Western Law, Islamic Law and the Ordering of Society
What's at stake in the struggle with Arab-Muslim terrorists

We really cannot sensibly speak of Arab culture and Muslim culture as if they are two separate things. Of course there are differences among Arab peoples, but the differences are far outweighed by the force of Islamic uniformity. The differences among sects of Arab Islam are quite minor compared to the differences of Christian denominations, and are almost exclusively differences of practice and emphasis rather than actual theology. Cultural differences are mostly remnants of tribal traditions and also tend to be overshadowed by Islam. "Arab" and "Islam" are yin and yang, heads and tails of the same coin. This is not the case in non-Arab lands, where Islam came relatively late, and where distinct civilizations already existed with well-developed world views in place before the arrival of Islam, as in southeast Asia for example.

(Egypt also had a well-developed civilization long before Islam arrived on the scene, of course, and Egyptians generally have a much stronger concept of national citizenship, as the West understands citizenship, than other Arabs.)

The great divide between Arab Islamism and the West is found in the fact that the secular and religious are indistinguishable under Arab Islam, at least formally, if not always in practice. But the distinction between secular and religious are essential for the way the West works and for the freedoms Westerners enjoy.

Nowhere is this difference between Arab-Islamism more profound than in the concept of law and society.

Western law, despite its adversarial nature, is structured to ensure that contending parties can have their differences accommodated rather than eliminated. That is why compromise is such an important part of Western law and politics. In fact, the present form of the American Congress resulted from the Great Compromise of the Constitutional Convention.

Western religion and economic development have determined this facet of Western culture. Freedom, as a category of understanding the human condition, has always been a central characteristic of Jewish and Christian faiths (with varying emphases among different theologians, to be sure). This metaphysical way of thinking about human existence in turn restrained the formation of unbridled, unrestrained political power among the West's political rulers; even the most dictatorial Western monarch did not approach the ruthlessness and absolutism of kings and emperors in most of the rest of the world.

(The ancient histories record that when the Persian king, Darius, marched his army to invade Greece, he and his nobles were hosted en route by a wealthy landowner in Asia Minor near the Peloponessus. The landowner almost bankrupted himself to host the Great King in the most extravagant way. Afterward, he fell on his face to beg Darius to spare the eldest of his six sons from military duty. Enraged, Darius shouted that he and all others were merely slaves of the Great King, and that he had the right to demand of the landowner anything he wished, even his wife and life itself. Darius ordered the eldest son to be killed, cut in two and the body parts to be exhibited along the army's route of march as a warning against insubordination.)

I explained in my essay, Historic Economic Development of the Middle East and the West why the West developed multiple centers of economic might and why the Middle East did not, and what the salutary effects on Western politics has been. From these developments sprang new ways of thinking about the relationship of man to the state. The Enlightenment philosophers, such as Locke, Rousseau and others, brought intellectual rigor to political philosophy that it had lacked before.

Specifically, they developed the idea of citizenship. Westerners (meaning Europeans and later, Americans) began to think of themselves as having a special identity that was defined in space and time. Within that geographical space non-arbitrary law permitted greater freedoms than before, because differences could be negotiated and similarities assumed. Certainly the citizens of Europe before the American Revolution were not politically free in the sense that we think of freedom. But at the time the distinction between the authority of the secular state and the authority of religious leaders became well defined. Civil law ceased to make religious demands on its subjects. The separation of church and state was also driven by the fact that Christianity was beset by denominationalism and schisms that were deeper than any in the political arena. Theologians and clerics tend to be much less accommodating than politicians. (After all, successful politicians, even monarchs, are natural compromisers, but theologians usually are not.)

(See my essays, Historical Development of the Separation of Church and State in the West - Part 1 and Part 2. They explain two important events that separated the secular and the spiritual.)

The result was that Christian leaders and political leaders came to have separate arena of responsibility and authority. This process, to be sure, took centuries. Its end was not certain until the Protestant Reformation, but then it was probably inevitable. In fact, the term “Protestant” was not at first said about religious reformers protesting certain practices of the Catholic Church, but to refer to some German princes who politically allied together to cast off Catholic restraints on their political power. Martin Luther, the chief figure of the Magisterial Reformation on the continent, developed a theology of “Two Kingdoms,” in which he delineated the roles of political and spiritual authority. He held them to be complementary, not competitive, but with separate responsibilities and authority.

By the time of the American revolution, the separation of church and state was nearly complete. So legally marginalized from the regulation of daily civil affairs was religion that when speaking of the canons of the faith, one had to say, “church law” to distinguish it from secular law. The religious affiliation of a society’s members did not have serious sway over their treatment at the bar. The common object of loyalty of the members was not a religion, but the nation. The law served to bind the citizens together into a common political heritage that protected the rights of the citizens. None of this was absolutely true anywhere, and the effect was not uniform across all the nations of the West, but it was sufficiently true everywhere in the West to make a distinctive kind of society and politics replicated nowhere else on earth, save where Westerners proselytized it.

However, in the Arab-Islamic states, this kind of arrangement is not true to a meaningful degree. Arab law is Islamic law, Sharia, and it does not recognize that there could be any law apart from Islam. Nor is Islamic law territorially limited as is Western law. Sharia is universal and binds all Muslims everywhere. Sharia admits no theoretical limits in regulating human affairs and denies that secular law can limit it. Hence, a Muslim cleric in Holland recently called upon Muslims there to rebel against Dutch authority, and some Muslim clerics in Britain declared that no British Muslim, even if an actual British subject, could in faith obey British law when it conflicted with Sharia, and that British Muslims in the armed forces were obligated to mutiny rather than fight in Afghanistan.

In Sharia, the state is not an independent object of loyalty. Submission is first obligated to Allah and then to individuals or groups depending on how closely one if affiliated or related with them. Moreover, Sharia is verbal, not written. Sharia rulings are made as “case law,” applying the teachings of the Quran to particular situations. Sharia can be, and usually is, claimed to be identical to the will of Allah. To disobey the edicts of the Sharia is to risk the wrath of Allah.

Sharia thus makes no accommodation of differences as does Western law, since the discipline of the Quran is binding upon all people everywhere, including non-Muslims. But creativity and invention result from differences, not similarities – thus, Arab lands have been marked by intellectual stagnation and non-creativity for several hundred years. Such is not a necessary state of affairs under Islam because for the first few hundred years of Islam sway over what is now modern Syria, Lebanon, Israel and Jordan, at least, a very high degree of intellectualism and refined civilization was achieved. But apparently the Muslims of those days and places were not near the fundamentalists that hold power in modern Arab countries.

Western law intends to keep civil peace over all the territory where it holds sway. Personal religious beliefs are not relevant to the workings of the law, because religious beliefs are not the point of the law. In Islam, though, religion is the whole point of the law. Compromise is not a feature of Sharia because you cannot compromise with Allah; you can only submit or disobey. When, but not until, everyone submits to Allah, there will be peace, but until then conflict is both inevitable and even desirable between the submissive and the non-submissive (the infidels - that's you and me).

When one’s world view thus shuts out compromise, negotiation as a means of settling disputes is ruled out. After all, the enemy of Islam is an enemy of Allah, which no one has the right to be. Sharia thus denies that the another way of ordering society can possibly be valid. The Western way of life inherently permits its citizens to accept or reject Allah, but such a freedom is impermissible on its face. So we have no right to maintain our system, we only have, at the moment, the power to maintain it.

Entering negotiation with infidels only admits of weakness; if one is stronger, one simply prevails. Therefore negotiation is done only when there is no alternative, and then only to bide time for resumption of the struggle later.

Now, what exactly to make of all this I am not sure. But I do think that we really, really need to think outside the box about our present struggle. I am increasingly concluding that long-term peaceful co-existence between Arabysmalia and the West is not possible as each side is presently ordered. Wrenching social, legal and perhaps religious transformations of the most fundamental kind are in order for one of us.

And it had better be them.