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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