There has been much discussion about the possibility of incorporating Sharia law into the jurisprudence of the United States, much as some Sharia law has been introduced to English jurisprudence by unthinking multiculturalists who believe that this would be the politically correct and oh, so tolerant thing to do.
Such discussion has also been motivated by a few legal decisions made by judges in the United States that have recognized Islamic law as being binding upon Muslim individuals acting within the United States, even when such actions violate American state and/or federal laws. One of the most notorious of these is the decision of a New Jersey judge to acquit a man who raped his wife because his Muslim religion allows such behavior, even though the New Jersey criminal code forbids it. We can all be thankful that such an idiotic decision--one that does not take into account the individual rights that are basis of American criminal and civil law--was overturned by a higher court. Freedom to practice one's religion does not come with the license to violate the rights of another person.
In most of the discussions I have seen, the majority of participants tend to oppose the recognition of Sharia law--or for that matter, any foreign jurisprudence--by American courts. However, many of the arguments are based in a rivalry of religious laws--the "Judeo-Christian" code as opposed to the Islamic code. Although this argument is correct in that there is a large difference between the two, it is limited. A look at the different ideas about law that have formed these two very different legal traditions shows why we in the West ought to be very wary of tolerating Sharia within our legal tradition. What follows is an expanded version of a a comment I made to one of the internet discussions about this issue.
Although American jurisprudence owes much to the Jewish and Christian concept of the rule of law, and is based on the development of this concept through Western religious thought, it is in its own self, different than religious law, and its jurisdiction supersedes the rules and dogmas of any specific sect or religion. Specifically, American law is based on the concept of individual rights that are understood to be bequeathed to each person by his or her Creator--Nature's God, as Jefferson put it--and are therefore fundamental to the being of the individual as an individual. As such, our legal tradition transcends the laws of any religion, and applies to all individuals. It is profoundly secular.
Although it is often called a "Western Religion" because it is derived in part from Judaism and Christianity, Islam did not partake in the unique melding of Greek ideas with the Mosaic ethical and legal tradition that came through Christianity to define the Western intellectual tradition. Whereas Christianity has, from its inception, differentiated between what belongs to God and what belongs to Caesar, carving out for Christian Europeans a secular realm, the Islamic Sharia law makes no such differentiation. Islam claims all aspects of life. It would be very difficult indeed for Islam as it is presently understood and practiced to allow for a separation of religious and state institutions.
Although Christianity had its internecine wars over doctrine--and the concomitant attempts to apply them by force--they were resolved relatively early with the division between the Eastern and Western Roman Empire. Later wars between the Christian church and state were a matter of arguments that turned violent about where exactly the division is between what belongs to God and what belongs to Caesar. Specifically, these struggles were about how the material benefits that come with power would be divided between the church and the state. As Western religious thought developed in Europe, the Reformation introduced ideas that placed more value on the ordinary individual and his choices and actions than Christianity had previously, and this created an evolution that from the scholastic idea of natural law to the enlightenment ideal of individual rights. (For a more thorough discussion of this evolution see Libertarian Ethics: Natural Law and Natural Rights). The consistent application of the ideal that each individual has rights by his or her very nature as a human being eventually required that one's religious expression becomes a matter of individual conscience and choice, and that it cannot be coerced by the state. The fullest expression of the idea of natural rights thus far has been through the American concept of republican government, which ideally limits government and its enumerated duties to the protection of the unenumerated rights of individuals. That this ideal has not been reached does not detract from the power and nobility of the idea and the admirable attempt to express it through American jurisprudence.
Because Islam did not participate in the fusion of Greek and Jewish/Christian ideas, it is not really Western in character. Within Islam, there is no differentiation between what belongs to God and what belongs to Caesar, and thus there is no possibility of a separation between religious and secular institutions. The concept does not exist. At the very beginning of Islam Online, this is boldly stated:
First of all, it is to be noted that Islam, being Allah’s final message to humanity, is a comprehensive system dealing with all spheres of life; it is a state and a religion, or government and a nation; it is a morality and power, or mercy and justice; it is a culture and a law or knowledge and jurisprudence; it is material and wealth, or gain and prosperity; it is Jihad and a call, or army and a cause and finally, it is true belief and worship.
Therefore, there is no way that Islam can tolerate a law that supersedes its jurisdiction, as American secular jurisprudence does over the specific religious laws and doctrines of all who live in the United States and its territories. Furthermore, Islam does not recognize the sanctity of the individual, the rule of reason in matters of individual conscience, nor individual rights. Under Sharia, there is no equality before the law, and some are not even recognized as persons with their own rights (women and non-believers, for example).
It is always possible that Islam could be reformed from within, in the same way that Christianity was reformed. But Christianity had that one statement in its scriptures that allowed such reformation. That is the statement about the differentiation between the realm of the Christian God and that of Caesar. The scripture of Islam does not make any such statement, and therefore such a reformation would require an intellectual leap based not on its own tradition, but solely upon the example of the West. Currently, few Muslims seem willing or able to create such a reformation. Therefore we should be very wary of any claim that Islam is a religion of peace rather than a religion of the sword. In Islamic understanding, only those who submit to Allah are accorded membership in the world of peace, and all others live within the world of strife, to be conquered by the sword.
We of the West have every right and reason to defend our culture, and our desire to live by its ideas and values. We have every right to demand that those who choose to live among us abide by our laws. We need not impose our laws on others living elsewhere, but should they attempt to impose theirs upon us by force, we need to be ready to repel them. Our is a unique heritage, one that has been built over centuries of thought and tears. It is a culture that has as its basis and ideal the hard-won idea that individual human beings have unalienable rights derived from nature and nature's God, and that no prophet or priest, king or state can remove them from us. That is an idea well worth defending with our very lives. It is the basis of human freedom.