Andrew F. March: What Shari'a Actually Says

[Andrew F. March teaches Western political philosophy and Islamic law and political thought at Yale University. He is the author of Islam and Liberal Citizenship: The Search for an Overlapping Consensus.]

Every American now knows something about"shari'a" -- the Islamic religious law. What most know, or think they know, about shari'a comes to be symbolized by a few violent rules -- stoning, cutting off hands or lashing. Other practices many Westerners find disturbing, like veiling women's faces, regulations on female marriage autonomy or restrictions on the freedom of religion, are commonly justified in the language of Islamic law.

Let's be clear. Shari'a is not the Universal Declaration on Human Rights. All of the above practices are long-standing features of Islamic law. Those of us disturbed by the rising tide of anti-Muslim sentiment in the West, which is often disingenuously presented as"resisting shari'a," do not need to defend Islamic law to defend the rights of our Muslim brethren to dignity, respect and equality. When the Quran-burning pastor in Florida says that all he wants to do is to take a stand against shari'a, you know that the shari'a-meme has gone off the rails.

At the same time, it has to be understood that while shari'a is not the Universal Declaration on Human Rights nor is it Mein Kampf or a list of sadistic punishments. For better or for worse, shari'a remains idealized by many (not all) Muslims as the expression of perfect divine justice. If so many Americans are now going to anoint themselves instant experts on Islamic law, then it behooves the rest of us to do some of their thinking for them. We need a better understanding of what Muslims think of when they think of shari'a and why it has the capacity to both justify and also oppose such things as stoning and indiscriminant terrorism.

To do this, let's take the example of Anwar al-Awlaki, the Yemeni-American"shaykh" who has lent his support to the Fort Hood attack and the attempted Christmas and Times Square bombings. To be sure, Awlaki's views on American foreign policy and the need for Muslims to be loyal to fellow Muslims are common in the Islamic world. But his call for American Muslim soldiers to attack American interests is not only a call to treason against America, but a call for Muslims to violate shari'a. How so?

First, what is Islamic law? Both Muslims and non-Muslims often ask"What does Islam say about x?" or"Is y permitted in Islam?" And while there is never a shortage of Muslims and non-Muslims willing to give straight answers to such questions, such straight answers can be deceptive. For Islamic law, shari'a, is not a code or an agreed list of rules. Rather, Islamic law is a field of debate and argumentation where learned scholars argue with one another about what the law permits or requires on the basis of evidence and reasoning. Often that evidence is from the Quran or the sayings and doings of the Prophet Muhammad (the hadith, or the sunna), but just as often it is about trying to find the right analogies to older, more settled questions in Islamic law, or about arguing over the spirit and purposes of the law, or even about arguing over the political values and goals which the law purportedly advances.

This is why for every Awlaki proclaiming Nidal Hasan a"hero," there will be a dozen other scholars (not to mention civic activists) condemning what Hasan did as"against Islam." However, the fact that we hear such radical disagreement means neither that Islamic law is just about your politics nor that one of the sides is right and the other is lying. Instead, we should ask how the majority of Islamic legal scholars in the various schools have asked and answered such questions, on the basis of what kind of proof, and whether there is a predominant position.

So, who's right about shari'a -- Awlaki and Fox News or those countless Muslims who condemned the Fort Hood attack?

Asking such a question may be naive, but it is not absurd. In Islamic law, it is perfectly sensible to ask whether a Muslim citizen of a non-Muslim country, belonging to a non-Muslim military, may attack the members of that military if it is engaged in hostilities with Muslims.

Hasan's massacre was a crime in Islamic law, even for those Muslim scholars who believe that the US is waging aggressive wars against Muslims, that Muslims may not join the US military, and that Muslims are obligated to resist the US military. Even for those religious authorities Hasan committed a very specific Islamic crime -- the crime of betraying a trust or a contract. This is the crime of treachery or perfidy, known as ghadr in Islamic law. In other words, there are many Sunni religious scholars who may share the politics of Anwar al-Awlaki as pertains to Iraq and Afghanistan but who do not join in calling Nidal Malik Hasan a"hero."

From an Islamic legal perspective there are four primary questions at stake here:

1. Is it permissible to serve in a non-Muslim army?
2. Is it permissible to fight Muslims on behalf of non-Muslims?
3. What should a Muslim citizen of a non-Muslim state do if asked to fight Muslims?
4. Is it ever permissible to attack soldiers within your own non-Muslim army as an act of jihad?

Suffice it to say that for the first three questions, the majority of Sunni religious scholars have said that (1) Muslims shouldn't serve in non-Muslim armies if possible, that (2) they may never fight fellow Muslims on behalf of non-Muslims or"assist in killing a believer even by half a word," and that (3) if asked to kill fellow Muslims believers should submit to torture or even execution. However, in the contemporary period, pragmatic scholars like Yusuf al-Qaradawi have given fatwas allowing Muslims to serve in non-Muslim armies, even against Muslims if they can serve in non-combatant capacities.

However, if it is okay in Islamic law to fight U.S. soldiers in Iraq and Afghanistan (most scholars say this is a duty, in fact), why is it not okay to kill US soldiers in America?

Jihad and Treachery: Why Domestic Terrorism Falls Afoul of Islamic Law

While Islamic law places an extremely high premium on loyalty to the Muslim community, including through service in legitimate wars, that loyalty is not without rules. One of the most basic rules is that non-Muslims are eligible for contracts and that those contracts must be honored. All Islamic scholars believe that Muslims living in the West, whether native born, naturalized or legal residents, are under a firm" contract of security" ('aqd al-aman) which renders all non-Muslim life, property and honor inviolable. Even Muslim scholars who support certain jihadi activities by and large tend to believe that Muslim citizens of non-Muslim polities may not engage in such activities against their own states.

It is difficult to exaggerate how seriously most orthodox Sunni scholars take the obligation to honor contracts. Consider, for example, the position of one of the greatest medieval legal authorities in Sunni Islam, Imam al-Nawawi (died 1277):

If non-Muslims capture [a Muslim soldier] and then they free him on the condition that he is under a guarantee of security [aman] from them, then they are also under a guarantee of security from him on the basis of what the Almighty has said:"O you who have believed! Fulfill all contracts." [5:1] If they free him under a guarantee of safety but without asking for one themselves, then even in this case the majority say that they are still under such a guarantee on his part because of their placing him under a guarantee.

Note what this 13th century Islamic scholar is saying here: that even in the case of POWs waging a legitimate jihad, the mere suspicion that one believes oneself to be under a mutual" contract of security" (aman) renders fighting enemy soldiers prohibited. Of course, if this holds for POWs how much more does it hold for a citizen who voluntarily enlists in his (non-Muslim) country's military?

What is sometimes hard for a Western audience to appreciate is that an Islamic scholar (or layperson) can hold the following views with no internal contradiction:

• That America is waging wars of aggression in the Middle East
• That defensive jihad against America is required in Iraq and Afghanistan.
• That all persons aiding the US war effort in Iraq and Afghanistan countries are legitimately targetable.
• However, that a Muslim person with a" contract of security" with the US may not attack it, especially its civilians, especially if that Muslim is a citizen.

However hard it is for us to understand, that basic position is probably the predominant one in mainstream Sunni religious circles, even if the taboo on treachery and targeting civilians is sometimes difficult to perceive in the fog of war, apologetics and recriminations. For what Hasan committed last Fall was not only cold-blooded murder of his colleagues and comrades -- something anyone, Muslim or not, can find repulsive and evil without any religious rationale -- but was also, from a strict Islamic legal standpoint, an Islamic legal crime, a crime against shari'a. The Prophet Muhammad himself spoke very clearly on the punishment for the crime of ghadr (treachery or perfidy):

"He who betrays a trust will have a flag stuck in his anus on the Day of Judgment so that his treachery may be known."