Halacha, Sharia and the Religious Acceptance of Constitutional Governance

by Rabbi Jon Hausman (October 2009)

Delivered at the Stop Islamization of America launch in the Rayburn House Office Building, 25 September 2009

I am currently studying the Jewish tort laws contained in the Rabbinic tractate Baba Kamma. The tractate itself contains all kinds of abstruse cases dealing with damages and liability under specific circumstances.

 

Torts can be perpetrated by a person against another, or by one’s property (for example, an ox) against the person or property of another. There can be some sort of damage, yet the defendant can still be exempted from monetary compensation. The Halacha/principles of Jewish law in this regard also recognize damages and compensation for damages to one’s reputation, dignity…perhaps, caused by embarrassment or slander. There is punishment for striking one’s parent (death) or violating some specific law related to the observance of the Jewish Sabbath which, in fact, calls for the imposition of the death penalty according to the Torah (e.g. intentionally starting a fire on Shabbat). Yet, if an owner’s domesticated animal kicks over a lamp and causes a fire on the Sabbath, the owner is exempt from the death penalty and pays monetary compensation only. If one owns a slave and knocks out a tooth or damages an eye, the slave is set free. Confusing, complicated, opaque.

 

Here is another well-known secret. In most respects, this Jewish legal material is of purely theoretical interest, its applicability limited solely to issues of personal piety and observance today (e.g. the Jewish dietary laws, prohibited Shabbat activity). Capital punishment has not been meted out by courts of Jewish law since approximately the year 300 BCE. Rabbinical courts do not generally handle cases of monetary or property damage. Jews no longer own slaves and haven’t done so for millennia. For these reasons, such halachot (plural of Halacha, Jewish law) do not have much in the way of relevance for us Jews and our lives today. Why?

 

Simply stated, there is a basic Rabbinic principle that has operated since roughly the year 226 CE. That principle is known as Dina d’malchuta Dina, the law of the country is binding and, in certain cases, is to be preferred to Jewish law/Halacha. 

 

What were the practical reasons for the adoption of such an Halachic principle? There are many suppositions posited. However, the Rabbis who functioned between the years 200 – 630 CE were very practical. The Rabbis during this four plus century period recognized that Jews had to develop and maintain positive relationships with the governing non-Jewish civil society (e.g. Parthian and subsequent Sassanid Persian rulers of Babylonia) which surrounded the Jewish community. 

 

Samuel, the leader of the Babylonian Jewish community in 241 CE, specifically imbued his community with the consciousness that one must be reconciled to changed circumstances regarding government, and that civil law is necessary for the functioning of the greater society. The result was an internal recognition of Judaism’s non-supercessionist and non-conversionary character. According to the Prophet Nehemiah, Jews should obey the laws of their rulers (Nehemiah 9:37). 

 

As a result, Jews view this legal principle as deriving from the Biblical authority. It extends to real property issues (after all, the government could/can confiscate property), common currency, taxes, recognition of administrative officers and documents and regulations issued by such authorities, as well as the appointed juridical positions within and outside of the Jewish community. 

 

The United States has a Constitution under which the government functions, and the Bill of Rights which protects basic human rights and freedom – rights derived from the Almighty according to the secular foundational documents of these United States –  freedom of speech, freedom of worship, freedom of education and freedom to organize political parties. Judaism accepts this situation without issue.

 

Sharia would seem to have much in common with Halacha. Sharia means “the path” (as does the Hebrew word halacha at its etymological root) and, on its face might be described as the religious code for living the moral system according to Islamic tradition…perhaps, in the same way the Bible would serve for Christians. The question with Sharia (as with Halacha) is the same. At this point in time, is it the same kind of didactic and theoretical exercise in its application as is the application of the entire corpus of Jewish law? In the end, does the Rabbinic principle of ‘the law of the land is paramount’ apply in Islam?  

 

You peal back the layers and understand that Sharia refers both to the Islamic system of law and the totality of the Islamic way of life. It is based on the Qur’an and the Sunna (Islamic Custom or practice; particularly that associated with the exemplary life of the Prophet Muhammad, comprising his deeds and utterances as recorded in the hadith, hadith literally defined as “report” or “narrative” in Arabic). Whereas Judaism took the Torah and its commands as rubrics within which to live, and generations of interpretation explain a number of mitzvoth (Torah commandments) out of existence according to the principle of Torah Lo Bashamayim Hi (Torah exists here for us, not in Heaven), Sharia holds a different view. 

 

Muslims believe that the Qur’an is the direct word of Allah delivered to the last and greatest prophet Muhammad. Therefore, it is immutable, perfect, unchangeable, static, and unchanging. What can’t be derived from the Qur’an may be gleaned from the Sunna, which relates how Muhammad conducted his life in practice, and is considered by Muslims to be immutable for all time. 

 

So, if Muhammad used the pretext of a hudna or tahadiya (two Qur’anic terms meaning an impermanent cessation of military hostilities) to regroup and strengthen his forces for a future battle against the Banu Quraysh, killing and enslaving the Jews in Arabia, legitimizing the rape of women as a tactic in war, it applies today as a tactic. (Parenthetically, the treatment of Jews as described and prescribed in the Qur’an is particular graphic and loathsome…kill the Jew where one finds a Jew and do so for glory and honor.) If the punishment for rudd/apostasy, to a murtadd was death, then apostasy continues to be a capital offense. Homosexuality, adultery, freedom of speech issues when it comes to criticizing Islam or Muhammad or drawing satire cartoons such as the Jylland Posten satires by Kurt Westergaard are capital offenses under Islam (Does anyone remember the painting of the cross smear with feces, declared protected speech under the First Amendment? America’s Mayor Rudy Guilani had many issues with this piece of art. He expressed his displeasure verbally and did not show his patronage to the exhibit)…How does this impact our Bill of Rights as Islam is as it has always been, expansionary, supercessionist? Or, in the words of a number of its defenders in the US, Islam is not meant to be one amongst equals but to be the supreme law of the land?

 

In theory, Sharia jurisprudence actually intended to be applicable to Muslims only. Christians and other non-Muslims were supposed to be exempt from the provisions of the law; a provision that is not and has never been universally followed. Indigenous Christian and Jewish populations of the Middle East whose communities pre-dated the advent of Islam by centuries later were/are subjected to jizya and other punitive taxes and dissociative treatment, etc. as a result of their direct or indirect refusal to submit (in Islam, one who submits is a Muslim) according the Qur’an and Hadith, it applies today. Because in Islam, Religion is State and State is Religion. 

 

Islam is political, and is determined to conquer. “Fast during Ramadan, pray five times a day, go to Hajj, and listen to us and do what we say.”  It concerns the unofficial sixth pillar of Islam, Jihad. What does the term Jihad actually mean and how is it operative? It can be overt as in outright military hostilities and actions, and it can be expressed in the manner in which non-Muslims are treated under Muslim governing authority. It can be covert in the manner in which the court system is used to further the grand goals of preferences for Muslims above others, and the use of Da’wa (conversionary outreach) and Taqiyyah (Islamic religiously sanctioned dissimilitude).  

 

There is an underground Muslim organization in every Muslim state threatening the Muslim ruler with death if he does not adhere to Sharia. Reformers, those who try to bring democracy, are automatically ruddha, murtadd, apostates. If you’re a good Muslim and you follow Sharia, you have to follow all of it. You can’t pick and choose (how many Jews observe the Fast of Yom Kippur, but ignore Kashruth/Jewish dietary laws? Non-observance does not exclude a Jew from the Jewish body politic). While there is a personal relationship with Allah/G-d, the overall relationship is to the Ummah/the polity of all Muslims. 

 

Theft, depredations suffered by women, plaintiffs exacting legal revenge (eye for an eye is taken literally), gambling, alcohol consumption all command exacting punishment under Sharia. 

The values of Islam couldn’t be more different than American values of freedom, liberty, and individual responsibility.  Also, the concept that all men (and women) are created equal under God and should be treated accordingly is a concept that doesn’t exist in Islam, beginning with its foundational and doctrinal texts.

Countries like Saudi Arabia, Iran, and Afghanistan under the Taliban, whose legal systems are based on Sharia openly torture and mutilate citizens, persecute homosexuals, sentence apostates to death and restrict all freedom of religion. The extent of Sharia’s influence in supposed moderate countries such as Egypt, Jordan, Lebanon, Bangladesh, and Pakistan is instructive.

Democratic, western societies embrace and legislate many basic human rights and freedoms. Some of these rights and freedoms include freedom of speech, freedom of worship, freedom of education and freedom to organize political parties. These are rights enshrined in the Bill of Rights, part and parcel of the system of governance defined by the United States Constitution. Imagine how different life would look with those “Islamic values” being put in place in America. Our country and way of life would look radically different and we would be poorer as a nation for it.

 
Rabbi Hausman serves the Ahavath Torah Congregation in Stoughton, Massachusetts. He holds a degree in law as well as Middle East Studies. He attended the American University in Cairo and is an Arabic speaker. He was interviewed for NER after hosting Dutch MP Geert Wilders at his Synagogue. 
 

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