Comments on Shariah and America

The controversy over building an Islamic cultural center and
mosque several blocks from Ground Zero continues with President Obama joining
in. Michael Gerson explains in today’s Washington
, why it is an American President’s duty to uphold the rights of all
American’s and to defend America’s core values, as President Obama has done in
this instance:

Two of you have sent rather different but interesting
comments on my Daily Caller op-ed on "Shariah and
that I am sharing with you below:


Interesting but I think you are insufficiently critical of
Islam.  The Pope forbid Catholic nuns from opening a center near a concentration
camp site because he understood that it’s existence would be insensitive to
Jews.  The insistence of the Moslems to build near the 911 site shows
massive insensitivity at the least.  It is not just a few Moslem radicals
who commit unspeakable acts but look at all the Moslem countries that deny
fundamental freedoms to women, gays, other religions, journalists, etc, etc, look
at the tens of thousands of Moslems who rioted against the Danish cartoons and
killed people and destroyed millions in property.  Look at all of those
that cheered 911.  When Moslem Americans threatened the producers of
Southpark, the Moslem establishment was largely silent as they have been with
most of the other outrages.  I think that Hirsi Ali is right when she
suggests that we all stand up and say these behaviors do not meet civilized
norms for a religion in the modern world.  We know that many Imams preach
violence and hatred and act as foreign agents.  Every religion has its
assorted violent nut cases, but every major religion other than the Moslems has
acted quickly to condemn and squelch such people.  If they want respect it
is time they started showing respect for others – a good way to start would be
by agreeing not to build at the 911 site as an act of respect to all of those
who died there.


[Richard W. Rahn – former Chief Economist of the U.S.
Chamber of Commerce, author and columnist, former fellow Director of the Cayman
Islands Monetary Authority, and currently a Senior Fellow at the Cato Institute
and Chairman of Institute for Global Economic Growth]



As in the past, when spirit and time combine to permit, I am
commenting on your thoughtful piece on shariah law, mostly to highlight a few
items touched on too passingly:

1. The Cordoba House controversy is almost entirely more a
zoning issue than either a property or religious freedom issue. There are, I’ve
read, more than 100 mosques already in Manhattan. It seems unlikely all but a
very few people in the U.S. either object to these or would object to another
100 being built in New York City, by these individuals or others. If 100
mosques do not evoke controversy and one proposed "cultural center"
does, it almost certainly means it is not the area set-aside for prayer that is
at the heart of the issue.

It is, then, at bottom the location and the publicity
surrounding the intention to build so near the 9/11 site. One may well disagree
with a great many zoning laws and the attitude behind many zoning proposals (as
you and I surely do). One can understand, however, why many might, say, object
to an adult video store being located near an elementary school or a church.
One might even suspect that the intention was provocative more than commercial.
In any case, it is sure to evoke public controversy. A judgment then needs to
be made whether or not the result, including both the building of the center
and the hostile reaction to it, is close enough to the intentions of the

2. Law generally.

The late, great Harvard law scholar Harold Berman wrote
powerfully that only in the late 20th century (and now the early 21st) has the
idea developed that "law" was a single thing, namely positive,
legislated law. When Blackstone wrote his celebrated commentaries, there were
at least over half a dozen "legal systems" operating in England.
Overall, three legal themes were intertwined to form a larger understanding of
law: 1. moral/natural law – meaning the customs, including both simple
practices and those with moral meanings, that were embedded in various
communities. These were not explicit or precise and varied from village to
village in small ways, but were always part of the judgment as to "what
the law is". 2. Judge-made law or the conclusions judges, over long
periods of time, had come to decide in specific cases that were similar to an
issue before them. Call is precedent. 3. Positive law that legislatures enacted.
The notion that "LAW" now means some combination of the positive law
enacted by a legislative body and even a very narrow court decision by judges
is the only "LAW" has warped our understanding.

Thus, your larger understanding of shariah law invokes this
longer tradition of what law is and how it responds to changing times and

3. Shariah Law.

It is tendentious and misleading (or simply ignorant) to
speak of "shariah law" as if it is precise and universal. There is no
single "authoritative shariah law" that many commentators speak of.
Muslim women are instructed to be "modest" in public. Some take this
to mean simply modest dress and appearance. Some wear a scarf to cover their
hair (as St. Paul also argued for women in church; and Mother Teresa always
adhered to in public). Some argue for a burka or complete covering. Which is
"authoritative shariah law"?

As you say, there is a general sense among many Muslims that
"interest" is not allowed (as many Catholics also believed for
centuries). That seems an unfortunate approach in the modern world of finance
(although the excess of the use of credit is also perilous). Refusing to
separate a mortgage payment as part "principle" and part
"interest" seems an easy way around the prohibition and almost a semantic
dodge. Going into a rant against shariah law is similar to condemning
Christians for not wanting to invest in companies the activities of which they

The notion that the spooky because unknown "shariah
law" will be imposed on 330 million Americans is obviously far-fetched.

4. The Unity of Islam

Muslims are proud that there are over a billion Muslims in
the world. Those most eager to incite the West, speak as well in a way to
suggest that this is a unified entity for political or terrorist purposes. In
fact they are deeply fragmented. Even the use of "radical" or
"extremist" covers over that, however broadly or narrowly defined,
these groups are also fragmented.

Even so, "radical" and "extremist" do
not fully describe those Muslims that we should oppose with military force.
They are those Muslims who are quite willing to use violence against Western
people or assets. A civil war among factions, whether religious or not, in
Afghanistan or Iraq, Somalia or the Sudan, should interest us in only a tangential
way. Every terrorist is not a Muslim, although many are. Likewise every Muslim
that uses violence, even the vilest kinds (stoning someone for adultery or
homosexuality or whatever), is not someone the US military should be trying to
kill. For one, it is an impractical goal for a 330 million population who knows
very little about various cultures in Islamic countries. We simply cannot
achieve our goals — any more so than, say, an invasion of China to root out
their system of government.

Secondly, the attempt to root out violence between the various
Muslim communities and within their communities (such as honor killings) will
turn their violence against us.

In short, a longish way of saying that I think I agree with
you — once again.



[Robert A Schadler, Senior Fellow in Public Diplomacy at the
American Foreign Policy Council, Board Member of the Center for the Study of
Islam & Democracy Secretary, former
editor of The Intercollegiate Review,
during the Reagan administration he was
the Director of the Office of
International Visitors and Chief of Staff to the Director of US Information Agency and is a fellow member
of the Philadelphia Society.]


Best wishes,


Shariah and America

Should an Islamic community center and mosque be built a few blocks from the site of the collapsed World Trade Center in New York? The American Center for Law and Justice (ACLJ) doesn’t think so on the grounds, they say in a lawsuit brought against the New York Landmarks Preservation Commission last week, that the Commission did not adhere to proper procedure when it refused to designate the property on which the facility would be built an historic landmark. The basis for requesting historic landmark status was that some of the debris from the World Trade Center fell on it. The Commission’s unanimous ruling preserves the right of the owners of the private property to permit Feisal Abdul Rauf and his wife, Daisy Khan, who Time magazine characterize as “modernists and moderates  who openly condemn the death cult of al-Qaeda and its adherents” to proceed with their intention to build the Cordoba House Islamic Cultural Center there. Score one for private property.

According to Jeffery Goldberg, writing in the Atlantic “Feisal Abdul Rauf, is an enemy of al Qaeda, no less than Rudolph Giuliani and the Anti-Defamation League are enemies of al Qaeda.  Bin Laden would sooner dispatch a truck bomb to destroy the Cordoba Initiative’s proposed community center than he would attack the ADL, for the simple reason that Osama’s most dire enemies are Muslims…. He represents what Bin Laden fears most: a Muslim who believes that it is possible to remain true to the values of Islam and, at the same time, to be a loyal citizen of a Western, non-Muslim country. Bin Laden wants a clash of civilizations; the opponents of the mosque project are giving him what he wants.”[1]

The bigger picture, however, is the serious damage this controversy has done to our struggle to contain al Qaeda and radical Islamists. Our enemies are radical Islamists, not Islam or Muslims. Success depends heavily on our ability to isolate these extremists from the broader Islamic community of which they claim to be a part. The hypocrisy of the ACLJ, which in the past has filed suits “that argue that religious freedom trumps land use laws,”[2] though obvious, is not the issue. The damage comes from the clear message to the world’s 1.5 billion Muslims that many Americans blame all Muslims for the terrorist acts of a handful of political fanatics claiming to act in the name of Islam. ACLJ attorney Brett Joshpe told The Daily Caller: “Would I be personally involved in this matter if this were a church? No. And the reason why is because if it were a church it wouldn’t be offending and hurting the 9/11 victims’ families”[3] Score one for transparency, ugly though it is.

Too many Americans who should know better have taken up an unwarranted and
unhealthy attack on Islam.  Consider the claims of some that shariah law violates American law and
basic American principles. There are several strains to this argument.

One strain is that shariah law is foreign and that it is some how inappropriate to permit or give any scope to foreign laws in America. This misunderstands the nature of common law, which is the continuous discovery of a natural law that reflects people’s expectations of proper behavior between people.  In their compelling book, Money, Markets, & Sovereignty, Steil and Hinds present some of the history of the absorption of foreign law into our domestic laws. “The hugely important Lex
or the international “laws merchant,” which developed privately and spontaneously to govern commercial transactions, dates from the twelfth century, before the consolidation of states….  The Lex Mercatoria was absorbed into English common law in the seventeenth century, where judges, who were paid out of litigation fees, initially treated it with some contempt. Competition from continental civil law countries, however, which frequently proved more accommodative to the Lex Mercatoria, ultimately forced English judges to recognize commercial custom in international trade in order to attract cases. In the United States, widespread early adoption of the practice of commercial arbitration, as well as the history of state jurisdictional
competition, contributed to greater acceptance of the Lex Mercatoria than in England. The U.S. Uniform Commercial Code thus reflects the fact that business practice and custom are the primary source of substantial law.”[4] Score one for common law.

A more serious claim, voiced for example by author and lecturer Nonie Darwish, is that “the goal of radical Islamists is to impose sharia law on the world, ripping Western law and liberty in two.”[5] According to Newt Gingrich: “radical Islamists are actively engaged in a public relations campaign to try and browbeat and guilt Americans (and other Western countries) to accept the imposition of sharia in certain communities, no matter how deeply sharia law is in conflict with the protections afforded by the civil law and the democratic values undergirding our constitutional system.”[6] Gingrich cites a New Jersey state judge ruling in June 2009 that “rejected an allegation that a Muslim man who punished his wife with pain for hours and then raped her repeatedly was guilty of criminal sexual assault, citing his religious beliefs as proof that he did not believe he was acting in a criminal matter.” This behavior obviously violates American law and core values and an
appellate court overturned the judge’s outrageous ruling. But this does not imply that Muslims should not be permitted to observe other (in fact most) provisions of shariah in America if they chose too. It also fails to take account of the fact the shariah law, which largely deals with requirements of personal behavior such as daily prayer (salāh), fasting in Ramadan (sawm), the
pilgrimage to Mecca (haj), charity (zakāt), a tax of 20 percent on untaxed, annual profit (khums), and struggling to please God. (jihād), is subject to interpretation by Muslim scholars. Traditional shariah has five main schools of interpretation.[7] In this respect it is rather like the Christian Bible, which is subject to different interpretations by different Christian scholars and denominations. Similarly some of the more extreme and cruel teachings of the Bible are broadly rejected by Christians (and American law).

Rowan Williams, the Archbishop of Canterbury stated the issue well in a strangely controversial lecture on “Civil and Religious Law in England: a Religious Perspective” delivered at the Royal Courts of Justice February 7, 2008.[8]  In a BBC Radio 4 interview the same day the Archbishop elaborated that: “‘as a matter of fact certain provisions of sharia are already recognised in our society and under our law’. When the question was put to him that: ‘the application of sharia in certain circumstances – if we want to achieve this cohesion and take seriously peoples’
religion – seems unavoidable?’
, he indicated his assent”[9]

“In his lecture, the Archbishop sought carefully to explore the limits of a unitary and secular legal system in the presence of an increasingly plural (including religiously plural) society and to see how such a unitary system might be able to accommodate religious claims. Behind this is the underlying principle that Christians cannot claim exceptions from a secular unitary system on religious grounds (for instance in situations where Christian doctors might not be compelled to perform abortions), if they are not willing to consider how a unitary system can accommodate other religious consciences. In doing so the Archbishop was not suggesting the introduction of parallel legal jurisdictions, but exploring ways in which reasonable accommodation might be made within
existing arrangements for religious conscience.”[10] Score one for common sense.

The level of ignorance or in some cases deliberate misinformation in an effort to tarnish all Muslims as enemies of decent, freedom loving Americans, can be illustrated by attacks on shariah compliant mortgages (or shariah compliant financial instruments more generally).  The Royal Bank of Canada, which offers such products to those who want them, explains the background of their shariah compliant mortgage products as follows: “Shariah law is interpreted on a case-by-case basis by recognized scholars of Islam. It forbids usury, including payment or receipt of interest on monies borrowed or invested. As such, a traditional commercial mortgage would not be a Shariah compliant way to fund a property purchase.”[11] The resulting mortgage contract has followed the guidance of the Shariah Supervisory Board.  Shariah-compliant financial instruments are equity rather than debt, producing, hopefully, profits rather than interest payments. Funds may not knowingly be invested in certain “unethical” activities or products such as gambling, alcohol and the consumption of pork. In this respect this instruments are reminiscent of Green investment funds. You might or might not be interested in such funds, but they hardly represent a threat to the American Way of Life.  Shariah compliant mortgages charge no interest, but establish a rent-to-own agreement that has a very similar end result to a conventional mortgage. If the label “Islamic” or “shariah compliant” where not attached to such mortgages, their critics might embrace them as a neat idea. Score one for sound finance.

Balancing faithfulness to our respective personal religious beliefs and practices with the requirements and laws of commercial, social, and political life can be a challenge, but America does it better than most countries to our great benefit. We have no reason to be at war with Islam. Those who give the impression that we should be are serving Bin Laden’s goals. Those Muslims, or anyone else, who are not willing or able to live in America and practice their religion within
the limitations of our laws and traditions are not welcomed here and should not come. Those who attempt to make Islam and its believers into our enemies are not welcomed either.

[1] Jeffery Goldberg, “If He Could, Bin Laden Would Bomb the Cordoba Initiative”, The Atlantic, August 4, 2010.

[3] Ibid.

[4] Benn Steil and Manuel Hinds, Money, Markets, & Sovereignty, (New Haven and London), Yale University Press, 2009, pages 23 and 25.

[5] Quoted by Gary Lane, “Sharia Law Tearing the West in Two”, February 22, 2009, Creeping Sharia website.

[6] Newt Gingrich, “No Mosque at Ground Zero” Human
, 7/28/2010

[7] Dr Irfan Al-Alawi, Stephen Suleyman Schwartz, Kamal Hasani,  Veli Sirin, Daut
Dauti, Qanta Ahmed, MD, A GUIDE TO SHARIAH LAW and ISLAMIST IDEOLOGY in WESTERN EUROPE 2007-2009, Center for Islamic Pluralism

[9] Quoted fromthe Archbishop’s website:

[10] Ibid.