing that, un-like Judaism, Islam is not worthy of the protections of American law.
David Yerushalmi, author of a model law banning sharia, argues that sharia differs from halacha because of its different â€œthreat matrix.â€ Sharia, he tells us, requires faithful Muslims to impose Islamic law on the world â€œviolently,â€ and its adherents should be charged with sedition against the United States. Rabbi Jon Hausman, a self-styled â€œwarrior rabbiâ€ from Massachusetts, tells us that in Judaism, unlike Islam, the law of the state is the law (in Aramaic, dina dâ€™malchuta dina) so you donâ€™t have to worry about such religious â€œimperialism.â€
These commentatorsâ€™ understanding of both sharia and halacha is markedly defective.
1. As Hausman surely knows, the reach of dina dâ€™malchuta dinais debated among rabbinic commentators. Some limit the application of the Jewish legal system to property issues, others extend it to apply to all secular law that does not violate Jewish law. In any case, Hausmanâ€™s suggestion that halacha is a personal legal systemâ€”not relevant to civic life and politicsâ€”neglects both Jewish history and halacha itself. In Baghdad during the Middle Ages and in Poland during the time of the Council of the Four Lands, from the 16th to the 18th centuries, for instance, Jewish communities had their own courts, and Jewish law was enforced by secular authorities. And even today, thousands of Jews in both the United States and Israel look to rabbinic courts and halacha to resolve all manner of civil disputes.
While clearly some Muslims do view sharia as a hegemonic political force, the vast majority of Muslims, especially those living in the West, view sharia no differently from the way Jews view the halachic system: as an overarching guide to ordering oneâ€™s life. Muslim jurists have always drawn on sharia to mandate that fellow Muslims obey the laws of the land in matters that sharia does not prohibit. In numerous instances (see Koran 5:11), Muslims are told to â€œhonor their contractsâ€ and so to honor the â€œsocial contractâ€ represented by the law of the land. The Fiqh Council of North America, the leading interpreter of Islamic law in the United States, ruled as recently as September 2011 that â€œthere is no inherent conflict between the normative values of Islam and the U.S. Constitution and the Bill of Rights.â€
2. Daniel Pipes recounts in a 2009 article an incident in England when the Indian Muslim owner of an old age home near Manchester proposed to switch to serving only halal food in the facility. After residents complained, the owner retracted the policy.
To Pipes, the ownerâ€™s desire to remove pork from the menu, even though apparently not implemented, is proof that Islam wishes to impose itself on all around it. But is this drive for â€œimperiumâ€ the only explanation?
Indeed, Jewish law would have great sympathy for the position taken by the Indian entrepreneur. Though there are gray areas, Jewish law generally holds that one cannot benefit (or profit) from the sale of mixed milk and meat products. The legal compendium theShulhan Aruchforbids Jews from selling non-kosher products on a regular basis (Yoreh Deâ€™ah 117.1). And anyone who has read Daphne Barak-Erezâ€™s 2007 monograph Outlawed Pigs: Law, Religion, and Culture in Israelwill appreci-ate the difficulties of commerce in pork products (or â€œwhite meatâ€ as it is politely called) in Israel.
3. Critics of Islam make much of the Shiite legal doctrine of taqquiaand the related concept of kitman, which allow one to dissemble or evade by misdirection in order to save a life or community from imminent destruction (see Koran 16:106). For these critics, the takeaway is that Muslims lie when it is in their interest, so we cannot trust their promises or make treaties with them.
But numerous Koranic references tell the believer to â€œmix not the truth with falsehood nor conceal the truth when you know what it isâ€ (2:42). And further, â€œConceal not [the truth]; for whomever conceals it is burdened with sinâ€ (2:283).
Again, we must look to Jewish law analogues. Even the Chofetz Chaim, the rab-binic scholar most associated with truth-telling, allows â€œwhite liesâ€ when they will produce social and interpersonal peace. (No threat of imminent destruction is required.)
Maimonides allows one to lie about oneâ€™s religion to save oneâ€™s own life. And does anyone remember the Marranos?
My point is not to analyze the nuances of halacha, let alone sharia, but rather to underscore the inconsistency of attacking Islam for activities that Jewish law and prac-tice would also permit, or even require.
These broadside attacks on sharia are reminiscent of Jewish polemical literature after the rise of Islam in the seventh and eighth centuries designed to show Judaism as superior. Later scholars such as the Meiri, though, moved on from polemics to classify Islam as a monotheistic religion close to Judaism. While there are certainly fundamentalist interpretations of Islam that we rightfully find dangerous and deplorable, it is time that Jews in America go be-yond â€œgotchaâ€ polemics and stop treating sharia and Islam as illegitimate expressions of manâ€™s search for the divine.