Thursday, May 27, 2010

Whipping Boys and Spanked Wives

By INDIA NEWS TEAM

India News Network presents two diametrically opposed points of view on the collision between the West and Islam, as encapsulated by concepts of law and justice. Newscop focuses on wife-beating to illustrate the fundamental incompatibility of sharia and Western law, while Sarah Williams discusses how Western justice is far from blind when it comes to America's Muslim citizens.

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.

Muslim-beating in the 'righteous' US
Alioune Niass, the Sengalese Muslim vendor who first spotted the now infamous smoking SUV in Times Square and alerted police, is no hero.

If it were not for the Times of London, we would not even know of his pivotal role in the story. No mainstream American newspaper bothered to mention or profile Niass, who peddles framed photographs of celebs and the Manhattan skyline. None of the big television stations interviewed him.

As far as the readers of the New York Times are concerned - not to mention the New York Post and the Daily News - Niass doesn't exist. Nor does he exist for President Barack Obama, who telephoned Lance Orton and Duane Jackson, two fellow vendors, to thank them for their alertness in reporting the SUV. The New York Mets even feted Jackson and Orton as heroes at a game with the San Francisco Giants.

And Niass? Well, no presidential phone calls, no encomiums, no articles (though his name did finally surface briefly on a New York Times blog several days after the incident), no free Mets tickets. Yet as the London Times reported, it was Niass who first saw the clouds of smoke seeping from the SUV on that May 1 Saturday night.

He hadn't seen the car drive up because he was attending to customers - and, for a vendor in Times Square, Saturday nights are not to be taken lightly. Niass was alarmed, however, when he saw that smoke. "I thought I should call 911," he told the Times, "but my English is not very good and I had no credit left on my phone, so I walked over to Lance, who has the T-shirt stall next to mine, and told him. He said we shouldn't call 911. Immediately he alerted a police officer nearby." Then the cop called 911.

So Lance got the press, and he and Jackson, who also reported the SUV, have been celebrated as "heroes". As the Times interview with Niass has made the Internet rounds, there have been calls for the recognition of his "heroism", too.

These three men all acted admirably. The two other vendors did what any citizen ought to do on spotting a smoldering car illegally parked on a busy street. But heroes? In the case of Niass, characterizing him as a hero may in a sense diminish the significance of his act.

A vendor in New York since 9/11, he saw something amiss and reported it, leading him into contact with the police. That a Muslim immigrant would not think twice about this simple civic act speaks volumes about the power of American society and the actual day-to-day lives and conduct of Muslims in this nation, particularly immigrant Muslims.

This was a reasonably routine act for Orton and Jackson, but for Niass it required special courage, and the fact that he acted anyway only underscores what should be an obvious fact about Muslims in post-9/11 America: they represent a socially responsible and engaged community like any other.

Assault on American Muslims
Why do I say that his act required courage? Like many Muslim immigrants in New York City and around the country, Niass senses that he is viewed with suspicion by fellow citizens - and particularly by law-enforcement authorities - simply because of his religion. In an interview with Democracy Now, an essential independent radio and television news program, Niass said that, in terrorism cases, law enforcement authorities view every Muslim as a potential threat. Ordinary citizens become objects of suspicion for their very ordinariness. "If one person is bad, they are going to say everybody for this religion. That is, I think, wrong."

As far as Niass is concerned, terrorists are, at best, apostates, irreligious deviants. "That not religion," he told his interviewer, "because Islam religion is not terrorist. Because if I know this guy is Muslim, if I know that, I'm going to catch him before he run away."

The New York Police Department Intelligence Division, the Federal Bureau of Investigation and Immigration and Customs Enforcement all routinely run armies of informers through the city's Middle Eastern and South Asian communities. In the immediate wake of 9/11, sections of New York experienced sweeps by local and federal agents. The same in Philadelphia, Detroit, Chicago, Houston and communities on the West Coast - everywhere, in fact, that Muslims cluster together.

I've been reporting on this for years (and have made it the subject of my book Mohamed's Ghosts: An American Story of Love and Fear in the Homeland). Despite the demurrals of law-enforcement officials, these sweeps and ongoing, ever-widening investigations have focused exclusively on Muslim enclaves. I have seen the destructive impact on family and community such covert police activity can have: broken homes, deported parents, bereft children, suicides, killings, neighbors filled with mutual suspicions, daily shunning as a fact of life. "Since when is being Muslim a crime?" one woman whose husband had been swept up off a street in Philadelphia asked me.

Muslim residents have been detained, jailed and deported by the thousands since 9/11. We all know this and law-enforcement and federal officials have repeatedly argued that these measures are necessary in the new era ushered in by al-Qaeda. A prosecutor once candidly told me that it made no sense to spend time investigating or watching non-Muslims. Go to the source, he said.

Radicalization is a problem of limited proportions
There are many problems with this facile view, and two recent studies - one from a think-tank funded in large part by the federal government, the other from the Sanford School of Public Policy at Duke University and the University of North Carolina's departments of religion and sociology (using a US Department of Justice grant) - highlight some of the most glaring contradictions.

The Rand Corporation studied the incidence of terrorist acts since September 11, 2001, and found that the problem, while serious, was wildly overblown. There have been, Rand researchers determined, all of 46 incidents of Americans or long-time US residents being radicalized and attempting to commit acts of terror (most failing woefully) since 9/11. Those incidents involved a total of 125 people.

Think about that number for a moment: it averages out to about six cases of purported radicalization and terrorism a year. Faisal Shahzad's utterly inept effort in Times Square would make incident 47. In the 1970s, the report points out, the country endured, on average, around 70 terrorist incidents a year. From January 1969 to April 1970 alone, the US somehow managed to survive 4,330 bombings, 43 deaths and US$22 million in property damage.

The Rand report, "Would-Be Warriors: Incidents of Jihadist Terrorist Radicalization in the United States since September 11, 2001," argues that ham-handed surveillance and aggressive police investigations can be, and often are, counter-productive, sowing a deep-seated fear of law-enforcement and immigration authorities throughout Muslim communities - whose assistance is vital in coping with the threat of Islamic terrorism, tiny as it is here.

Family members, friends and neighbors are far more likely to know when someone is headed down a dangerously radical path than the police, no matter how many informers may be in a neighborhood. "On occasion, relatives and friends have intervened," the Rand researchers write. "But will they trust the authorities enough to notify them when persuasion does not work?" And will the authorities actually use the information provided by family members when they receive it? Don't forget the perfunctory manner in which Central Intelligence Agency officials treated the father of the underwear bomber when he tried to report his son as an imminent threat.

The second study, conducted by a research team from Duke University and the University of North Carolina, found similarly small numbers of domestic terror plots and incidents since 9/11. The report identifies 139 Muslim Americans who have been prosecuted for planning or executing acts of terrorist violence since September 11, 2001, an average of 17 a year. (Again, most of these attempted acts of terror, as in the Shahzad case, were ineptly planned, if planned at all.) Like the Rand report, the Duke-UNC study highlights the meager numbers: "This level of 17 individuals a year is small compared to other violent crime in America but not insignificant. Homegrown terrorism is a serious but limited problem."

The Duke-UNC researchers conducted 120 in-depth interviews with Muslims in four American cities to gain insight into the problem of homegrown Islamic terrorism and the response of Muslim Americans to it. Why so few cases? Why so little radicalization? Not surprisingly, what the researchers found was widespread hostility to extremist ideologies and strong Muslim community efforts to quash them - efforts partially driven by a desire for self-protection, but more significantly by moral, ethical and theological hostility to violent fundamentalist ideologies.

Both of these reports underscore the importance of what the researchers call "self-policing" within Muslim communities. They consider it a critical and underutilized factor in combating terrorism in the US. Far from being secretive breeding grounds for radicalism, the Duke-UNC report argues, mosques and other Muslim community institutions build ties to the nation and larger world while working to root out extremist political fundamentalism. It was not for nothing that Khalid Sheikh Mohammed instructed his 9/11 hijackers to steer clear of Muslim Americans, their mosques and their institutions.

The UNC-Duke report urges federal and local officials to work aggressively to integrate Muslim communities even more fully into the American political process. Authorities, it suggests, should be considering ways of supporting and strengthening those communities by actively promoting repeated Muslim denunciations of violence. (Such condemnations have been continuous since 9/11 but are rarely reported in the press.) Public officials should also work to insure that social service agencies are active in Muslim neighborhoods, should aggressively pursue claimed infractions of civil rights laws, and should focus on establishing working relationships with Muslim groups when it comes to terrorism and law enforcement issues.

The Times Square incident - and, yes, the small but vital role played by Alioune Niass - illustrate the importance of these commonsensical recommendations. Yet the media have ignored Niass, and law-enforcement agencies have once again mounted a highly public, fear-inducing investigation justified in the media largely by anonymous leaks.

This recreates the creepy feeling of what happened in the immediate aftermath of 9/11: the appearance of a massive, chaotic, paranoid probe backed by media speculation disguised as reporting. A warehouse raided in South Jersey. Why? No answers. A man led away in handcuffs from a Boston-area home. Who is he? What is his role? Was he a money man? Maybe. But maybe not. Suspicious packages. Oddly parked trucks. Tips. Streets closed. Bomb squads cautiously approaching ordinary boxes or vehicles. No answers - even after the all-clear rings out and the yellow caution tape comes down.

More importantly, the controlled flow of anonymous leaks to the mainstream press has laid the groundwork for the Obama administration to threaten Pakistan harshly - even as Iraq and Afghanistan sink further into deadly and destructive fighting - and to ponder extreme revisions of criminal procedures involving the rights of suspects. The administration's radical suggestion to suspend Miranda rights and delay court hearings for terrorism suspects amounts to a threat to every American citizen's right to an attorney and a defense against state power. Is this the message the country wants to send "the evil-doers", as president George W Bush used to call them?

Or have we already taken the message of those evil-doers to heart? Faisal Shahzad, an American citizen taken into custody on American soil, disappeared into the black hole of interrogation for more than two weeks - despite Obama's assertion to a CIA audience over a year ago that "what makes the United States special ... is precisely the fact that we are willing to uphold our values and our ideals even when it's hard, not just when it's easy, even when we are afraid and under threat, not just when it's expedient to do so."

When the going gets tough, as Attorney General Holder made clear on Meet the Press on May 9, the tough change the rules. "We're now dealing with international terrorists," he said, "and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face." None of this is good news for Muslims in America - or for the rest of us.
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