Harvard Law School professor Noah Feldman touched off a fierce debate when he recently wrote in The New York Times Magazine that Islamic Sharia law represents the highest state of "the rule of law." But what many of Feldman's critics did not recognize is that his argument has been building over several years.

Just as an old photographic print slowly becomes visible when immersed in developing solution, Noah's claims about the alleged virtues of Sharia first surfaced in his 2005 book, Divided by God, written when he was still a professor at NYU. Three years later, Feldman, who helped draft the Iraqi constitution, has turned his argument into a new book, called The Fall and Rise of the Islamic State. The book marks Feldman's emergence as a leading academic advocate for Sharia law.

If this seems like a bizarre role for someone who attended the Orthodox Maimonides School near Boston, it is in line with the career trajectory of a very bright young man who wants to be preeminent among the severely compromised academics inhabiting the Middle East Studies Association.

Thus, one week after his article, "Why Sharia?" was featured in the Times' magazine, Feldman presented his position at Harvard's "Interfaculty Initiative on Contemporary State and Society in the Islamic World." The initiative previously had featured UCLA's Khaled Abou el Fadl, who set the tone for the series with his opening statement that "Whether Sharia complies –– or does not comply –– with fundamental human rights is vacuous and irrelevant." So much for a thousand years of western humanist thought and liberal jurisprudence.

What made Feldman's lecture different from his magazine piece was what he left out of the latter. Obviously, any discussion of Sharia must include what informs the law at its heart –– The Koran, Sunna and, to a lesser extent, Sira. Writing for the Times, he at least traced the roots of Sharia to the Koran. But that was as far as he would go. At Harvard, his analysis of Sharia was limited to "the rule of law" as interpreted by "scholars" producing an Islamic "constitution," all of which is refined and perfected by a "balance of power" between rulers and scholars.

In Feldman's revisionist account, the evolution of Islamic law echoes the Western experience and is compatible with it. To Feldman, Sharia evolves from "higher law" to "the rule of law" in a neat conflation of the secular with the holy that places the Islamic code alongside the West's rigorously evolved concept of secular justice. Feldman suggests that the dreaded huddud laws of amputation and other draconian penalties for apostasy and blasphemy are mere "worldly commands," notwithstanding the fact that they are drawn directly from the Koran. For example, Sura 5:33 prescribes amputation of limbs "on opposite sides," a dreadful penalty that has found new life in some of the Sharia-ruled lands today. Indeed, the fundamental nature of Sharia law is inextricably connected to divine revelation, a concept with which the West did away centuries ago. The fact that a Nigerian woman, Amina Lawal, was recently spared the Hadithic-inspired penalty of being stoned to death for adultery, had more to do with international outrage and pressure than any "nuanced" application of traditional Sharia law.

All this was utterly missing from Feldman's lecture. There was much else, too, that the professor obscured. For example, Feldman cited the 11th century Baghdad jurist, al-Mawardi, as a shining example of the purity of Sharia in the face of the abuse of secular rulers. A pity Professor Feldman failed to note that the medieval Basra scholar was a staunch proponent of jihad war and violent imposition of Sharia law as it applied to dhimmis, that is, Christians and Jews. Al-Mawardi writes in his epic Laws of Islamic Governance of the jizhya or compulsory poll tax levied on dhimmis, "Payment is made immediately and is treated like booty. It does, however, not prevent a jihad being carried out against them in the future."[1]

Similarly passed over by Feldman were some telling observations on Sharia by one of Professor Feldman's favorite historians of Islam, Sir Hamilton Gibb: "The evidence of two women is reckoned as equal only to that of one man; that of non-Moslems against Moslems is occasionally, but grudgingly admitted, and on serious charges not admitted at all." (italics added) "... the Muslim murderer of a dhimmi does not suffer the death penalty; a dhimmi man may not marry a Moslem woman, whereas a Moslem man may marry a dhimmi woman. In the second place, dhimmis are obliged to wear distinctive clothes so that they may not be confused with true believers [i.e., Muslims], and are forbidden to ride horses, or carry arms. Finally, though their churches may be, and in practice frequently have been, converted into mosques, they are not to build new ones. The most they may due is repair those that have fallen into decay."[2]

We find no reference whatsoever, in either Professor Feldman's New York Times article or in his recent lecture, to Sharia and its impact on non-Muslims, whether they be dhimmis or idolaters (those that "associate" other gods with Allah –– mushrikun). The body count and the divinely-inspired discriminatory laws resulting from the Muslim conquests of the 7th century up to the present belie Feldman's grandiose apologetic that "Islamic law offered the most liberal and humane legal principles available anywhere in the world."[3]

Indeed, even a critic sympathetic to Islam, Alan Wolfe of Boston College, recognizes Feldman's intent. He writes, "The problem with Feldman's compromise lies elsewhere. Offered as a non-biased solution to church-state conflicts, Feldman's proposal, like separation of church and state itself, is biased against some religions and in favor of others."[4] You guess which religion Feldman favors. And it can only be a matter of time before the professor, having asserted that Sharia law is desirable, will assure us that its introduction in the United States is inevitable.
 

ENDNOTES

[1] Andrew Bostom, The Legacy of Jihad, Prometheus Books, Amherst, NY 2005 p.29

[2] H.A. R. Gibb and Harold Bowen, "Islamic Society and The West," Vol. 1, (London, 1957) p. 208

[3] Noah Feldman, "Why Sharia?", New York Times Magazine, March 16, 2008. p. 1

[4] http://www.slate.com/id/2123459

[Editor's Note: See also David Yerushalmi's "Noah Feldman's Fantasy Shari'a" March 19, 2008 in Front Page Magazine
www.frontpagemag.com/articles/Printable.aspx?GUID= 29F391F0-66A8-4CE4-89C3-8E967B16A172]

 
Hillel Stavis lives in the Boston area and is a member of the David Project. This article appeared March 27, 2008 in FrontPageMagazine.com
http://frontpagemagazine.com/Articles/Read.aspx?GUID= D54FDFAB-ADF3-439C-9FD8-AEC1840CC610

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