According to Noah Feldman’s
latest contribution to the New York Times Magazine this past
Sunday, March 16, a forum in which his essays regularly appear, the best thing
going for the peaceful introduction of the rule of law and even representative
government in the Muslim world is for the West to promote the political goals
of Islamism. “Islamism” is the Islamist political agenda which in turn is the
effort to overthrow or otherwise root out the secular autocratic tyranny that
has plagued the Muslim world since the first half of the twentieth century and
to replace it with Hamas, the Muslim Brotherhood, Hizbullah, or any number of
Islamic political parties which seek to empower Shariah – Islamic law -- as the
supreme arbiter of law and politics among Muslims worldwide.
Noah Feldman, one of the legal scholars who helped craft the
Iraqi constitution, packages Shariah in a Black Box wrapped up as some higher
order of divine law protecting the people and their “rights” against the
unchecked abuse of political power that might have reigned but never did, at
least in Feldman’s world, during the heyday of Islamic hegemony. Almost
unbelievably, Feldman proffers the thesis, based upon a rather dramatic
revision of the historical record, that the Shariah authorities of antiquity,
embracing some divine mandate for good and noble government under the rule of
law, effected a constitutional and civilized check on the unrestrained
executive political power of the Islamic Empire’s Caliphs. And, what’s more,
Feldman contends that had the Turks not undermined the authority of the Shariah
authorities by introducing such notions as legal codifications and civil
government, the autocratic tyrants of the Muslim world of today might very well
have not emerged.
What Feldman has concocted, likely unwittingly, is not so
much propaganda for the Shariah-faithful Islamist cause, but a version of the
Marxist-Hegelian dialectic that would be quite easily dismissed if it weren’t
so dangerous. Recall that the Bush Pentagon hired this man to help write the
Iraqi constitution. And, indeed, he left his mark. For Feldman, if you have one
part Arab political leadership, preferably some kind of democratically elected
legislative body (thesis), countered by one part authoritative Shariah judicial
body (antithesis), you end up with a peaceful, civil society run by the Rule of
Law (synthesis). While he admits that peace and the rule of law might not take
hold immediately, or at all, he is convinced that Shariah is the way to get
there. According to Feldman, Shariah is the universal Rule of Law for Muslims.
But what is wrong with Mr. Feldman’s version of the world of
Shariah? It has never worked; neither in history nor in contemporary times, and
the reason is that Shariah is not what Feldman claims it to be. To suggest, as
Feldman does, that the Islamic Empire was some finely balanced Rule of Law
protecting individual freedoms and “rights” extends credulity beyond the
breaking point. If you were a Muslim, or a non-Muslim prepared to live in the
subjugated state of a dhimmi, as meticulously documented in the scholarship of
Bat Ye’or and others, life in the often tumultuous Islamic Empire might have
been tolerable. But if you weren’t prepared to convert or live in subjugation,
life was simply over. According to Shariah, you must be murdered. And murdered
you were. The pagans, Jews, and Christians were not driven from the Arabian Peninsula with feathers and entreaties. The
Christians of southern and central Europe
weren’t miraculously converted into faithful Muslims by the sweet melodies of
Arabic chants wafting across the moonlit sky. Men, women, and children were
slaughtered in the name of Allah and they were all murdered quite “justly”
according to the “rule of law” of Shariah.
Shariah’s designs for world hegemony and dominion over the
infidels has been the law since Shariah’s inception; it has been inordinately
successful when implemented; and it continues to be the law among the
Sharia-faithful Islamists even today. Indeed, what authoritative Shariah
scholars, either from the Sunni tradition or the Shia, have ruled that
apostates should not be murdered?
Feldman is adept at pointing out Shariah’s focus on
legalisms, but he has quite noticeably avoided its stated goals and Jihadist
methods. To avoid this problem, Feldman slips away from what Shariah actually
demands and articulates what he claims are the refined political intentions of
the Islamists: an attempt to build some forward-looking representative
government based upon the rule of law. How Feldman divines these lofty western
sounding intentions is a mystery because it is not what the Islamists actually
say. The Islamist political literature embraces Jihad and a world subjugated to
Shariah’s dictates quite explicitly. In this genre, Shariah’s goal of a world
under Shariah’s “rule of law” is not merely theoretical but real and obtainable.
And, Jihad is the means to that end. In fact, federal prosecutors recently
introduced into evidence in one terror-financing criminal prosecution a “memorandum”
setting forth the Muslim Brotherhood’s goals for its affiliated organizations
such as the Council on American-Islamic Relations or CAIR: to engage in “a kind
of grand Jihad in eliminating and destroying the Western civilization
from within and ‘sabotaging’ its miserable house by their hands and the hands
of the believers so that it is eliminated and Allah’s religion is made
victorious over all other religions.”
Indeed, Feldman recognizes an empirical hurdle for his
dialectic. Shariah as the law of the land exists today in at least three
countries: Iran, Saudi Arabia and Sudan
and in the terror-regime known as Gaza.
So how does Feldman explain the evidence of tyranny and oppression in
territories under the sway of Shariah’s vaunted rights-based rule of law?
Instead of conceding that all such regimes do indeed live by the rule of law --
the rule of law just happens to be a barbaric one – Feldman offers up some
political science sophistry to explain away what many observers would
understand to be an open and shut case to criminalize Shariah.
Thus, Feldman dismisses the Iranian case as having no
secular counterweight to the Shariah-touting mullahs. The “fine balance” of the
Shariah constitution and rule of law is off. In Saudi Arabia, where there
appears to be the perfect Feldman-esque balance between secular leaders and
Shariah judicial authorities, the explanation for the regime’s rotten
disposition is that the secular rulers have no need for tax payers (per
Feldman, tax payers are all it takes to keep the fine balance between secular
authority and Shariah authority working as a well-oiled constitutional, rule of
law machine!). Feldman doesn’t even address the horrors that are Sudan, Gaza, and
that were Taliban-run Afghanistan.
It was enough to rely on his falsified and romanticized rendition of Islam’s
Golden Era, where, Averroes, one of Islam’s greatest and most esteemed Sharia
jurists wrote: “Scholars agree that all polytheists should be fought. . . .
Damage inflicted upon the enemy may consist in damage to his property, injury
to his person or violation of his personal liberty, i.e. that he be made a
slave and is appropriated.” What Feldman must know, but buries in the Shariah
Black Box, is that according to almost all classic and contemporary Shariah
authorities, “polytheism” includes any form of constitutional government that
elevates secular law over Shariah – Allah’s perfect law.
In short, Feldman belongs to a school of academia that was
popularized in the 1960s. In its rejection of Western national existence and
sovereignty, it embraces and romanticizes almost any form of universal call for
one humanity living in a one world state – irrespective of its barbarism and totalitarianism.
Feldman has apparently moved beyond Marxism and Stalinism favored by the Old
Left and has embraced the new swan song: the Islamists’ universal rule of law:
Shariah for one and for all.
Apparently, the Harvard-New York Times view is that what
our constitution needs is one more amendment: Neither Congress nor any state
shall enact any law that conflicts with Shariah, otherwise known as Feldman’s
Favored Rule of Law.