Wednesday, June 17, 2009

Evan's Corner: The Approach of the Halakah and Sharia to Contemporary Legal Issues

Briefing in the United States Library of Congress
Sponsored by
The Law Library of Congress and the African and Middle Eastern Division of the Library of Congress


Rabbi Shlomo Yaffe-Dean of the Institute of American and Talmudic Law
Issam Michael Saliba-Legal Specialist of Islamic Law at the Law Library of Congress


Recently, the Law Library of Congress and the African and Middle Eastern Division of the Library of Congress presented a discussion exploring the utility of “religious” legal systems. The term “religious law” causes much consternation and bristling from those who see the civic and spiritual worlds as fundamentally separate. In the West, people often imagine they have more thoroughly separated “Church” and “State,” and that a law reflecting Judeo-Christian values is not inherently religious. The view of Western legal systems as “untainted” by religion reflects an attitude that more overtly religious legal systems are less capable of handling modern legal problems. Rabbi Shlomo Yaffe and Issam Michael Salibal, made convincing arguments that fundamentally religious legal systems are, in many cases, well-equipped to face contemporary legal issues.

Rabbi Yaffe began by giving a brief history of the evolution of Talmudic law. The Rabbi explained that the basis for all Judaic law are the five books of Moses, which are viewed as immutable as they are supposed to be divine in origin. However, within the evolution of Judaic law, the Rabbi explained that these scriptures are more like a “table of contents” than a list of rules. The rabbi went so far as to say that if one “tries to live based on scripture” the way he or she lived “would not be Judaism.” One of the main criticisms of any legal system based in scripture is that it must be immovable and inflexible. The Rabbi illustrated that this is not true. The scripture cannot change, but the interpretation of the scripture is very much a continuous argument that Judaic scholars are able to plot from antiquity to modern day. Within the world of Judaic legal scholars there are consensus on some points, but on others there are minority and majority positions.

The Rabbi used a scriptural example to illustrate his point further. The Rabbi offered Exodus 21:22 “And should men quarrel and hit a pregnant woman, and she miscarries but there is no fatality, he shall surely be punished, when the woman’s husband makes demands of him, and he shall give restitution according to the judges.” This passage is at the center of modern Judaic scholars positions on abortion. In their view, the phrase “no fatality” implies that if the woman does not die, then no human life has been taken. Scholars also note that the killing of the unborn child is still a crime according to the Talmud, but it is not equivalent to murder. The Rabbi stressed that on countless modern issues: from assisted suicide to artificial intelligence, the scripture offers relevant instruction. Furthermore, this instruction, far from stifling progress, fosters a vigorous scholarly discussion regarding specific modern interpretations. The Rabbi argued that through this process, the Judaic legal system is every bit as “complicated,” and “sophisticated” as the American one.

While Rabbi Yaffe expressed that there is no distinction in Judaism between civil and religious life, Issam Michael Salibal noted that there is such a distinction in Islamic law. The Islamic schools of Law, derived originally from the Koran and Hadith, now rely upon legally established precedents. In other words, unlike in Judaic law, Muslim lawmakers cannot refer to the original religious texts, but instead must consult the decisions of authoritative Muslim jurists. This tradition is not contradictory to other legal systems and may have inspired many elements of common and civic law. Many of the institutions and schools within Islamic law are separate entities from other political or religious authorities, and their responsibility is to their legal tradition, not to scripture or ruler.

Salibal pointed out that while critics often harp on the perceived shortcomings of Islamic law, they never try to engage the Islamic legal system. For example, Salibal claimed that Sharia “clearly states” that Christians have the right to practice their religion under Islamic law. If there are political or religious authorities, stifling this freedom in the name of Islam, they can be challenged within the Islamic legal system. Salibal also discussed more controversial points of Islamic law. He pointed out that while there are precedents for harsh punishments, such as stonings, the law reserves these punishments for those who are “unrepentant.” In Salibal’s view, this leaves room for victims to challenge their punishment, again within the system of Islamic law.

Both speakers did an excellent job at explaining, and in some cases defending, these two “religious” legal systems. On difficult contemporary issues, such as abortion and cloning, these systems offered no easy answers or solutions. Then again, neither does the Christian one.

By Evan Barrett

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