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Noah Feldman’s Fantasy Shari’a By: David Yerushalmi
FrontPageMagazine.com | Wednesday, March 19, 2008

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.

David Yerushalmi, an attorney specializing in the intersection between Shariah and international terrorism, is also directing the Mapping Shariah Project.

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