http://www.atimes.com/atimes/Middle_East/LE25Ak01.html
May 25, 2010
Wife-beating, sharia, and Western law
By Spengler
More than the Koran's sanction of wife-beating, the legal grounds on which the
Koran sanctions it reveals an impassable gulf between Islamic and Western law.
The sovereign grants inalienable rights to every individual in Western society,
of which protection from violence is foremost. Every individual stands in
direct relation to the state, which wields a monopoly of violence. Islam's
legal system is radically different: the father is a "governor" or
"administrator" of the family, that is, a little sovereign within his domestic
realm, with the right to employ violence to control his wife and children. That
is the self-understanding of modern Islam spelled out by Muslim-American
scholars - and it is incompatible with the Western concept of human rights.
The practice of wife-beating, which is found in Muslim communities in Western
countries, is embedded too profoundly in sharia law to be extracted. Nowhere to
my knowledge has a Muslim religious authority of standing repudiated
wife-beating as specified in Surah 4:32 of the Koran, for to do so would
undermine the foundations of Muslim society.
By extension, the power of the little sovereign of the family can include the
killing of wayward wives and female relations. Execution for domestic crimes,
often called "honor killing", is not mentioned in the Koran, but the practice
is so widespread in Muslim countries - the United Nations Population Fund
estimates an annual toll of 5,000 - that it is recognized in what we might term
Islamic common law.
Muslim courts either do not prosecute so-called honor killings, or prosecute
them more leniently than other crimes. Article 340 of Jordan's penal code
states, "He who discovers his wife or one of his female relatives committing
adultery and kills, wounds, or injures one of them, is exempted from any
penalty." Syria imposes only a two-year prison sentence for such killings.
Pakistan forbids them but rarely punishes them.
Nonetheless, some Western legal authorities, including the president of
Britain's Supreme Court, Lord Phillips, promote the use of sharia courts to
adjudicate family disputes in Western nations. Dr Rowan Williams, the
archbishop of Canterbury, drew a storm of criticism in 2008 when he proposed
that sharia courts could hear domestic cases among Muslims in the United
Kingdom.
Several months later, Lord Phillips said at a London mosque, "Those who are in
dispute are free to subject it to mediation or to agree that it shall be
resolved by a chosen arbitrator. There is no reason why principles of sharia
law or any other religious code should not be the basis for mediation or other
forms of dispute resolution."
Punishments, he added, should be "drawn from the laws of England and Wales".
Stoning, whipping and amputating hands were "out of the question". He did not
mention spanking, a telling omission, for Islamic authorities explicitly allow
husbands to inflict limited corporal punishment on their wives. A number of
putatively pro-family legal scholars in the United States argue that sharia
should be applied to American family law. That is monstrous. Not since German
jurists endorsed Adolf Hitler's race laws during the 1930s have legal theorists
in the West betrayed their principles so egregiously.
I can find no record of a recognized Muslim authority repudiating wife-beating.
Tariq Ramadan, the Swiss Muslim scholar who purports to offer a Westernized
version of Islam, notoriously defended wife-beating in a 2003 televised debate
with then-French interior minister Nicolas Sarkozy.
On the contrary, Westernized Muslim scholars strive to justify the practice on
Islamic legal grounds. Muslim traditional society is a nested hierarchy in
which the clan is an extended family, the tribe an extended clan, and the state
an extended tribe. The family patriarch thus enjoys powers in his realm
comparable to those of the state in the broader realm. That is the deeper
juridical content of the Koranic provision for wife-beating in Surah 4:34:
[Husbands] are the protectors and maintainers of their [wives] because Allah
has given the one more [strength] than the other, and because they support them
from their means. Therefore the righteous women are devoutly obedient and guard
in [the husband's] absence what Allah would have them guard. As to the women on
whose part you fear disloyalty and ill-conduct, admonish them first, refuse to
share their beds, spank them, but if they return to obedience, seek not against
them means of [annoyance]: for Allah is Most High, Great.
An essay by two Michigan State University Law students, Bassam A Abed & Syed E
Ahmad, is cited often on Islamic web sites as a credibly modern interpretation
of Surah 4:34. Abed and Ahmad begin with the legal principal that sanctions
wife-beating, namely that the husband is the "governor" or "administrator" of
the family.
The translator's use of the term "protectors" in the first line of the
aforementioned quote is in reference to the Arabic term of qawaamoon (singular:
qawaam). Qawaamoon has been defined in various manners by different scholars
and translators. Abul 'Ala Maududi, has defined qawaamoon as "governors" and as
"managers". Qawaam "stands for a person who is responsible for the right
conduct and safeguard and maintenance of the affairs of an individual or an
institution or an organisation [sic]."
The authors explain:
The majority of jurists hold that the language of the "Discipline Passage"
itself reveals a sequential approach to the discipline authorized. For them,
the conjunction wa ("and") used between the various types of discipline
signifies its chronological order. This approach guides a husband in
disciplining his wife that is disobedient, regardless of how disobedience is
defined. In following the disciplinary process, he must first admonish his
wife, then desert her in bed, and finally physically discipline her as a last
resort to marital reconciliation.
Beating is permitted, Abed and Ahmad explain, but only if it is done in a
spirit of reconciliation:
The greatest controversy and misunderstanding of the "Discipline Passage" is
in the final stage of the disciplinary process - "spanking" the disobedient
wife. The reconciliatory purpose behind the passage's "spanking" provision
helps debunk the misconceptions surrounding this disciplinary stage. A husband
is not to "spank" his wife if his motivation in doing so is other that such
reconciliation. "Spanking" out of anger, for punishment, or for retaliation is
prohibited, running contrary to the reconciliatory rationale. Similarly, a
husband cannot "spank" his wife to humiliate her, cause in her fear, or to
compel her against her will. Islam permits "spanking" to remind the wife of her
disobedience and to bring her back to obedience so as to facilitate marital
reconciliation.
Decisive in the above analysis of Surah 4:32 is the analogy between the husband
and the head of a political subdivision or organization. The state in
traditional society devolves its authority to the cells from which it is
composed, starting with the family, which is a state in miniature, whose
patriarch is a "governor" or "administrator". Traditional society is organized
like a nested set of Russian dolls: the clan is the family writ large, the
tribe is an extension of the clan, the state is an alliance of the tribes, and
the relationship of citizen and sovereign is reproduced at each level.
That is why traditional society is incompatible organically with the first
principal of law in modern liberal democracy, namely that the state wields the
monopoly of violence. Sharia in principle cannot be adapted to the laws of
modern democratic states, for it is founded on the deeply-ingrained notion that
the family is the state in miniature and that the head of family may employ
violent compulsion just as does the state.
>From the vantage point of Western family law, wife-beating is an atrocity,
>even in the case that a devout Muslim wife were to accept being beaten. Family
>courts in the West would intervene to separate a wife-beater from his family
>in the interests of the children. The president of the North American Council
>for Muslim Women, Sharifa Alkhateeb, estimated in a 1998 study that physical
>violence occurred in about 10% of Muslim marriages in the United States. "The
>rates of verbal and emotional abuse may be as high as 50% based upon
>international studies and preliminary research in the US," Alkhateeb's website
>states.
It is no surprise that the efforts of Alkhateeb and other Muslim advocates for
women's rights get little help from Muslim clergy. "Certainly, it is wise for
our religious leaders to be cautious in not passing quick, superfluous judgment
when counseling couples on domestic matters," the al-Muslimah website
complains. "However, when a Muslim sister approaches the masjid [mosque] for
help, in fear of her life and that of her children, our leaders need to
seriously consider the repercussions, and possible legal implications, of their
advice. It is never enough for sisters in abusive relationships to be told to
'be patient', 'try harder', or 'your reward is with Allah'." To direct these
women to sharia courts would be a betrayal; in many cases it would reinforce
the abuse.
A misleading, indeed offensive, comparison often is made between sharia and
Jewish religious law, or Halakha. When the archbishop of Canterbury in February
2008 proposed to admit sharia into British courts, he mentioned the supposed
precedent of Halakha three times. Observant Jewish communities in the diaspora
have submitted civil matters to rabbinical courts for 2,000 years without, of
course, having any authority other than the religious persuasion of the
litigants to pronounce judgment. It goes (or should go) without saying that
wife-beating is repulsive in the extreme to Jews. The position of Israel's
ultra-Orthodox rabbinate is that it is "strictly forbidden to beat a woman" and
that the police should be called in such cases.
There is a surface resemblance between sharia and Halakha, to be sure, but that
is by construction. Islam, wrote the great German-Jewish theologian Franz
Rosenzweig, is a parody of Judaism and Christianity, more of the former than
the latter, for on the surface the two religions appear quite close. Both
affirm the absolute unity of God. Jews pray thrice daily facing Jerusalem while
Muslims pray five times daily facing Mecca. Muslims may eat kosher food. And
both are regulated by religious law dispensed by clerical courts.
Sharia resembles Halakha, but by construction, for the same reason the Koran
resembles the Torah: it is derived from it, with self-serving adjustments
(Ishmael becomes the heir of Abraham rather than Isaac). But the principles of
the two legal systems are radically different. That is why Jewish observance of
Halakha never has clashed with the legal systems of modern democracy while
sharia inevitably must conflict, and in the most intractable and intimate way,
that is, in matters of family law.
The term "law" applied to Judaism and Islam means entirely different things to
radically different peoples. Civil law rests ultimately on the state's monopoly
of violence. In Muslim states, civil and religious law are identical, such that
sharia courts hold the sword of the state. No Jewish religious court has had
the capacity to inflict violence since the 1st century CE; the first detailed
codification of Jewish law appears in the 3rd century in the Mishnah. The
rabbis of antiquity explicitly put in abeyance ancient applications of
violence, such as the injunction to kill a rebellious son (Deuteronomy
21:18-21); the Talmud (Sanhedrin 71a) states that no Jewish court ever handed
down such a sentence. Killing of rebellious children, as noted, happens in
Muslim countries, and is sadly frequent among Muslim immigrant communities in
the West.
Jewish law, though, requires no adaptation to modern Western law, for modern
Western law ultimately derives from Jewish principles, as Harvard's Eric Nelson
most recently showed in his 2010 book The Hebrew Republic, and Michael Novak
explained in his 2002 volume On Two Wings. Jewish law proceeds from God's
Covenant with each member of the Jewish people. The notion of an intermediate
sovereign, such as Islam's "governor" of the family, is inconceivable in Jewish
law, for there is only one Sovereign, the King of Kings. The powers of the
earthly sovereign derive from God and are limited by God's laws. The American
founding notion of "inalienable rights" stems from the Hebrew concept of
covenant: a grant of rights implies a Grantor, and an irreversible grant
implies a God who limits his own sovereignty in covenant with mankind.
>From the vantage point of Islam, the idea that God might limit his own powers
>by making an eternal covenant with human beings is unthinkable, for Allah is
>absolutely transcendent, and unconditionally omnipotent. From a Hebrew, and
>later Christian standpoint, the powers of the earthly sovereign are limited by
>God's law, which irreversibly grants rights to every human being. Islam can
>make no sense of such self-limitation of the divine sovereign, and thus never
>has produced a temporal political system subject to constitutional
>limitations.
In Islam, the family father has the ability to be a petty tyrant in his own
home. That may explain the great mystery of modern Islam, namely why nearly a
billion and a half human beings have failed over eight centuries to produce
scientific or cultural figures whose names the world recognize. Even in Joseph
Stalin's Russia, individuals could find refuge in their families, and in
creative pursuits not discouraged by the state, for example pure science and
classical music. Islam can make the family itself an oppressive institution.
Spengler is channeled by David P Goldman, senior editor at First Things
(www.firstthings.com).
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