I have written this piece, at this time, in the hope that I can contribute to removing the mystery, and therefore fear, associated with Sharia. It is intended to be my answer to the Islamophobic dog whistle of “they’re trying to bring Sharia over here”.
I am no Islamic jurist. So, apologies to everyone out there who knows this stuff much better than I do. My relevant background is that I (briefly) studied Sharia at University. I then worked (briefly) as a lawyer in the field of Islamic finance. What follows are therefore the fumblings of an amateur. Yet, I hope that this perspective of an outsider is still a useful contribution.
Sharia is a legal system which seeks to extend the religious principles of Islam into a legal structure applicable to daily life. You could think of it as the Islamic counterpart to Judaism’s Halakha or Catholicism’s Canon Law. However, there are differences between them.
Catholicism has a well-defined hierarchy, and senior office holders have the power to make law. Sharia doesn’t work that way. I’ve also heard it said that Sharia and Halakha seek to extend into every part of a devotee’s life in a way that Canon does not. There are also significant differences between Sharia and Halakha, but that seems to be a particularly controversial topic and I do not address it here.
Sharia law is mostly derived by analogy from the two foundation texts: the Quran (God’s revelations to Muhammad) and the Sunnah (a record of Muhammad’s life).
Like common law judges, there are people in the Islamic world who are respected as being able to apply this reasoning and make decisions on new issues as they arise. And, like the common law, there is scope for different people to reach different conclusions. The decisions such people reach can have authoritative weight outside of the issues before them – more so if a consensus has arisen between multiple such decisions from different jurists.
As an aside, I believe I saw some Sharia law reasoning in action when I heard Yasser Arafat speak in Oxford in 1996. A student challenged Arafat on Palestinians forcing women to wear head scarves. Arafat replied by telling a story of Muhammad visiting a friend and remarking that his friend’s wife had beautiful hair. The student was angry, saying that Arafat hadn’t answered her question.
I believe Arafat was expressing his view in accordance with the principles of Sharia law. Arafat described the Prophet seeing a woman’s uncovered hair and clearly not being offended. Arafat left his audience with the obvious inference and therefore his view on how he would interpret the relevant Sharia.
There are acts of violence described in the foundation texts which are antithetical to modern civilised society – just like there are in the Bible. But, also just like the Bible, there are many passages extolling virtues like love and kindness, and urging people to look after their neighbours and those less fortunate than them.
The obviously outmoded nature of all historic religious texts is one of many reasons why I am an atheist. However, it is obviously untrue to suggest that people can only follow a religion by strictly adhering to every anachronistic aspect of it.
Modern Muslims living in accordance with Sharia derive workable rules for living in the modern world from fundamental principles taken from the foundation texts. Modern Muslims do not think Sharia requires them to pretend it is still the 7th Century in the same way that modern Christians do not kill all people who work on Sundays (Exodus 35:2).
There are Islamic states that have, for example, criminal justice systems that do not conform to New Zealand’s standards of fairness or proportionality. They implement those systems in the name of Sharia. Yet, there are other people who consider themselves devout Muslims and who argue that that is a misapplication of Sharia. Indeed, there are also many non-Islamic states with criminal justice systems that fall well below our standards.
In Islamic finance, I dealt, in particular, with two fundamental principles: the prohibition of usury; and the prohibition of gambling.
That is usury in its original meaning – charging interest. You know, the thing that annoyed Jesus so much he drove everyone out of a Temple with whips. Despite Jesus’ low opinion of money lenders, usury in the Christian world went from prohibiting any interest, to prohibiting too much interest, to payday lenders advertising on television.
Equally, the problems with gambling are well known in our society. At one end, it persuades some of our least well paid to put everything they earn into pokies. At the other, it crashed the world economy in 2007.
Islamic finance finds ways to allow financing that depend on neither interest nor speculation. It is a difficult, but not impossible, task. The financing structures that are created are, at the least, useful alternatives to mainstream finance. For example, contracts have been devised which enable someone to buy a house without unaffordable mortgage payments by instead sharing the house value growth.
Should we fear the arrival of Sharia? Actually, it is already here and has been for a very long time. It will have arrived with the first Muslims to settle here in the middle of the 19thCentury. It is still here with those who chose to arrange their affairs in accordance with it. Just like there are people in New Zeland who follow Halakha or Canon.
What about Sharia becoming part of the mainstream law of New Zealand? Again, arguably it already is to at least a limited extent. In recognising the applicability of principles of tikanga, our courts have noted that the common law method has always taken account of the common traditions of subcultures within society. I am not aware of a case that has done this, but, notwithstanding the relative importance of tikanga to New Zealand, I would expect that weight would also be given to Sharia in a case that appropriately raised it.
While there is plenty of room to improve, I would also argue that our general laws, public institutions, and major private institutions, have been steadily moving away from an assumption that we are all Pakeha Christians. Gradually our laws have been shifting to ones that seek to genuinely accommodate people of all cultural backgrounds, including Islam.
No doubt there are people who think that (their interpretation of) Sharia should be universally imposed, just as there will be people who think that way about Halakha and Canon and many other ideologies. Heck, I think the laws should be reformed to better fit with my ideas of what is fair and right. But Muslims are no different to the rest of us. The vast majority either just want to be left alone or are happy to argue for the social changes they believe in through our political process.
In 2008, the then Archbishop of Canterbury gave a speech about how this inclusion of parts of Sharia in our mainstream legal structures was a good thing. This was for two reasons. First, Muslims in our society would be grateful of the availability of Sharia compliant alternatives that allow them to both follow their faith and fully participate in society.
And secondly, the rest of us might find that some of those Sharia compliant alternatives are good alternatives for us regardless of our faith (bring on more availability of interest free home loans!).
It is a cheap (but frighteningly ubiquitous) trick for people to compare the best of their preferred system with the worst of someone else’s. The truth, of course, is that the world is diverse. Islam is no more inherently bad than Christianity.
I am not advocating for New Zealand to become an Islamic state, far from it. New Zealand must remain a free and democratic country. But an essential component of that is pluralism. We need not fear people expressing views merely because those views are drawn from Sharia. Indeed, there are fundamental principles of Sharia to which we would all relate.