Sharia über Alles versus Western Justice
How is it that intelligent people cannot see the lesson of history when sharia enters a non-Islamic society, step by step? Yale Assistant Professor of religious studies Eliyahu Stern's 9/2/11 NY Times op-ed ("Don't Fear Islamic Law in America") vilifies those who seek fair, rational legislative remedies to the encroachment of Islamic law (Sharia) in America as "stigmatizing Islamic life"1. Stern's vitriol is directed specifically at SB 1028, a bill which was recently passed by the Tennessee General Assembly, and includes this straightforward language regarding sharia2:
This bill defines "sharia" as the set of rules, precepts, instructions, or edicts which are said to emanate directly or indirectly from the god of Allah or the prophet Mohammed and which include directly or indirectly the encouragement of any person to support the abrogation, destruction, or violation of the United States or Tennessee Constitutions, or the destruction of the national existence of the United States or the sovereignty of this state, and which includes among other methods to achieve these ends, the likely use of imminent violence. Under this bill, any rule, precept, instruction, or edict arising directly from the extant rulings of any of the authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafi'i, Hanbali, Ja'afariya, or Salafi, as those terms are used by sharia adherents, is prima facie sharia without any further evidentiary showing.
Michael Nazir Ali was the first bishop of Raiwand in Pakistan's West Punjab (1984-1986), who emigrated to become the initial non-white diocesan bishop in the Church of England. During September 2009, he gave up his English bishopric to work full-time in defense of beleaguered Christian minorities, particularly within Islamdom. Nazir Ali has authored Islam: A Christian Perspective (1984), Frontiers in Muslim-Christian Encounters (2006), and From Everywhere To Everywhere (2009)3.
Contra Stern's distressingly uninformed polemics4, Nazir Ali offered these scholarly and experience-based observations from his adopted Britain (8/7/11) -- observations which support Tennessee's eminently reasonable legislative solution5.
To understand the impact of Sharia law you have to look at other [i.e., Islamic] countries. At its heart it has basic inequalities between Muslims and non-Muslims, and between men and women. The problem with Sharia law being used in tribunals [in Britain] is that it compromises the tradition of equality for all under the law. It threatens the fundamental values that underpin our society.
Karl Binswanger was a German scholar renowned for his pioneering 1977 study of the discriminatory and degrading conditions imposed upon non-Muslim "dhimmis" -- predominantly Christians -- subjugated under Ottoman Turkish sharia in the 16th century6. Binswanger describes the key role played by the creation of Muslim "satellite" colonies during the Islamization of these vanquished Christian societies6a:
Geographic integrity is shattered by implanting Islamic nuclei.; The sectarian reference point of Dhimmi communities is removed, and further sectarian pruning occurs according to Islamic standards.; The autonomy of Dhimmis is reduced to an insubstantial thing... They are driven out the moment that Islamic nuclei appear in the area.; Dhimmis' possession of their churches is granted. These are closed or razed as soon as a mosque is established in their neighborhood...Regulations in the social area...demoralize the individual: [they] are consciously instituted for their degradation.; The social environment of the Dhimmis is characterized by fear, uncertainty and degradation.
During 1990, Binswanger published three remarkably prescient essays on the (primarily Turkish) Muslim immigrant community of Germany6b. Binswanger opens his 1990 essay, "Islamic Fundamentalism in the German Federal Republic: Development, Inventory, Prospects," with this ominous illustration6c:
"We reject reform and modernization. We will keep fighting until a godly order is established!" This quotation is not from Cemalettin Kaplan, the "Khomeini of Cologne", but rather from Kadir Baran, the West German national vice-chairman of the "Idealist Associations" ["Idealistenvereine"], in other words, from a 'Grey Wolf".. [u]ntil the Autumn of 1987 the federation's ideology was purely nationalistic, chauvinistically Turkish. This is symptomatic of a development that one can observe among Turks in the Federal Republic of Germany, too, since Khomeini's victory over the Shah: Islamic fundamentalism is on the march...
He then demonstrates how the strident re-affirmation of Islamic identity within Germany's Turkish immigrant population engendered6d "an increasingly intense demonization of the culture, legal and social order of the host society: the image of Germans as enemies."
Central to this disturbing process was the inculcation of validating Islamic (i.e., Koranic) motifs which promote hostility to non-Muslims6e:
In this regard all the unions [i.e., the alphabet soup of Turkish Muslim organizations in Germany] exhibit an astounding congruence in their ideology, which ultimately is derived from the Qur'an. The centerpiece of its preaching about the distance to be maintained from the "unbelievers" consists of three verses from the Qur'an, variations on which appear in publications, addresses and on the banners of all unions, either literally or in paraphrases and allusions. The significant thing is that in all the unions these verses are always central to the discussion about models of integration. Sura 5, verse 51 of the Qur'an prescribes: "You believers! Do not take Jews and Christians as friends. They are friends with each other (but not with you). When one of you joins them, he belongs to them (and no longer to the community of believers)." "To join them" is interpreted today, however, as external adaptation to the European way of life (including New Year's celebrations) and any form of integration/assimilation. Besides this purely normative prohibition of amicable dealings with "unbelievers", two other Qur'an verses are frequently cited, which give a reason for keeping one's distance (and therefore in the case of Turkish migrant workers: self-isolation: "Jews and Christians will not be happy with you as long as you do not follow their profession of faith" (Sura 2, verse 120). "You believers! Do not take as your confidants and intimate friends people who are outside your community. They never tire of causing disorder among you, and would like affliction to befall you. Their own statements make their hatred plain enough, but the hatred and wickedness that they secretly harbor within them are much worse" (Sura 3, verse 118).
Arguably the most accomplished (and easily the most unapologetic) scholar of how the Ottoman Turks progressively imposed the sharia on non-Muslims, Binswanger became alarmed by the obvious modern parallels to that phenomenon he observed in the behaviors of their contemporary Turkish descendants in Germany. Thus, he concluded in 19906f:
A clearly hostile image of German society is developing and is being preached to more and more Turkish migrant workers. Simultaneously, however, all the umbrella groups reinforce the desire to stay permanently in the Federal Republic of Germany; this then is possible only if the resident Turkish populace walls itself off from the Germans to a great extent -- otherwise it would run into a conflict of faith. The more they reduce their contact with the Germans, the more the Turks have to set up their own system -- this explains the ever wider spectrum of union activities, whose declared goal is the "preservation of identity". Through the spread of fundamentalism the recreational clubs of the past have moved into the self-isolation of an all-encompassing "parallel society". It is a long way from the recreational clubs of the former bachelors, via the plain mosque unions when they began to bring a wife and a child later, to a closed society after politics took them under its care and the "Khomeini factor" reminded them that Islam is more than quiet prayer in your little room: namely an all-encompassing rule of life willed by God that forbids any adaptation to, any friendly or trusting relations with "infidels" on an equal footing. The expression of this change of consciousness (or new self-awareness) and of this heightened sense of worth is their self-isolation today, which for the religiously reawakened is a more authentic home than secularist Turkey. Yet this is only a transitional stage, admittedly a necessary one, in order to reach the final goal of Islamic fundamentalism: finally to create for oneself a homeland in which one can accomplish Allah's will. This is evident in the final examination of a four-year AMGT [i.e., The "National View Organization in Europe" founded by Necmettin Erbakan's National Welfare Party as an offshoot of the youth organization "Akincilar" (roughly: "Blitzkrieg warriors")] course on the Qur'an and the "right" answer to it: "Q. What day in the future would be in your opinion the holiest day?" "Answer: Our happiest day would be the day on which the Islamic State is founded and the Muslims get their Caliph again."
Twenty-one years later, author and veteran television journalist Joachim Wagner has just published his analysis of the parallel sharia-based Islamic "legal" system burgeoning in Germany, entitled Richter ohne Gesetz ("Judges without Laws"). Consistent with Nazir Ali's assessment of the deleterious impact of Britain's Muslim "tribunals," Wagner's alarming investigation -- summarized in English during a two-part Der Spiegel series -- elucidates how what he terms "Islamic shadow justice" undermines Germany's Western constitutional legal system, ultimately abrogating even German criminal law6g.
The parallel, indeed superseding application of sharia within Germany's Muslim community is a widespread, dangerous phenomenon according to Wagner's research7.
As far as I know, very prevalent. There are no reliable statistics, since these mediations take place almost exclusively in secret. But criminal investigators who specialize in organized crime and violence within Muslim immigrant families have confirmed for me that in nearly every conflict in this milieu, the first attempt is to find a solution outside the German justice system.
These arbitrators try to resolve conflicts according to Islamic law and to sideline German criminal law. We see witness testimony withdrawn (from German courts) and accusations trivialized to the point where an entire case runs aground. The justice system is "powerless," partly because it hasn't tackled the problem vigorously enough.
Sheikh Abu Adam, wife-battering8, polygamist9 imam of the Darul Quran Mosque in Munich, illustrates the tragic, dangerous perversity of Germany's tacit acceptance of sharia as a "communal" alternative legal system.
A Munich-based arbitrator, Sheik Adam maintains that it is a religious duty to mediate among the Muslim faithful. The imam, who lives with three women, and, in accord with classical Islamic understanding10, believes that Islam is an all-encompassing theo-political ideology, described to Der Spiegel how he applies his sharia-based legal method11.
He invites both parties to visit him at the mosque, listens to both sides, and ultimately has them sign a peace treaty. The important thing, he says, is not who's right and wrong, and evidence is no particular help -- the important thing is to find a compromise. In nine out of 10 cases, the people respect his decision, he says.
Adam added unabashedly, despite ignoring accusations of running a shadow justice system12:
My judgment is fairer than the government's. I tell my people, don't go to the police. 'We'll take care of this conflict among ourselves.' I'm making less work for the police.
Sheikh Adam gave a lecture at Munich's Catholic University entitled "An Islam which distances itself from violence," shortly before being arrested (12/10/10) for allegedly assaulting his spouse so violently that she suffered a broken nose and shoulder and numerous cuts and bruises. Media reports claimed that the woman, who has borne one of his ten children, wanted to live a more "Western" lifestyle, and was allegedly attacked by him after expressing this wish to her husband. An icon of Germany's Islamic parallel Islamic "justice" system, Sheikh Adam purportedly shouted Koran 4:34 at his wife as he beat her13.
(E.g., Shakir translation14: "Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great[.]")
Sheik Adam's abusive (if Koran-sanctioned) misogyny (and polygamy; see Koran 4:315) notwithstanding, there is no debating that his defiant rejection of Western evidentiary methods for establishing legal truth (and right versus wrong) reflects mainstream sharia-based jurisprudence. Joseph Schacht (d. 1969), arguably the pre-eminent 20th-century Western scholar of Islamic law, made these salient observations about evidence and legal proof according to the sharia in his classic "An Introduction to Islamic Law"16:
The emphasis of the Islamic law of procedure lies not so much on arriving at the truth as on applying certain formal rules...If both parties produce evidence, the number of the witnesses produced by each, beyond their minimum number, is irrelevant. There is no examination of the witnesses, or the likelihood of their testimony being true...[I]n cases concerning hadd punishments (i.e., defined by the Muslim prophet Muhammad either in the Koran, or the hadith included17: (lethal) stoning for adultery; death for apostasy; death for highway robbery, when accompanied by murder of the robbery victim; for simple highway robbery, the loss of hands and feet; for simple theft, cutting off of the right hand; for "fornication," a hundred lashes; for drinking wine, eighty lashes) the evidence of women is not admitted, and in the case of zina ("fornication") four male witnesses are required (notably. if a woman claims to have been raped!)...the dhimmi (non-Muslims vanquished by jihad, and living under Sharia jurisdiction) cannot be a witness, except in matters concerning other dhimmis...
N.T. Coulson, another renowned 20th-century scholar of the sharia, elaborated further on "matters of procedure" under Islamic law antithetical to Western conceptions of the rule of law17a. Coulson reaffirmed the flimsy nature of sharia-based "evidentiary proof" while elucidating, under the sharia doctrine of "siyasa" ("government," or "administration"), which grants wide latitude to the ruling elites, how arbitrary threats, beatings, and imprisonments of defendants were permissible to extract "confessions," particularly from "dubious" suspects. Moreover, plaintiffs too could be subjected to bizarre, and equally arbitrary and painful, procedural methods for ascertaining "legal truth"17b.
[T]he strict Sharia rules of evidence, which in general terms limit legal proof to the oral testimony of two witnesses possessing the quality of adala (probity) and, failing such proof, give effect to the defendant's oath of denial, are scarcely suited to the effective maintenance of law and order. Recognizing the need for these rules to be supplemented, particularly in criminal matters...the jurists admit the power of the ruler to employ such methods as the use of threats or the extortion of confessions by corporal punishment and imprisonment, finding the necessary authority in the practice of the early Islamic rulers. The Caliph Ali, it is alleged, in order to discover the truth of the plaintiff's claim that he had been rendered dumb as the result of an assault, ordered that his tongue be pierced with a needle; if red blood appeared the plaintiff was lying, but if the blood was black he was indeed dumb. All such stratagems are, according to [the classical Muslim jurist] Ibn Farhun17c [d. 1397], "good siyasa."...Particularly harsh treatment is recommended for the individual of reputedly bad character whose guilt is suspected but cannot be proved in orthodox fashion. He should be subjected to rigorous examination, with beating and imprisonment if necessary, for [quoting Ibn Farhun] "were we simply to subject each suspect to the oath and then free him, in spite of our knowledge of his notoriety in crime, saying: 'We cannot convict him without two adl witnesses [witnesses of probity]', that would be contrary to siyasa Sharia." Nor, in the event of the subsequent release of the suspect, is there any question of a remedy for malicious prosecution or false imprisonment. It is only where no proof is forthcoming and the person charged is of such high repute that none would normally suspect him of the alleged offense that the accuser will be punished...[I]dealing with defamatory statements other than the false accusations of unchastity or illegitimacy which entail a hadd penalty, certain jurists would prescribe twenty-five lashes for calling a person "a criminal" or "a wrongdoer," ten lashes for calling a Muslim "a Jew," and ten, fifteen, or twenty-five lashes for a false imputation of theft.
Clearly, Sharia "standards" which do not even seek evidentiary legal truth, and allow threats, imprisonment, and beatings of defendants to extract "confessions," while sanctioning explicit, blatant legal discrimination against women and non-Muslims, are intellectually and morally inferior to the antithetical concepts which underpin Western law.
The late Kirsten Heisig, a juvenile court judge in Germany, underscored a year ago the inevitable consequences of relegating legal decisions to Muslim arbitrators such as Sheikh Adam18:
The law is slipping out of our hands. It's moving to the streets, or into a parallel system where an imam or another representative of the Koran determines what must be done.
Moreover, Joachim Wagner's "Judges without Laws" documents judges' and prosecutors' recollections of threats toward public officials and systematic interference with witnesses. For example, Stephan Kuperion, a juvenile court judge in Berlin, noted, "We know we're being given a performance, but the courts are powerless." And federal public prosecutor Jörn Hauschild provided this ominous warning: "It would be a terrible development if serious criminal offenses in these circles could no longer be resolved. The legal system would be reduced to collecting victims"19.
Wagner himself made this astute diagnosis of the current predicament to Der Spiegel, and proffered an uncompromising interim resolution20:
They're [German public prosecutors and judges] overwhelmed, because they don't know how to react. They're in the middle of a legal case, and suddenly there's no evidence. Eighty-seven percent of the cases I researched either were dismissed or ended with an acquittal when Islamic arbitrators were involved.
Prosecutors need to investigate Islamic arbitrators more intensively. If they had done so sooner, the arbitrators would have been convicted of obstruction of justice long ago. And certain lawyers need to stop behaving as if they were mere servants to a parallel justice system. They allow themselves to be directed by their clients' desires, regardless of truth and justice. And finally, my plea would be for judges to hear witnesses earlier, which would reduce the arbitrators' influence.
But Wagner is keenly aware of the more profound, fundamental incompatibility of Western law and sharia, the latter being21:
Very foreign, and for a German lawyer, completely incomprehensible at first. It follows its own rules. The Islamic arbitrators aren't interested in evidence when they deliver a judgment, and unlike in German criminal law, the question of who is at fault doesn't play much of a role.
Nearly six decades earlier, Robert H. Jackson, an associate justice of the United States Supreme Court (1941-1954), who also served as the chief United States prosecutor at the Nuremberg Trials, made these more expansive, complementary observations in his foreword to a treatise on Islamic law22:
In any broad sense, Islamic Law offers the American lawyer a study in dramatic contrasts. Even casual acquaintance and superficial knowledge -- all that most of us at bench or bar will be able to acquire -- reveal that its striking features relative to our law are not likenesses but inconsistencies, not similarities but contrarieties. In its source, its scope and its sanctions, the law [i.e., Islamic Law, Sharia] of the Middle East is the antithesis of Western Law...Islamic law, on the contrary, finds its chief source in the will of Allah as revealed to the Prophet Muhammad. It contemplates one community of the faithful, though they may be of various tribes and in widely separated locations. Religion, not nationalism or geography, is the proper cohesive force. The state itself is subordinate to the Qur'an, which leaves little room for additional legislation, none for criticism or dissent. This world is viewed as but the vestibule to another and a better one for the faithful, and the Qur'an lays down rules of behavior towards others and toward society to assure a safe transition. It is not possible to separate political or juristic theories from the teachings of the Prophet, which establish rules of conduct concerning religious, domestic, social, and political life. This results in a law of duties, rather than rights...
Joachim Wagner's modern study has led him to conclude that even the ostensibly limited application of sharia arbitration within Germany's Muslim community nullifies the state's Western conception of legal justice23.
The problem starts when the arbitrators force the justice system out of the picture, especially in the case of criminal offenses. At that point they undermine the state... Islamic conflict resolution in particular, as I've experienced it, is often achieved through violence and threats. It's often a dictate of power on the part of the stronger family.
Past as prologue to the present, application of the sharia has had obviously negative societal repercussions, for both Muslims and non-Muslims. How this undeniable truth somehow escapes the mental and moral calculus of Western sharia apologists such as Yale's Eliyahu Stern 24 is astonishing and reveals the frightening, delusively self-righteous cultural relativist mindset of the American academy. If Stern was truly desirous of protecting the unique Western freedoms many Muslim immigrants to the U.S. cherish in common with non-Muslim Americans, he would applaud the Tennessee state legislature's bill SB 102825 instead of condemning it.*
(*POSTSCRIPT: It is perhaps an ironic footnote that the language about sharia which Professor Stern fulminated against was actually pruned out of the final Tennessee bill (House Bill No. 1353) when state legislators came under intense pressure from local Muslim Brotherhood-affiliated "advocacy" groups. House Bill No. 1353 never mentions the words "sharia," "Muslim," "Islam," or "Islamic law." Sharia dictates that non-Muslims in particular have no right to criticize this divine, perfect, and immutable "law"26.)
1 Eliyahu Stern. "Don't Fear Islamic Law in America", The New York Times, September 2, 2011
2 SB 1028
3 For a mini-biography of Michael Nazir Ali, see, Sharia in the West, edited by R. Ahdar, N. Aroney, Oxford, 2010, p. xi.
4 Stern, "Don't Fear Islamic Law in America"
5 Jonathan Wynne-Jones. "Sharia: A Law Unto Itself", The Telegraph (London), August 7, 2011
6 Karl Binswanger. Untersuchungen zum Status der Nichtmuslime im Osmanischen Reich des 16. Jahrhunderts : mit einer Neudefinition des Begriffes "Dimma", München: R. Trofenik, 1977. Beiträge zur Kenntnis Südosteuropas und des Nahen Orients, 2. (Investigations on the Status of Non-Muslims in the Ottoman Empire of the 16th Century, With a New Definition of the Concept "Dhimma")
6a Ibid, pp. 327-328 (English translation by James Hodge)
6b "Islamischer Fundamentalismus in der Bundesrepublik. Entwicklung-Bestandsaufnahme-Ausblick" ["Islamic Fundamentalism in the German Federal Republic: Development, Inventory, Prospects"], pp. 38-54; "Ökonomische Basis der Fundamentalisten", pp. 81-93; "Fundamentalisten-Filz-Getrennt marschieren-vereint schlagen", pp. 129-148. All three essays were published in Im Namen Allahs. Islamische Gruppen und der Fundamentalismus in der Bundesrepublik Deutschland, Koln, 1990
6c Binswanger, "Islamic Fundamentalism in the German Federal Republic: Development, Inventory, Prospects,", p. 38. (English translation by Michael J. Miller)
6d Ibid, p. 41
6e Ibid, pp. 50ff
6f Ibid, p. 53
6g Part 1. "Islamic Justice in Europe" -- 'It's Often a Dictate of Power' ", Spiegel Online, 09/01/2011
Part 2. Maximilian Popp. "Parallel Justice -- Islamic 'Arbitrators' Shadow German Law", Spiegel Online, 09/01/2011
7 "Islamic Justice in Europe"
8 Allan Hall. "Muslim imam who lectures on non-violence in Germany is arrested for beating up his wife", The Daily Mail, December 2, 2010
9 Popp, "Parallel Justice"
10 Joseph Schacht. "Sharia", in H.A. R. Gibb, J.H. Kramers, The Shorter Encyclopaedia of Islam, 1953/2008, p. 743 ff.; G-H. Bousquet. L'éthique sexuelle de l'Islam. [The Sexual Ethic of Islam] Paris, Maisonneuve 1966/1990, pp. 10-11.
11 Popp, "Parallel Justice"
13 Hall, "Muslim imam who lectures on non-violence in Germany is arrested for beating up his wife"
14 Shakir Koranic translation of verse 4:34 at:
15 Shakir Koranic translation of verse 4:3 at:
16 Joseph Schacht. An Introduction to Islamic Law, New York, 1982, pp. 195,198,132.
17 Thomas Patrick Hughes. A Dictionary of Islam, London, 1885, p. 153.
17a N.J. Coulson. "The State and the Individual in Islamic Law", International and Comparative Law Quarterly, 1957, Vol. 6, No. 1, pp. 49-60.
17b Ibid, pp. 57-58
17c Born about 760/1358 into a scholarly Medinan family of Andalusian origin, after travels to Egypt and Syria Ibn Farhun became a jurist in Medina in 793/1390 and is claimed to have revived the Maliki (one of the four Sunni schools of Islamic jurisprudence) rite there. He died in 799/1397. His Tabsirat al-hukkam fi usul al-akdiya wa-manahid̲j̲ al-ahkam is a sort of manual for qadis containing details of procedure, rules of evidence, etc. (See, J.F.P. Hopkins. "Ibn Farhun", Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman; Th. Bianquis; C.E. Bosworth; E. van Donzel; and W.P. Heinrichs. Brill, 2011. Brill Online. Brown University. 30 September 2011 [http://www.brillonline.nl/subscriber/entry?entry=islam_SIM-3160].)
18 "Islamic Justice in Europe"
22 Robert H. Jackson. Foreword to Law in the Middle East. Edited by Majid Khadduri, Herbert J. Liebesny. Washington, D.C., 1955, pp. vi-vii.
23 "Islamic Justice in Europe"
24 Stern, "Don't Fear Islamic Law in America"
25 SB 1028 (http://wapp.capitol.tn.gov/apps/billinfo/BillSummaryArchive.aspx?BillNumber=SB1028&ga=107)
26 State of Tennessee, Public Chapter No. 497, House Bill No. 1353