Sharia, Canon, New Zealand law

There is a lack of understanding and a lot of misinformation about Islam and Sharia law.

Some Muslim countries have awful (to me) legal systems and practices. So do some Christian based countries, and also countries not associated with a specific religion, like China and Russia – see Insulting Putin May Now Land You in Jail Under a New Russian Law.

New Zealand lawyer Felix Geiringer (who studied Sharia at University and has worked as a lawyer in the field of Islamic finance) has written An attempt at demystifying Sharia.

Sharia is a legal system which seeks to extend the religious principles of Islam into a legal structure applicable to daily life.  You could think of it as the Islamic counterpart to Judaism’s Halakha or Catholicism’s Canon Law.  However, there are differences between them.

Catholicism has a well-defined hierarchy, and senior office holders have the power to make law.  Sharia doesn’t work that way.  I’ve also heard it said that Sharia and Halakha seek to extend into every part of a devotee’s life in a way that Canon does not.   There are also significant differences between Sharia and Halakha, but that seems to be a particularly controversial topic and I do not address it here.

Sharia law is mostly derived by analogy from the two foundation texts: the Quran (God’s revelations to Muhammad) and the Sunnah (a record of Muhammad’s life).

Like common law judges, there are people in the Islamic world who are respected as being able to apply this reasoning and make decisions on new issues as they arise.  And, like the common law, there is scope for different people to reach different conclusions.  The decisions such people reach can have authoritative weight outside of the issues before them – more so if a consensus has arisen between multiple such decisions from different jurists.

There are acts of violence described in the foundation texts which are antithetical to modern civilised society – just like there are in the Bible.  But, also just like the Bible, there are many passages extolling virtues like love and kindness, and urging people to look after their neighbours and those less fortunate than them.

Supporters of Islam often promote the “love and kindness” parts (this had been prevalent in New Zealand in the wake of the Christchurch mosque terror attacks). Opponents of Islam promote “acts of violence described in the foundation texts” (while ignoring similar in Christian foundation texts).

Modern Muslims living in accordance with Sharia derive workable rules for living in the modern world from fundamental principles taken from the foundation texts.  Modern Muslims do not think Sharia requires them to pretend it is still the 7th Century in the same way that modern Christians do not kill all people who work on Sundays (Exodus 35:2).

There are Islamic states that have, for example, criminal justice systems that do not conform to New Zealand’s standards of fairness or proportionality.  They implement those systems in the name of Sharia. Yet, there are other people who consider themselves devout Muslims and who argue that that is a misapplication of Sharia.

Remember that there are about 1.8 billion Muslims in many countries around the world, living under a wide variety of legal systems. Some are not as good as others.

In Islamic finance, I dealt, in particular, with two fundamental principles: the prohibition of usury; and the prohibition of gambling.

That is usury in its original meaning – charging interest.  You know, the thing that annoyed Jesus so much he drove everyone out of a Temple with whips.  Despite Jesus’ low opinion of money lenders, usury in the Christian world went from prohibiting any interest, to prohibiting too much interest, to payday lenders advertising on television.

Equally, the problems with gambling are well known in our society.  At one end, it persuades some of our least well paid to put everything they earn into pokies.  At the other, it crashed the world economy in 2007.

Islamic finance finds ways to allow financing that depend on neither interest nor speculation.  It is a difficult, but not impossible, task.  The financing structures that are created are, at the least, useful alternatives to mainstream finance.  For example, contracts have been devised which enable someone to buy a house without unaffordable mortgage payments by instead sharing the house value growth.

That sounds similar to shared equity type mortgages that have been proposed in New Zealand recently to try to overcome the difficulties of buying a first property here.

Should we fear the arrival of Sharia?  Actually, it is already here and has been for a very long time.  It will have arrived with the first Muslims to settle here in the middle of the 19thCentury.  It is still here with those who chose to arrange their affairs in accordance with it.  Just like there are people in New Zealand who follow Halakha or Canon.

What about Sharia becoming part of the mainstream law of New Zealand?  Again, arguably it already is to at least a limited extent.  In recognising the applicability of principles of tikanga, our courts have noted that the common law method has always taken account of the common traditions of subcultures within society.   I am not aware of a case that has done this, but, notwithstanding the relative importance of tikanga to New Zealand, I would expect that weight would also be given to Sharia in a case that appropriately raised it.

That won’t include applying the most brutal examples of Sharia law to the Christchurch terrorist, as some people have suggested. He is likely to have to contemplate his crimes (alleged to have committed 50 murders and 42 attempted murders) for the rest of his life in a confined space, possibly alone to protect him.

While there is plenty of room to improve, I would also argue that our general laws, public institutions, and major private institutions, have been steadily moving away from an assumption that we are all Pakeha Christians.  Gradually our laws have been shifting to ones that seek to genuinely accommodate people of all cultural backgrounds, including Islam.

As they should in a multi-cultural multi religion secular society.

No doubt there are people who think that (their interpretation of) Sharia should be universally imposed, just as there will be people who think that way about Halakha and Canon and many other ideologies.

…Muslims are no different to the rest of us.  The vast majority either just want to be left alone or are happy to argue for the social changes they believe in through our political process.

I presume that most Muslims are similar to most non-Muslims in New Zealand, wanting to avoid having to do with criminal law.

In 2008, the then Archbishop of Canterbury gave a speech about how this inclusion of parts of Sharia in our mainstream legal structures was a good thing.  This was for two reasons.  First, Muslims in our society would be grateful of the availability of Sharia compliant alternatives that allow them to both follow their faith and fully participate in society.

And secondly, the rest of us might find that some of those Sharia compliant alternatives are good alternatives for us regardless of our faith (bring on more availability of interest free home loans!).

Or at least different mortgage structures to enable more people to buy their own houses.

It is a cheap (but frighteningly ubiquitous) trick for people to compare the best of their preferred system with the worst of someone else’s.

There will be some hard core Muslims and some hard core Christians who will probably always do this, though in New Zealand over the past week Christians, Muslims and other people of other religions have been coming together promoting the best of their faiths.

The truth, of course, is that the world is diverse.  Islam is no more inherently bad than Christianity.

There are plenty of examples of bad practitioners of Islam and bad practitioners of Christianity (and non religious bad practitioners), but the vast majority of religious and non religious practitioners want peace and harmony in their lives, and understand that this means living alongside 9and sometimes with) people with different faiths and practices.

I am not advocating for New Zealand to become an Islamic state, far from it.

No one is seriously advocating that. The only suggestions of that possibility are from scaremongerers.

New Zealand must remain a free and democratic country. But an essential component of that is pluralism.  We need not fear people expressing views merely because those views are drawn from Sharia.  Indeed, there are fundamental principles of Sharia to which we would all relate.

There’s a lot of overlap between fundamental principles of Sharia and fundamental principles of Canon and Halakha.

We should look for the best of that, and not fear the worst.