Thursday, November 18, 2010

Wednesday, November 10, 2010

[A LA Times Op-Ed]

A law we don't need

Oklahoma's amendment prohibiting courts from considering Islam's Sharia law in decisions is the product of fear-mongering.

By Michael A. Helfand

Oklahomans have a plan to save the country. It doesn't address the reverberations of the financial crisis or outline a way to pay for social services on a limited budget. Instead, they've fashioned a "preemptive strike" against Islamic law in the United States. Last week, 70% of Oklahoma's electorate approved this amendment to the state's Constitution: "The [Oklahoma] Courts … when exercising their judicial authority … shall not consider international law or Sharia Law."

Oklahoma isn't alone. Arizona is considering a bill that would prohibit state judges from "rely[ing] on any body of religious sectarian law or foreign law," and a similar bill has just been introduced in the South Carolina Legislature. Whether more states will hop on the bandwagon may depend on the outcome of a lawsuit filed in Oklahoma federal district court that contends that the amendment violates the 1st Amendment. But the amendment is not just of dubious constitutionality; it's dangerous and unnecessary on the merits.

Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: "Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous."

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In reality, such arbitration is well established. For nearly half a century, Jewish, Christian and Muslim tribunals have operated in the United States in concert with government courts. These tribunals preside over matters of religious ritual and also apply religious law to a wide range of disputes between individuals and even commercial entities. Parties, in keeping with shared beliefs and values, can voluntarily agree to submit employment, divorce, contractual and various other types of disputes for resolution. State and federal courts currently treat such religious tribunals as they do all other arbitration panels that litigants can seek out as an alternative to going to court. And, as long as the tribunal and its decisions meet certain standards, government courts routinely "confirm" them — that is, render them legally enforceable.

To some, the prospect that the "Save Our State" amendment could challenge this process would be a positive development. In fact, if we were to buy into some of the characterizations propounded by some pundits and politicians, we might think that religious arbitration could force U.S. courts to allow dismemberment or stoning as a form of punishment. But if the awards of religious tribunals are to be enforced in court, the hearings must comply with various procedural requirements, the arbitration agreements cannot be unconscionable, and the awards cannot contravene state and federal laws. Indeed, under the aptly titled "public policy exception," courts cannot enforce any arbitration award, including one issued by a religious tribunal, that undermines U.S. public policies.

For example, parties before a religious tribunal have a right to an attorney that cannot be waived. The tribunal must give notice to the parties regarding all hearings. And it must accept all relevant evidence and allow parties to cross-examine witnesses.

When it comes to the decisions themselves, just as a court cannot enforce a contract to hire a hit man, a court cannot enforce an arbitration award that requires something such as stoning or caning. Nor could a court confirm a religious tribunal's child custody decision without making its own independent determination as to what was in the best interests of the child. In the words of a New York court, "An arbitration award that deprives a party of a constitutional right to seek redress or protection in a civil or criminal matter is against public policy."

But that alone isn't a reason to maintain the tradition of religious arbitration. This form of justice sometimes provides legal redress that the state and federal courts cannot.

Consider a case in which a pastor, imam or rabbi is given a lifetime contract (a relatively common practice) that allows his or her congregation to terminate his or her employment only for cause. Somewhere down the line, the congregation decides that its religious leader is no longer doing the job. Accordingly, the congregation terminates the contract. But the pastor, imam or rabbi might very well disagree that there was cause for the dismissal. Where does he or she go to bring that claim?

The answer is not in state or federal court. The establishment clause of the 1st Amendment prohibits government courts from rendering a view regarding religious doctrine. And deciding what the appropriate responsibilities of a pastor or imam or rabbi are, and whether they have been fulfilled, would generally amount to rendering such a view. As a result, the court could only dismiss the case. However, the pastor, imam or rabbi could turn to a religious tribunal, and a U.S. court could later confirm the decision and give it legal force.

Legislation banning religious arbitration is deeply misguided. The decisions of religious tribunals are unenforceable unless they comply with public policy. And we need them to address cases that constitutional doctrine prohibits from being litigated in government courts. In the end, allowing state and federal courts to "consider" the findings of religious tribunals for the purposes of "confirmation" doesn't violate cherished religious freedoms, it enhances them.

Laws like Oklahoma's "Save Our State" amendment pander to unfounded fears. Instead of saving the nation, they merely add to its list of problems.

Michael A. Helfand is an associate professor of law at Pepperdine University and associate director of the university's Glazer Institute for Jewish Studies.

Copyright © 2010, Los Angeles Times

Wednesday, November 03, 2010

The Deeper Implications of Muslims Targeting Innocent Civilians
By Imam Zaid on 02 November 2010 (URL)

This essay, written in the immediate aftermath of the failed New York City bomb attempt [1], will examine some of the theological implications of Muslims violating civilian immunity. I have written elsewhere why attacks against innocent civilians are in opposition to fundamental teachings of Islam. Unfortunately, there are some Muslim ideologues that sanction such actions and a growing number of Muslim civilians and noncombatants are being killed by their coreligionists, in Iraq, Afghanistan [2], and elsewhere. For these reasons, the argument that follows is more than merely hypothetical. This article is being reprinted in the aftermath of an alleged plot to mail bombs to Chicago-area synagogues from Yemen.

Western military commanders, politicians and philosophers who have sanctioned the widespread bombing of civilian populations –owing to the industrialization of war and its being wedded with nationalist ideology during the 19th and 20th centuries- realize that their actions involve a dangerous moral leap. The following passage from Phillip Meilinger’s work on the moral implications of modern warfare illustrates this point:

The Fall of France in 1940 left Britain alone against Germany. The ensuing Battle of Britain, culminating in the Blitz, left England reeling. Surrender was unthinkable, but it could not retaliate with its outnumbered and overstretched army and navy. The only hope of hitting back at Germany and winning the war lay with Bomber Command. But operational factors quickly demonstrated that prewar factors [emphasizing precision bombing of military objectives] had been hopelessly unrealistic. …Aircrew survival dictated night area attacks, and, in truth, there was little alternative other than not to attack at all. Moral constraints bowed to what was deemed military necessity, which led air leaders down a particularly slippery slope. [3]

That slippery slope led to wanton massacres of civilians that were unprecedented in history and they culminated in the nuclear incineration of the Japanese cities of Hiroshima and Nagasaki. Muslims who would sanction gross violations of civilian immunity, owing to strategic desperation, are entering on a similarly slippery slope. However, there is a huge difference between the norms that govern western strategic thinking and those defined by Islam. Namely, western norms are socially constructed while those defined by Islam have their origin in revelation –the latter as understood by Muslims. Hence, from a Muslim perspective, and that perspective is critical for the argument we are making, western norms are subject to change with changes in social, political, economic and especially technological considerations, while Islamic norms are transcendent. [4]

The idea of total war, which holds that there is no distinction between the combatant and noncombatant elements of an enemy population, and that both groups can legitimately be targeted by an armed force, is ancient. The Peloponnesian War (431-404 BC), as documented by Thucydides, involved both the mobilization of entire populations for the war effort and likewise the eradication of entire populations, such as the inhabitants of Milos. During the Middle Ages, the Mongol invasion of the Muslim heartland of Asia could be described as a campaign of total warfare that left unimaginable death and destruction in its wake.

The existence of total war campaigns during early historical periods is accompanied by efforts to extend immunity from violent conflicts to civilians. Plato, various Roman philosophers, Medieval Christian theologians, orders of knights and in the early modern period, theorists such as Francisco de Victoria and Hugo Grotius all advocated various degrees of civilian immunity from the scourges of war.

In the western intellectual tradition, thinking surrounding this idea during various historical epochs was associated with prevailing views of just and unjust actions as well as the self-interest of relevant societal actors, as opposed to clear and deeply rooted scriptural pronouncements. This was true even among Christians. Hence, we do not see meaningful discussions on limiting the destructiveness of war among Christian theologians until the 4th Christian Century with the work of St. Augustine.

In Europe, changing conditions and circumstances have led to changing positions on the issue of civilian immunity. For much of the latter Middle Age the prevailing European views were dominated by ideas emerging from the Catholic Church’s Peace of God movement, and the writings of St. Thomas Aquinas. The advent of the nation-state in the aftermath of the Peace of Westphalia in 1648 would introduce a new epistemology to govern thinking around strategic affairs, even though Medieval Christian thinking still informed attitudes and policies related to civilian immunity, at least until the French and Industrial Revolutions.

These nearly simultaneous developments led to the idea that the civilian infrastructure needed to support a modern war effort was so essential to its successful prosecution that it transformed civilians into combatants. As a result, beginning with the Napoleonic Wars and the American Civil War, conflicts in the West would witness the erosion of civilian immunity –at least until the aftermath of the World War Two.

Unlike the situation prevailing in non-Muslim lands, the idea of civilian immunity among Muslims has been rooted in clear scriptural pronouncements from the prophetic epoch. Qur’anic passages establishing the sanctity of innocent life (Q. 5:32) and not expanding hostilities to noncombatants (Q. 2:190) coupled with prophetic strictures against killing women, children, monks, and other noncombatants created the basis for a strong and enduring Muslim ethic governing civilian immunity. Although there have clearly been instances when some Muslim rulers and commanders have not respected that ethic, it has generally remained a restraining factor throughout Muslim history. [5]

Among its greatest fruits has been the existence of large non-Muslim populations in historical Muslim empires, the general lack of forced conversion of non-Muslim populations, a lack of genocidal massacres undertaken by Muslim armies [6], and the peaceful coexistence of Muslims and other faith communities in areas such as Andalusia, Bosnia, Palestine and Iraq, historically.

As changing geopolitical and technological realities dictate changes in the norms governing the intentional targeting of civilians in western strategic thinking, there is no inherent damage to the integrity of western secular thought. Indeed, the socially constructed nature of those norms only serves to reinforce the secularity of the process whereby they are arrived at and the analytical methods governing their assessment. This is not the case for the transcendental Islamic ideal governing civilian immunity. When it is abandoned by Muslims, a critical aspect of the religion itself in abandoned.

As Dr. Tim Winter (Abdul Hakim Murad) [7], expanding the work of John Gray [8] and others, argues, when that abandonment occurs in the modern context, it is precisely because the transcendental Islamic ideal has been forsaken or lost. Muslims who target civilians are robbed of any moral high ground in their struggle with opposing forces and are left naked before the bitter winds of political expediency. If expediency demands suicidal murder, bombs in mosques and marketplaces or in the heart of western cities then in the view of those who have entered upon this vile path, so be it.

At the heart of the Islamic ethic regarding the sanctity of innocent life is the following verse in the Qur’an, alluded to earlier:

Owing to that [first instance murder] we ordained for the Children of Israel that whosever takes an innocent life for other than retribution for murder or murderous sedition in the land it is as if he has killed all of humanity, and whoever saves a life it is as if he has saved all of humanity. Our Messengers have come to them with clear proofs, yet even after that many of them exceed limits in the land.[9] (Q. 5:32)
من أجل ذلك كتبنا على بني إسرائيل أنه من قتل نفسا بغير نفس أو فساد في الأرض فكأنما قتل الناس جميعا و من أحياها فكأنما أحيا الناس جميعا و لقد جاءتهم رسلنا بالبينات ثم إن كثيرا منهم بعد ذلك في الأرض لمسرفون

This verse emphasizes that the immunity extended to innocents is a principle that was upheld by all of the Prophets. Hence, the specific mention of the Children of Israel, who were the recipients of a long line of Prophets, and the mentioning of the Messengers at the end of the verse.

The idea that to discard the immunity that is extended to innocents is to abandon an indispensible part of the divine law is emphasized by Imam al-Qurtubi in his commentary on this verse (Q. 5:32). He states:

The meaning is that whoever makes it lawful to take the life of a single innocent person has made everyone’s life lawful, because he has rejected the divine law [establishing the prohibition of killing innocents] [10].
المعنى أن من استحل واحدا فقد استحل الجميع لأنه أنكر الشرع

Abandoning the divine law when one makes the blood of innocent people lawful to shed is emphasized from a deeper perspective by Imam Fakruddin al-Razi in his commentary on the same verse. He states:

When he [a murderer] resolves to intentionally kill an innocent person he has given preference to the dictates of his bloodlust and anger over the dictates of obeying God. When this prioritization occurs, in his heart he has resolved to kill anyone who opposes his demands, were he capable of doing so. [11]
أنه لما أقدم على القتل العمد العدوان فقد رجح داعية الشهوة و الغضب على داعية الطاعة و متى كان الأمر كذلك كان هذاالترجيح حاصلا بالنسبة إلى كل واحد فكان في قلبه أن كل أحد نازعه من مطالبه فإنه لو قدر عليه لقتله

The murderous campaigns undertaken by some misguided Muslims that have led to the massacre of thousands of civilians in the Muslim world and that are now threatening the innocent people in this country are not manifestations of Jihad, as some claim. Rather, they are a mirror image of the godless murderous mayhem and carnage this country has inflicted on the innocent civilians of many Muslim countries, and, as explained above, it involves an abandonment of the prophetic legacy.

Every Muslim who is concerned for the future of his or her faith and the future of the prophetic legacy in the world is morally obliged to work in whatever capacity he or she can to stop attacks that target innocent civilians by any party –Muslims or members of other communities. The basis for this moral obligation is powerfully stated by Imam Razi in his commentary on (5:32). He mentions:

If all of humanity knew that a single individual intends to exterminate them they would undoubtedly try their utmost to prevent him from obtaining his objective. Likewise, if they knew that he intends to kill a single person then their seriousness and exertion in trying to deter him from killing that person should be just as great as it would be in preventing their own mass murder. [12]
هو أن جميع الناس لو علموا من إنسان واحد أنه يقصد قتلهم بأجمعهم فلا شك أنهم يدفعونه دفعا لا يمكنه تحصيل مقصوده فكذلك إذا علموا منه أنه يقصد قتل إنسان واحد معين يجب أن يكون جدهم واجتهادهم في منعه عن قتل ذلك الإنسان مثل جدهم واجتهادهم في الصورة الأولى


The reason for this is that the life of a single innocent person has the sanctity of the lives of all humanity. This is an ideal we cannot let die. If we allow it to die who will revive it? Human history has shown how quickly we can begin a free fall into murderous madness once we have entered upon the path that justifies murdering innocent civilians and other noncombatants. If the American military and the warmongering interests supporting it are guilty in this regard we condemn them in the strongest terms, and if our fellow Muslims are guilty we must likewise condemn them.

The only difference between the two cases is that when the American military kills innocent civilians it is violating principles of human rights and worldly conventions, which, as we have seen with the current arguments justifying torture, are subject to change or being discarded altogether. When Muslims do it, we are betraying our faith and the legacy of the Prophets, peace upon them, who have left us a wealth of timeless, enduring wisdom.

Notes:
[1] I am not assuming that Faisal Shahzad, the Pakistani-American who has been arrested in association with this bomb plot is guilty. The investigation is ongoing and his guilt has yet to be established. The affair does provide an occasion to discuss the issues that are raised in this essay.
[2] This statement does not discount the existence of black or psychological operations that are undertaken against Muslim civilians by the security apparatuses of Western powers at war in the Muslim world, along with their agents and surrogates. However, it is undeniably true that an increasingly large number of the attacks against Muslim noncombatants are being undertaken by Muslims themselves.
[3] Quoted in Ward Thomas, The Ethics of Destruction: Norms and Force in International Relations (Ithaca, London: Cornell University Press, 2001), 90.
[4] The transcendental nature of Muslim norms does not deny the human effort that went into translating those norms into policy. Hence, like their medieval Christian scholastic counterparts, Muslim theologians struggled to define the scope and limits of civilian immunity.
[5] For an insightful study of the generally peaceful nature of Islam’s spread among non-Muslim peoples, and its respect for them see Professor Thomas Arnold, The Spread of Islam in the World: A History of Peaceful Preaching (New Delhi: Goodword Books, 2001).
[6] The most notable exception to this assertion is the Armenian Genocide that occurred in Ottoman Turkey in 1915. This controversial tragedy occurred during the waning years of a Muslim world governed by a viable Islamic tradition, and after Turkey had been transformed into a nationalist, quasi Islamic state led by the Young Turks. By that time, the Sultan was a powerless figurehead. For most of the Ottoman reign Armenians were a self-governing minority that enjoyed the protection of the rulers in Istanbul.
[7] See Abdal-Hakim Murad, Bombing Without Moonlight: The Origins of Suicidal Terrorism (Bristol, England: Amal Press, 2008). Murad convincingly demonstrates how Muslims who engage in wanton attacks against civilians are merely extensions of a deeply-rooted history of such violence in western civilization. Likewise, he shows how Muslims who would justify such violence openly reject the Islamic tradition of patience and restraint in strategic affairs.
[8] See John Gray, Al Qaeda and What It Means To Be Modern (New York: The New Press, 2005). Gray argues that the philosophy of al Qaeda owes more to the positivism of Saint-Simon and Comte than to any traditional Islamic influences, and its organizational structure is a reflection of 21st Century globalization.
[9] Their exceeding limits lies in the continuation of their murderous ways.
[10] Muhammad b. Ahmad al-Qurtubi, al-jami’ li ahkam al-Qur’an (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1995), 3:147
[11] Muhammad b. ‘Umar Fakhruddin al-Razi, mafatih al-ghayb (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1995), 4:344
[12] Ibid., 4:344
Lauren, sister-in-law of former UK Prime Minister Tony Blair, writes about the response to her recent conversion to Islam in this Guardian piece.

It is five years since my first visit to Palestine. And when I arrived in the region, to work alongside charities in Gaza and the West Bank, I took with me the swagger of condescension that all white middle-class women (secretly or outwardly) hold towards poor Muslim women, women I presumed would be little more than black-robed blobs, silent in my peripheral vision. As a western woman with all my freedoms, I expected to deal professionally with men alone. After all, that's what the Muslim world is all about, right?

This week's screams of faux horror from fellow columnists on hearing of my conversion to Islam prove that this remains the stereotypical view regarding half a billion women currently practising Islam.

On my first trip to Ramallah, and many subsequent visits to Palestine, Egypt, Jordan and Lebanon, I did indeed deal with men in power. And, dear reader, one or two of them even had those scary beards we see on news bulletins from far-flung places we've bombed to smithereens. Surprisingly (for me) I also began to deal with a lot of women of all ages, in all manner of head coverings, who also held positions of power. Believe it or not, Muslim women can be educated, work the same deadly hours we do, and even boss their husbands about in front of his friends until he leaves the room in a huff to go and finish making the dinner.

Is this patronising enough for you? I do hope so, because my conversion to Islam has been an excuse for sarcastic commentators to heap such patronising points of view on to Muslim women everywhere. So much so, that on my way to a meeting on the subject of Islamophobia in the media this week, I seriously considered buying myself a hook and posing as Abu Hamza. After all, judging by the reaction of many women columnists, I am now to women's rights what the hooked one is to knife and fork sales.

So let's all just take a deep breath and I'll give you a glimpse into the other world of Islam in the 21st century. Of course, we cannot discount the appalling way women are mistreated by men in many cities and cultures, both with and without an Islamic population. Women who are being abused by male relatives are being abused by men, not God. Much of the practices and laws in "Islamic" countries have deviated from (or are totally unrelated) to the origins of Islam. Instead practices are based on cultural or traditional (and yes, male-orientated) customs that have been injected into these societies. For example, in Saudi Arabia, women are not allowed to drive by law. This rule is an invention of the Saudi monarchy, our government's close ally in the arms and oil trade. The fight for women's rights must sadly adjust to our own government's needs.

My own path to Islam began with an awakening to the gap between what had been drip-fed to me about all Muslim life – and the reality.

I began to wonder about the calmness exuded by so many of the "sisters" and "brothers". Not all; these are human beings we're talking about. But many. And on my visit to Iran this September, the washing, kneeling, chanting recitations of the prayers at the mosques I visited reminded me of the west's view of an entirely different religion; one that is known for eschewing violence and embracing peace and love through quiet meditation. A religion trendy with movie stars such as Richard Gere, and one that would have been much easier to admit to following in public – Buddhism. Indeed, the bending, kneeling and submission of Muslim prayers resound with words of peace and contentment. Each one begins, "Bismillahir rahmaneer Raheem" – "In the name of God, the Merciful, the Compassionate" – and ends with the phrase "Assalamu Alaykhum wa rahmatullahi wa barakatuh" – Peace be upon you all and God's mercy and blessing.

Almost unnoticed to me, when praying for the last year or so, I had been saying "Dear Allah" instead of "Dear God". They both mean the same thing, of course, but for the convert to Islam the very alien nature of the language of the holy prayers and the holy book can be a stumbling block. I had skipped that hurdle without noticing. Then came the pull: a sort of emotional ebb and flow that responds to the company of other Muslims with a heightened feeling of openness and warmth. Well, that's how it was for me, anyway.

How hard and callous non-Muslim friends and colleagues began to seem. Why can't we cry in public, hug one another more, say "I love you" to a new friend, without facing suspicion or ridicule? I would watch emotions being shared in households along with trays of honeyed sweets and wondered, if Allah's law is simply based on fear why did the friends I loved and respected not turn their backs on their practices and start to drink, to have real "fun" as we in the west do? And we do, don't we? Don't we?

Finally, I felt what Muslims feel when they are in true prayer: a bolt of sweet harmony, a shudder of joy in which I was grateful for everything I have (my children) and secure in the certainty that I need nothing more (along with prayer) to be utterly content. I prayed in the Mesumeh shrine in Iran after ritually cleansing my forearms, face, head and feet with water. And nothing could be the same again. It was as simple as that.

The sheikh who finally converted me at a mosque in London a few weeks ago told me: "Don't hurry, Lauren. Just take it easy. Allah is waiting for you. Ignore those who tell you: you must do this, wear that, have your hair like this. Follow your instincts, follow the Holy Qur'an- and let Allah guide you."

And so I now live in a reality that is not unlike that of Jim Carey's character in the Truman Show. I have glimpsed the great lie that is the facade of our modern lives; that materialism, consumerism, sex and drugs will give us lasting happiness. But I have also peeked behind the screens and seen an enchanting, enriched existence of love, peace and hope. In the meantime, I carry on with daily life, cooking dinners, making TV programmes about Palestine and yes, praying for around half an hour a day.

Now, my morning starts with dawn prayers at around 6am, I pray again at 1.30pm, then finally at 10.30pm. My steady progress with the Qur'an has been mocked in some quarters (for the record, I'm now around 200 pages in). I've been seeking advice from Ayatollahs, imams and sheikhs, and every one has said that each individual's journey to Islam is their own. Some do commit the entire text to memory before conversion; for me reading the holy book will be done slowly and at my own pace.

In the past my attempts to give up alcohol have come to nothing; since my conversion I can't even imagine drinking again. I have no doubt that this is for life: there is so much in Islam to learn and enjoy and admire; I'm overcome with the wonder of it. In the last few days I've heard from other women converts, and they have told me that this is just the start, that they are still loving it 10 or 20 years on.

On a final note I'd like to offer a quick translation between Muslim culture and media culture that may help take the sting of shock out of my change of life for some of you.

When Muslims on the BBC News are shown shouting "Allahu Akhbar!" at some clear, Middle Eastern sky, we westerners have been trained to hear: "We hate you all in your British sitting rooms, and are on our way to blow ourselves up in Lidl when you are buying your weekly groceries."

In fact, what we Muslims are saying is "God is Great!", and we're taking comfort in our grief after non-Muslim nations have attacked our villages. Normally, this phrase proclaims our wish to live in peace with our neighbours, our God, our fellow humans, both Muslim and non-Muslim. Or, failing that, in the current climate, just to be left to live in peace would be nice.