‘Shariah Law’ And ‘Checks and Balances,’ Needed in Constitution

Written and collected by Zia H Shah MD, Chief Editor of the Muslim Times

Revelation and intuition on the one hand and human reason, logic and humanity’s cumulative experience on the other are not polar opposites or adversaries. In the proper frame work these are a couple and helpers of each other, to make sense of both the dimensions of human existence, of our “eureka” moments of inspiration and our tedious work of logic and reason, methodically done and arrived at.

Inside the chamber of the US Supreme court, there is a frieze, which is a sculpture installed in a wall, which was sculpted by Adolph Weinman in 1932. Weinman sculpted 18 people through history who have had an impact on our concept of law, as well as allegorical figures depicting some great legal concepts.

The amazing coincidence or shall we call it Providence, is that out of the total of 18 figures, four according to the Islamic tradition are prophets of God, namely Muhammad, Moses, Solomon and Confucius, may peace be on all of them.

Shall we say that these four names are written in stone in the history of law for all times to come?

I believe, it is proof enough that revelation by God has made landmark contributions to US law and constitution and indirectly in every other country.

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A frieze, designed by Adolph Weinman, on the north wall of the US Supreme Court depicts great lawgivers of the Middle Ages. This includes the Holy Prophet Muhammad

The 18 lawgivers include: Menes (first king of the first dynasty of Egypt); Hammurabi (king of Babylon, creator of the Code of Hammurabi); Moses (shown holding the Ten Commandments); Solomon (king of Israel); Lycurgus (legislator of Sparta); Solon (lawgiver of Athens, codified and reformed Athenian law); Draco (first lawgiver of Athens); Confucius (Chinese philosopher); Octavian (first emperor of the Roman Empire); Justinian (Emperor of Byzantine, father of the Justinian Code); Mohammed (shown holding the Koran); Charlemagne (Roman emperor, founder of the Holy Roman Empire); King John (shown holding the Magna Carta); Louis IX (King of France, creator of the first appeals court); Hugo Grotius (author of the first book on international law); William Blackstone (English law professor whose work influenced English and American law); John Marshall (Chief Justice of the Supreme Court, 1801-1835); Napoleon (Emperor of France, influenced the Napoleonic Code).

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A frieze, designed by Adolph Weinman, on the north wall of the US Supreme Court depicts great lawgivers of the Middle Ages

So much about the contribution of revelation to our laws and constitution. But, what is the contribution of human reasoning and cumulative human experience over the millennia to our laws and what can the so called Muslim countries learn from the US experience over the last 240 years, is the subject of the rest of the article.

The 1.6 billion Muslims were certainly disturbed by recent ban by President Trump on travelers from 7 Muslim majority countries. It affected some 134 million people, but , it certainly made each and every thinking Muslim and people of conscience of other faiths or of no faith, very  uncomfortable. Apologists for President Trump tried to argue that it was not a ban on the Muslims or a discrimination against them, but people with any degree of wisdom were able to see through the excuses.

On Tuesday, the US court of appeals for the ninth circuit heard oral argument on an emergency motion to overturn Judge Robart. More than 130,000 people live-streamed the hearing.

The Department of Justice represented Trump in the court of appeals and took several astonishing positions. Most remarkably, it warned that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

Trump (through his tweets) and his lawyers (in their briefs) thus argued not only that Trump should win on appeal, but that judges would cause grave harm merely by questioning his order.

On Thursday night, a three-judge panel of the ninth circuit unanimously ruled against Trump in a powerful, well-reasoned opinion. The decision can be read in the Muslim Times: Appeals court decision.

The panel held that Trump’s demand for judicial abdication “runs contrary to the fundamental structure of our constitutional democracy.” As the court explained, “it is the role of the judiciary to interpret the law,” even in cases involving national security.

Indeed, that is a settled, fundamental principle of our separation of powers in USA: “Courts routinely review the constitutionality of – and even invalidate – actions taken by the executive to promote national security, and have done so even in times of conflict.”

checks-and-balances

The ninth circuit’s reasoning is forceful, elegant and necessary. It provides a respectful answer to Trump’s call for judicial silence, and teaches that checks and balances are essential to freedom. This is a lesson that Trump, a former business tycoon, must come to appreciate as he wields the awesome power of the presidency.

Turning to the underlying question, the panel first addressed whether Trump is likely to prove that his order is constitutional. It concluded that he is not likely to do so, at this preliminary stage.

The Muslims are obviously pleased by the decision of the appeals court and the beautiful example set by the three judges, yet a large majority of them rather than standing in awe of the US constitution with its checks and balances, have an affinity for the vague concept of ‘Shariah Law.’

What is Shariah Law or sharia? I will use both these terms interchangeably in this article.

Shariah Law or sharia is different things for different people. For the Islamophobes, it is bogeyman for fear mongering, to stir up support for the right wing agendas in the Western countries. For the religious parties in the Muslim majority countries it is get the vote out slogan, by appealing to the religious sentiments. For the Mullahs it is a tool to gain political influence and maintain their street power by controlling the mobs.  For the average Muslim, who is religious in personal life but naive about the ways of politics and governance, it is an amorphous concept that is never well defined. It is perhaps his or her desire for utopia, for a better world with greater justice, prosperity and happiness. It is a dream like in America what has been described by the political leaders in their stump speeches as the “American Dream!”

But what if we mean by ‘Shariah Law’ the law of the land or the constitution for the country or a few specific laws as part of the constitution? Now, it is crystallized into a precise concept and we can more accurately talk about it.

According to a detailed survey of the Muslim populations  by the Pew Research Center:

Overwhelming percentages of Muslims in many countries want Islamic law (sharia) to be the official law of the land, according to a worldwide survey by the Pew Research Center. But many supporters of sharia say it should apply only to their country’s Muslim population.

Moreover, Muslims are not equally comfortable with all aspects of sharia: While most favor using religious law in family and property disputes, fewer support the application of severe punishments – such as whippings or cutting off hands – in criminal cases. The survey also shows that Muslims differ widely in how they interpret certain aspects of sharia, including whether divorce and family planning are morally acceptable.

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Support for making sharia the official law of the land varies significantly across the six major regions included in the study. This in itself is proof enough that Shariah Law is not fundamental to Islam or a necessary part of faith or religion for the Muslims.  The wide range of support for it in different countries from 8% to 99% shows it is not like 5 daily prayers for all Muslims or fasting in the month of Ramadan where one will find shared ideas among all Muslims all over the world.  Shariah Law perhaps is a socio-cultural construct evoking different ideas and feelings among the masses of specific countries based on their history and life experiences.

In countries across South Asia, Southeast Asia, sub-Saharan Africa and the Middle East-North Africa region most favor making Sharia Law their country’s official legal code. By contrast, only a minority of Muslims across Central Asia as well as Southern and Eastern Europe want sharia to be the official law of the land.

These differences are very telling as we will examine further shortly.

In South Asia, high percentages in all the countries surveyed support making sharia the official law, including nearly universal support among Muslims in Afghanistan (99%). More than eight-in-ten Muslims in Pakistan (84%) and Bangladesh (82%) also hold this view. The percentage of Muslims who say they favor making Islamic law the official law in their country is nearly as high across the Southeast Asian countries surveyed (86% in Malaysia, 77% in Thailand and 72% in Indonesia).15

Support for sharia as the official law of the land also is widespread among Muslims in the Middle East-North Africa region – especially in Iraq (91%) and the Palestinian territories (89%). Only in Lebanon does opinion lean in the opposite direction: 29% of Lebanese Muslims favor making sharia the law of the land, while 66% oppose it.

Whereas 99% in Afghanistan want sharia as part of the constitution only 12% want it in Turkey. What do the Turkish people know that the Afghanis don’t?  People who do not know about Islam or about these two countries may think that these are some real differences and opinions. The fact of the matter is there is no one book describing the Shariah Law or any constitution of any country or any collection, in the recent centuries that can be described as Shariah Law. Turkey has seen greater influence of Europe and secularization and it seems that the people there have a better understanding of how constitutions and countries work. These statistics and polls just reflect that the Turkish people have greater realization that there is no magical wand called, “Shariah Law,” which will take away all their miseries and concerns and give them utopia.

Am I just making a tall claim in favor of those who do not want Shariah Law or do these views hold some merit?

The 99% from Afghanistan favoring sharia, have not shown in the last century, how a constitution under Shariah Law would be different from one without Shariah Law, in salient features and what real differences would it create.  I also predict that they will never be able to cogently make an argument for their choice. I know this as a fact from having closely examined the history of the corresponding 84% for Shariah Law in Pakistan, since its creation in 1947.

The silence of the 99% Afghanis, the 91% of Iraqis and the 84% Pakistanis on the benefits and the details of the Shariah Law speaks volumes and is deafening.

The fact of the matter is that there are no specific laws that distinguish proposed or actual constitution of the Muslim countries from that of the non-Muslim or the Western countries.

Shariah Law is not the supremacy of a book or a person, a dictator, a president, a prime Minister, a martial law administrator, a saint, a prophet or a sport, movie or a war hero or an army general with a dozen stars on his shoulders or arms or even an institution, for that serves no useful purpose in day to day life. We just saw in the recent example from US appeals court that blessing and wisdom lies in a system of checks and balances rather than blind submission to any central authority.  The system of checks and balances in USA has served it well for 240 years by ensuring that the country cannot be derailed from its progressive course until all three branches go astray or on a wrong course. One branch of government can go astray or the other, but a system of checks and balances builds resilience in the country.

If Islam stands for any political principle, it stands for the supremacy of law and order and justice, a system where no one is above the law and no one is below it and the Western countries provide for it much better than any so called Muslim country or any medieval proponent of Shariah Law.  We need “Checks and Balances,” and not “Shariah Law.”

There are at least 75 verses in the holy Quran promoting justice and that is the only intent of Islam, in the sphere of governance that I know of. Otherwise, just implementing specific punishments for a few crimes mentioned in the Quran or banning alcohol, while the population begins to die of narcotic and other drug abuse, will not do any thing worth while for any Muslim country.

There is another way to make the point that a constitution formulated under Shariah Law does not offer any advantages over its absence.

The Pew Research Center survey of the Muslim populations conveniently divides the Muslim countries into two categories. It finds that support for making sharia the law of the land is often higher in countries where the constitution or basic laws already favor Islam over other religions.2 The political climate may have just affected how people respond to the polls. Majorities in such countries say sharia should be enshrined as official law, including at least nine-in-ten Muslims in Afghanistan (99%) and Iraq (91%). By comparison, in countries where Islam is not legally favored, roughly a third or fewer Muslims say sharia should be the law of the land. Support is especially low in Kazakhstan (10%) and Azerbaijan (8%).3

Muslim constitutions versus non-Muslims .png

One can see that the group of countries in the above picture led by Afghanistan with Islam as the favored official religion, do no better than the other group including Turkey, Kazakhstan and Azerbaijan. The success of the country heavily depends on how independent and effective the judiciary is in creating an atmosphere of law and order in the country. It has nothing to do with Shariah Law or mentioning the name of Islam in the constitution. One can actually argue that mentioning the name of Islam as official religion makes the country contrary to the true Islamic principles by indirectly taking away the religious freedoms of the non-Muslims and the non-believers.

Support for making sharia the official legal code of the country is relatively weak across Central Asia as well as Southern and Eastern Europe. Population here has better understanding that constitution and governance in the 21st centuries are complex issues and require choosing precise details, picking up from what is successfully working in different countries, including USA and other countries and understanding how and why they work. Fewer than half of Muslims in all the countries surveyed in these regions favor making sharia their country’s official law. Support for sharia as the law of the land is greatest in Russia (42%); respondents in Russia were asked if sharia should be made the official law in the country’s ethnic-Muslim republics. Elsewhere in Central Asia and Southern and Eastern Europe, about one-in-three or fewer say sharia should be made the law of the land, including just 10% in Kazakhstan and 8% in Azerbaijan.

People in Kazakhstan and Azerbaijan have seen Europe, they have seen capitalism, communism, Christianity and Islam. They are not naive like those hooked onto the opium of religion in Afghanistan, Pakistan, Iraq and Palestine territories, by the self seeking religious leaders of these countries, who use Shariah Law as a political tool to stay relevant.

In conclusion, there are no Aladdin’s lamps, there are no flying carpets to carry Muslim kings around, there are no magical wands, there are no instant fixes and there are no panacea for our problems. There is no utopia. There is no Shariah Law as a package. We have to examine, evaluate and debate the efficacy of each individual law, for its utilitarian benefit, to see how it serves the citizens of the specific country, without regard to race, ethnicity, religion or gender. Yes, you did hear me correctly, each law should serve every one not just the royal, political or religious elite.

Using religious lines as political slogans may be an ancient art form to win votes, but, the actual laws in real life are fiercely negotiated in legislative assemblies and then debated and implemented in civic life with the help of just and honest courts. This is what has happened in USA in the last 240 years. This is how nations and countries live their lives, honest and insightful judges build them.

Yes we can draw some inspiration and ideas for our constitutions or our laws from the Quran or the sayings of the prophet Muhammad, may peace be on him, or the Muslim history. But, that is all. The book or the prophet cannot do any more for us. We have to do it ourselves in the context of our times. If we borrow an idea from the seventh century Arabia it needs to be translated into the modern climate and new lingo for the 21st century.

Shariah Law is only a pipe dream. If someone wants to sell it to you, do not submit to him or applaud him or vote for him. Send him to me, for I have a beautiful bridge in New York to sell him, where he can collect toll for the rest of his life and become filthy rich.

Suggested Reading

Shariah and Constitution: A Personal Journey

Shariah and Constitution by Zia H Shah

A Litmus Test Proposed by Martin Luther King, for Trump’s Laws

Do Muslims Prefer Camels Over Modern Cars?

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