Tuesday, September 25, 2018

Marshall Breger: Why Jews Can’t Criticize Sharia Law

Marshall Breger: Why Jews Can’t Criticize Sharia Law

May 8, 2012 in Opinion
9 Comments

Similarities between Judaism and Islam are easy to see. Both are monotheistic religions for whom the Lord is One. Both are religions based on revelation. In both, law is central, and personal and social existence is governed by a divinely ordained legal system.

There are also many obvious parallels between Judaism’s legal system, known as halacha, and the Islamic legal order of sharia. Both purport to instruct us in how to attend to every aspect of one’s life: one’s getting up and one’s going out, one’s sexual practice and one’s business practices. For some adherents of each, religious law also dictates political life, such as for whom to vote.
Despite this kinship, there are those in the Jewish community who would condemn Islam and sharia, arguing that, unlike Judaism, Islam is not worthy of the protections of American law.

David Yerushalmi, author of a model law banning sharia, argues that sharia differs from halacha because of its different “threat matrix.” Sharia, he tells us, requires faithful Muslims to impose Islamic law on the world “violently,” and its adherents should be charged with sedition against the United States. Rabbi Jon Hausman, a self-styled “warrior rabbi” from Massachusetts, tells us that in Judaism, unlike Islam, the law of the state is the law (in Aramaic, dina d’malchuta dina) so you don’t have to worry about such religious “imperialism.”

These commentators’ understanding of both sharia and halacha is markedly defective.

1. As Hausman surely knows, the reach of dina d’malchuta dina is debated among rabbinic commentators. Some limit the application of the Jewish legal system to property issues, others extend it to apply to all secular law that does not violate Jewish law. In any case, Hausman’s suggestion that halacha is a personal legal system—not relevant to civic life and politics—neglects both Jewish history and halacha itself. In Baghdad during the Middle Ages and in Poland during the time of the Council of the Four Lands, from the 16th to the 18th centuries, for instance, Jewish communities had their own courts, and Jewish law was enforced by secular authorities. And even today, thousands of Jews in both the United States and Israel look to rabbinic courts and halacha to resolve all manner of civil disputes.

While clearly some Muslims do view sharia as a hegemonic political force, the vast majority of Muslims, especially those living in the West, view sharia no differently from the way Jews view the halachic system: as an overarching guide to ordering one’s life. Muslim jurists have always drawn on sharia to mandate that fellow Muslims obey the laws of the land in matters that sharia does not prohibit. In numerous instances (see Koran 5:11), Muslims are told to “honor their contracts” and so to honor the “social contract” represented by the law of the land. The Fiqh Council of North America, the leading interpreter of Islamic law in the United States, ruled as recently as September 2011 that “there is no inherent conflict between the normative values of Islam and the U.S. Constitution and the Bill of Rights.”

2. Daniel Pipes recounts in a 2009 article an incident in England when the Indian Muslim owner of an old age home near Manchester proposed to switch to serving only halal food in the facility. After residents complained, the owner retracted the policy. To Pipes, the owner’s desire to remove pork from the menu, even though apparently not implemented, is proof that Islam wishes to impose itself on all around it. But is this drive for “imperium” the only explanation?

Indeed, Jewish law would have great sympathy for the position taken by the Indian entrepreneur. Though there are gray areas, Jewish law generally holds that one cannot benefit (or profit) from the sale of mixed milk and meat products. The legal compendium the Shulhan Aruch forbids Jews from selling non-kosher products on a regular basis (Yoreh De’ah 117.1). And anyone who has read Daphne Barak-Erez’s 2007 monograph Outlawed Pigs: Law, Religion, and Culture in Israel will appreciate the difficulties of commerce in pork products (or “white meat” as it is politely called) in Israel.

3. Critics of Islam make much of the Shiite legal doctrine of taqquia and the related concept of kitman, which allow one to dissemble or evade by misdirection in order to save a life or community from imminent destruction (see Koran 16:106). For these critics, the takeaway is that Muslims lie when it is in their interest, so we cannot trust their promises or make treaties with them.
But numerous Koranic references tell the believer to “mix not the truth with falsehood nor conceal the truth when you know what it is” (2:42). And further, “Conceal not [the truth]; for whomever conceals it is burdened with sin” (2:283).

Again, we must look to Jewish law analogues. Even the Chofetz Chaim, the rabbinic scholar most associated with truth-telling, allows “white lies” when they will produce social and interpersonal peace. (No threat of imminent destruction is required.) Maimonides allows one to lie about one’s religion to save one’s own life. And does anyone remember the Marranos?

My point is not to analyze the nuances of halacha, let alone sharia, but rather to underscore the inconsistency of attacking Islam for activities that Jewish law and practice would also permit, or even require.

These broadside attacks on sharia are reminiscent of Jewish polemical literature after the rise of Islam in the seventh and eighth centuries designed to show Judaism as superior. Later scholars such as the Meiri, though, moved on from polemics to classify Islam as a monotheistic religion close to Judaism. While there are certainly fundamentalist interpretations of Islam that we rightfully find dangerous and deplorable, it is time that Jews in America go beyond “gotcha” polemics and stop treating sharia and Islam as illegitimate expressions of man’s search for the divine.

Marshall Breger is a professor of law at Catholic University.

9 Comments
  • hal Figliulo 04:23h, 20 May Reply

    This is because much of Islam is taken from Jewish Text such as the Torah. Islam considers the TORAT(their word) a holy book. Mohamed ‘borrowed’ from Halakha to create Sharia. He did the same for halal and kosher which are subsets of the first 2. The burdens of proof are different. Homosexuality is forbidden completely in Sharia. It is acceptable in Halackha. They act is forbidden and punishable by death if 3 things exist. In Judaism they must be caught in the act by at least 2 people. We need to rebuild the TEMPLE which Jews do not have. They also must be convicted by the SANHEDRIN or Judges for lack of a better word. Islam does force conversion. Jews Do not. Homosexuals in Judaism can in fact be a part of most ceremonies. It is the act that is forbidden.

    • Buddy 08:43h, 21 November Reply

      THE JEWISH RABBI WHO CREATED ISLAM

      JEWISHENCYCLOPEDIA
      The unedited full-text of the 1906 Jewish Encyclopedia
      SCHWARZ, JOSEPH:
      Palestinian geographer; born at Flosz, Bavaria, Oct. 22, 1804; died at Jerusalem Feb. 5, 1865. When he was seventeen years old he graduated as teacher from the Königliches Schullehrerseminar of Colberg, after which he joined his brother Israel at the University of Würzburg, where for five years he devoted himself to the history and geography of the Holy Land, and published a map of Palestine (1829; republished at Vienna, 1831, and Triest, 1832). It was his ardent desire, however, to study in Palestine itself the physical history and geography of the Holy Land, where his knowledge of Talmudic sources and early Jewish writers would be of more service. Accordingly he decided to settle in Jerusalem, whither he went in 1833. Schwarz then began a series of journeys and explorations in various parts of Palestine, to which he devoted about fifteen years.

      The results of his investigations and researches into the history, geography, geology, fauna, and flora of that country have placed him in the front rank of Palestinian explorers and geographers. HE IS THE GREATEST JEWISH AUTHORITY ON PALESTINIAN MATTERS SINCE ESTORI FARHI (1282-1357), the author of “Kaftor wa-Feraḥ.”

      (Be sure to Google this article:
      HISTORY OF PALESTINE
      614-1096 C.E.
      From the Accession of the Mahomedans to that of the Europeans.
      By Rabbi Joseph Schwarz, 1850

      Rabbi Shallum, son of the then Resh Gelutha, in Babel, aka Abu Bachr al Chaliva al Zadik. Abu Bakr, became the first Caliph, and was in fact son of the then Resh Gelutha, in Babel, who perceiving a dreadful predicament, sent Rabbi Shallum to Mahomed, and told him to offer his submission, friendship, and services, and endeavour to enter with him into a friendly compact. Mahomed accepted Rabbi Shallum’s proposition with pleasure, conceived a great affection for him, and took his daughter, Aisha, a handsome young child, for wife; he made him also a general in his army, and gave him the name of Abu Bachr al Chaliva al Zadik, literally:

      The father of the maiden, the descendant of the righteous; this means, that of all his wives, who were either widows or divorced women, this one was the only one who had never been married before, and then she was the granddaughter of the celebrated chief of the captivity; therefore, the descendant of the righteous. This occurrence induced Mahomed to give up his terrible intention to destroy the Jews in his country, and thus did Rabbi Shallum save his people.

  • Anton Zylnya 06:19h, 11 May Reply

    The similarities between Judaism and Islam are due to the fact that Mohammad stole the ‘revelations’ from the Jews as well as from Christianity and the pagan arabs. The writer quotes Koranic verses from chapter 2, suras 2:42 and 2:283; the principle of ABROGATION renders these suras void or at least of lesser authority than the later MEDINAN verses of which sura 9 was the last written. The verse of the Sword 9:5 being the justification for violent jihad.

  • Ellen Haupt 09:57h, 18 October Reply

    Jews don’t have any more of a “gotcha” attitude than anyone else threatened by sharia law. Besides, there are more important issues to consider re:sharia law than a a petty I “gotcha” attitude which trivializes its serious threat and reduces the issue to name calling, which incidentally, he attributes to Jews. More accurately, this is a reflection of the author’s attempt to say “gotcha” about Jews, and his concern over a Jewish “gotcha” attitude towards sharia law is a product of his own imagination.

  • Rabbi Akiva 02:14h, 04 July Reply

    Actually there is a big difference between halacha and sharia. The difference is that in halacha even though there is capital punishment it was carried out very rarely. The person had to be warned before commiting the sin that it was punishable by death and there had to be witnesses and a court case with 23 judges. It was very complicated and if any of these requirements were lacking the person wouldn’t get the death penalty. The Talmud says that the Sanhedrin(Jewish high court) only gave a death penalty once in 70 years. Also the laws weren’t as strict for non-jews. In sharia law they are killing people all the time in addition to other barbaric punishments i.e. chopping off hands of a theif. Also they don’t have a good justice system that gives fair trials. Lastly,they condone violence against non-muslims.

    • Buddy 08:47h, 21 November Reply

      GENTILES IN HALACHA
      Foreword — Daat Emet
      For a long time we have been considering the necessity of informing our readers about Halacha’s real attitude towards non-Jews. Many untrue things are publicized on this issue and the facts should be made clear. But recently, we were presented with a diligently written article on the subject, authored by a scholar from the Merkaz HaRav yeshiva — so our job was done by others (though we have already discussed some aspects of this issue in the weekly portions of Balak and Matot). Since there is almost no disagreement between us and the author of the article on this issue, we have chosen to bring the article “Jews Are Called ‘Men'” by R’ David Bar-Chayim (in Hebrew) so that the reader will be able to study and understand the attitude of the Halacha towards non-Jews.

      In this article R’ Bar-Chayim discusses the attitude towards “Gentiles” in the Torah and in the Halacha and comes to an unambiguous conclusion:

      “The Torah of Israel makes a clear distinction between a Jew, who is defined as ‘man,’ and a Gentile.”
      That is to say, any notion of equality between human beings is irrelevant to the Halacha. R’ Bar-Chayim’s work is comprehensive, written with intellectual honesty, and deals with almost all the aspects of Halachic treatment of non-Jews. It also refutes the statements of those rabbis who speak out of wishful thinking and, influenced by concepts of modern society, claim that Judaism does not discriminate against people on religious grounds. R’ Bar-Chayim shows that all these people base their constructs NOT on the Torah but solely on the inclinations of their own hearts. He also shows that there are even rabbis who intentionally distort the Halachic attitude to Gentiles, misleading both themselves and the general public.

      For the English readers’ convenience we will briefly mention the topics dealt with in R’ Bar-Chayim’s article:

      Laws in regard to murder, which clearly state that there is Halachic difference between murder of a Jew and of a Gentile (the latter is considered a far less severe crime).
      A ban on desecrating the Sabbath to save the life of a Gentile.
      A Jew’s exemption from liability if his property (e. g. ox) causes damage to a Gentile’s property. But if a Gentile’s property causes damage to a Jew’s property, the Gentile is liable.
      The question of whether robbery of a Gentile is forbidden by the Torah’s law or only by a Rabbinic decree.
      A ban on returning a lost item to a Gentile if the reason for returning it is one’s sympathy towards the Gentile and compassion for him.
      The sum which a Gentile overpays in a business transaction due to his own error is forfeit; whether a Jew is permitted to intentionally deceive a Gentile is also discussed.
      One who kidnaps a Jew is liable to death, but one who kidnaps a Gentile is exempt.
      A Jew who hurts or injures a Gentile is not liable for compensation of damage, but a Gentile who hurts a Jew is liable to death.
      One who overcharges a Gentile ought not return him the sum that the Gentile overpaid.
      A Gentile — or even a convert to Judaism — may not be appointed king or public official of any sort (e. g. a cabinet minister).
      One who defames a female proselyte (claiming that she was not virgin at the time of her marriage) is liable to neither lashes nor fine.
      The prohibition to hate applies only to Jews; one may hate a Gentile.
      One may take revenge against or bear a grudge towards Gentiles; likewise, the commandment “love your neighbour” applies only to Jews, not to Gentiles.
      One who sees Gentile graveyards should curse: “Your mother shall be greatly ashamed…”
      Gentiles are likened to animals.
      If an ox damaged a Gentile maidservant, it should be considered as though the ox damaged a she-ass.
      The dead body of a Gentile does not bear ritual impurity, nor does a Gentile who touches the dead body of a Jew become impure — he is considered like an animal who touched a dead body.
      One is forbidden to pour anointing oil on a Jew, but there is no ban on pouring that oil on a Gentile because Gentiles are likened to animals.
      An animal slaughtered by a Gentile is forbidden, even if the ritual slaughter performed was technically correct, because Gentiles are deemed like animals. (Daat Emet does not agree that this is the Halachic reason for invalidating a Gentile’s ritual slaughter — but this is not the place to delve into the subject).
      Their members (genitals) are like those of asses” — Gentiles are likened to animals.

      Between the Jews and the Gentiles — In the Aggadah, the Kabbalah, and in Jewish Thought R’ Bar-Chayim’s arguments and conclusions are clear, Halachically accurate, and supported by almost all the existent major Halachic works. It would be superfluous to say that R’ Bar-Chayim fully embraces this racist Halachic outlook as the word of the Living G-d, as he himself pointed out in the “Conclusion” of his article:
      “It is clear to every Jew who accepts the Torah as G-d’s word from Sinai, obligatory and valid for all generations, that it is impossible to introduce ‘compromises’ or ‘renovations’ into it.”

      On the other hand, we want to make it clear that Daat Emet — as well as any reasonable people who do not embrace Halachic laws as the word of the Living G-d — are repulsed by such evil, racist discrimination.
      In the Hebrew text we have abridged the second part of R’ Bar-Chayim’s article,

      “Between Jews and Gentiles — In the Aggadah, the Kabbalah, and in Jewish Thought,” because, in our view, the Halacha is the law which obligates every religious Jew while concepts of the Aggadah, the Kabbalah, and Jewish thought are not binding on anyone, as our rabbis have already written:

      “And so the Aggadic constructs of the disciples of disciples, such as Rav Tanchuma and Rabbi Oshaya and their like — most are incorrect, and therefore we do not rely on the words of Aggadah” (Sefer HaEshkol, Laws of a Torah Scroll, p. 60a); we have expanded on this issue in the portion of Vayeshev.

      • Phil 02:36h, 20 May Reply

        How then do you reconcile this:

        “When a stranger resides with you in your land, you shall not do him wrong. The stranger who resides with you shall be to you as the native among you, and you shall love him as yourself, for you were aliens in the land of Egypt; I am the Lord your God” (Lev. 19:33–34).

  • Joeseph Smith 16:53h, 01 August Reply

    Sharia Law is very similar to Halacha, or any other religious law. I don’t know where most of the people responding here got their information, but Sharia is not compulsory for non-muslims as is evident in the Millet System of the Ottoman Empire. Religious minorities have their own courts and their own laws. I would remind people that orthodox jews in New York do not have the right to divorce except by the ruling of a religious court. In effect Halacha law supersedes civil law here, as evidenced by the many women forced to stay married as in Halacha their desire to divorce bears no value and is sole purview of the husband.

    The old testament is rife with whole-sale executions. Islamic Jurisprudence is a well-established with a longer history than any court system in the west. Also, Islamic law is not “stolen” from the bible. They see themselves as logical extensions of the bible and torah. They do not see themselves separate from either jews or christians and hold their holy books in high regard. they are no more stolen than a protestant has stolen them from the orthodox or the jews. It is essentially why their religious rights are preserved in most islamic countries, unlike what we saw in the inquisition in Europe.

    “In the Ottoman Empire, a millet was a separate legal court pertaining to “personal law” under which a confessional community (a group abiding by the laws of Muslim Sharia, Christian Canon law, or Jewish Halakha) was allowed to rule itself under its own system. After the Ottoman Tanzimat (1839–76) reforms, the term was used for legally protected religious minority groups, similar to the way other countries use the word nation. “

  • P.A.Mohamed Ameen 11:07h, 05 September Reply

    In the west the Muslim minorities live in the abode of treaty. There is no question of Shariah law being forced by Muslims on the dominant majority of non Muslims.

    In the West the Muslims follow the Shariah only in their personal and private lives

    For instance, when a Muslim came into say USA, the GOVT., issued him a visa, and he signed something. In the issuance of the visa and his signing of it, a legally binding contract

    occurred which was Salus populi suprema lex esto( the good of the people shall be the supreme law)

    It was an agreement that when he came USA country, he would obey the laws and would follow the restrictions that this visa demanded that he follows.

    This was a contractual agreement that is legally binding according even to the divine laws. In looking at this, we have to understand that the relationship between the Muslims living in a foreign land and the dominant authorities in this land is a relationship of peace and contractual agreement-of a treaty.

    This is a relationship of dialogue and a relationship of giving and taking.

    Also, it is necessary for us to show respect to these people. Islam prohibits us from showing aggression towards people who do not show aggression towards us.

    We also have to be good citizens because an excellent Muslim is also an excellent citizen in the society that he lives in.

    This does not mean that we lose our distinction, that we become completely immersed in the dominant society to where we no longer have our own identity-that is not what I’m calling to.

    We have to maintain those things that are particular to us as a community, but we also have to recognize that there are other things that are not particular to us but rather general to the human condition that we can partake in; and these things are not things that we should be ignorant and neglectful of but things that we should be engaged in.

    We have to maintain our roots. We have deep roots in our faith, but at the same time we have to be open to allow others to come into that deep-rootedness.

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