Why Shari’a is not like Sodium (and other things Bill Maher doesn't seem to get about that Pew poll)

In the Bill Maher vs. Ben Affleck throwdown, and the subsequent, painful Reza Aslan vs. Sam Harris tête-à-tête that has been playing out in the news and social media ever since, much has been made of the 2013 Pew Research Center poll of Muslims around the world on their religious views.   Maher and Harris are using the results of the poll to support the argument that Muslims believe dangerous ideas and that therefore Muslims are dangerous.  Maher and Harris point to the poll to show that, contrary to the claims of liberal apologists, it isn’t a minority of extremist bad actors on the fringes of the global Muslim community that ascribe to equally fringe extremist beliefs, but rather that the poll shows these beliefs are central, and ascribed to by the majority of Muslims.  As Maher put it, “Islam is the mother lode of bad ideas.”

As a side point, I strongly disagree.  I think it is fine to criticize ideas, but this isn't what they are doing.  They aren't saying "stoning adulterers is wrong."  No matter how much they claim not to be saying this, what they are saying is that all of the people who believe in Islam are bad/dangerous.  They are ignoring the fact that people can be totally inconsistent in their beliefs.  They can believe in religious freedom and believe in the death penalty for apostasy.  People are imperfect.  We are inconsistent.  We aren't always great religious adherents either.  I had plenty of cab drivers in Egypt with the zabiba, the forehead marking that identifies someone who prays so hard they develop a callous on their forehead from touching it to the ground so forcefully who tried to pick me up.  People are hypocrites.  Not only do we frequently hold inconsistent and competing beliefs in our hearts, our actions do not always follow on our beliefs, no matter how sincere those beliefs may be.  So to equate belief with actions, as Maher and Harris do, is absurd, and unfair (and discriminatory) because they are obviously applying that ridiculous standard only to Muslims. And to intentionally ignore the broad range of responses in the Pew poll's results (which proves Aslan's point that "Muslim countries" are a many and varied thing) and overgeneralize their discriminatory assumptions to all Muslims is bigoted and intentionally misleading.  Beyond my personal feelings on this point, though, it is also clear to me that Maher and Harris are reading more into the Pew poll results than the poll can really tell us.

I have argued elsewhere (okay, mostly on Facebook) that we cannot make sense of the Pew poll numbers without some national context.  Maher at one point declared that 90% of Egyptians thought that the death penalty was an appropriate punishment for leaving Islam. He seems to be rounding up the 86% which the poll found, but he didn’t read the fine print explaining this was 86% of the 74% of Egyptian Muslims who thought that Shari’a law should be enforced as the law of the land, so the actual number of Egyptian Muslims who the Pew poll found think death is the appropriate sanction for apostasy is closer to 64%.  Which is still shockingly high… 

Until you consider that an Egyptian can receive a death sentence for being one of more than 500 people arrested at the same protest where a single police officer died.  Or when you consider that an Egyptian can receive a 15 year prison sentence for breaking curfew.  Or 1 year in prison for insulting the president on your blog.  Or 7 years in prison for being a respected journalist for an international news outlet that the government claims is a member of the Muslim Brotherhood, an organization which, up until last June was the elected government.  So if these supposed “crimes” carry such heavy sentences, handed down by the legal system, isn’t it at least possible that the general Egyptian population at large, regardless of religious identification, might have a skewed idea of what kinds of crimes warrant serious punishment?  In order to make sense of that 64%, wouldn’t we have to know what crimes the entire Egyptian population think justify a death sentence?  And, to understand whether these beliefs are common only to Egypt’s Muslims, shouldn’t we also be asking Egypt’s Copts (the Christian minority) how they feel about the proper penalties for serious transgressions of their religious laws?  Only once we know how Egyptians at large would answer the polling questions, and how other religious groups in the same country would respond, can we understand the responses of Egypt’s Muslims in context.

These are criticisms about process, logic, and argument, which anyone listening to Maher and Harris can pick up on in their statements and go, “wait, that doesn’t sound right.”  Critics have already attacked the statistical conclusions Maher and Harris are drawing.  As Christopher Ingraham at Wonkblog rightly noted “Maher tries to speak in broad brushstrokes of a ‘global Islam,’ but Pew's data show that such a thing doesn't really exist.”  However, the information the Pew poll presents about Shari’a law may be a little more difficult for Western listeners to parse.  It would be easy enough for a non-Muslim reader to look at the Pew results and conclude that the majority of Muslims the world over favors the implementation of Shari’a law either as the official law of the land, or in at least some part of their country’s legal system.  It is clear that a striking majority of Muslims in countries that seem to a non-Muslim viewer as otherwise modern and secular, with strong Western ties, believe that family law and property disputes should be decided in religious courts (94% of Muslims in Egypt, for example, and 93% in Jordan for example).

The Pew poll does an excellent job of breaking out a number of viewpoints, not only the question of whether Shari’a law could apply only to certain areas of the law (and also considering whether these areas are already decided by religious courts in the countries surveyed), but also querying respondents as to whether Shari’a, if made the official law of the land, should be so enforced as to Muslims only (during Muhammad’s rule of Medina, his constitution afforded non-Muslim “people of the book” the right to practice their own religion in return for political loyalty and taxes).  However, what the poll cannot show is what respondents mean when they hear “Shari’a.” 

There is actually tremendous range in responses in the poll as to whether Shari’a should have single interpretation or should be open to multiple interpretations, which already shows that it is interpreted in numerous ways.  For example, in Afghanistan, where 99% of the Muslims surveyed favor making Shari’a the official law of the land, 29% believe Shari’a should be open to multiple interpretations.  Think about that for a minute.  In the context of what has been said recently following the Maher/Affleck discussion (and what is always said whenever Shari’a law comes up), that is some shocking stuff.  In a country where almost all of the Muslim population wants Shari’a law imposed, almost a third think that can mean different things.  And that is just within one (conservative) country. 

I think Maher and Harris would have us believe that “Shari’a” is one monolithic (obviously bad) thing.  Shari’a is, from what Maher said on his show, burkhas, stoning adulterers and apostates and killing cartoonists.  Whether the average American necessarily believes that Shari’a is those particular things, I think that even an educated listener to Maher’s show or a casual reader of the news on this topic might reasonably believe that the Qur’an and Shari’a are one in the same, or that all Islamic law comes from the Qur’an.  We might think that whatever differences there are in Qur’anic interpretation are little grammatical tweaks, similar to the variances in different versions of the Bible, like how 1 Corinthians 13:4-7 is “Love is patient, love is kind. It does not envy, it does not boast, it is not proud,” in the New International Version and “Charity suffereth long, and is kind; charity envieth not; charity vaunteth not itself, is not puffed up,” in the King James Version.

I think a reader not particularly familiar with Shari’a, or familiar only with Christian religious doctrinal interpretation, might be surprised at the range and complexity of Islamic law sources and interpretive frameworks.  Shari’a isn’t a single monolithic thing.  Shari’a is not like sodium (cue the well-deserved stream of annoyed messages from chemists about how complicated sodium is).  It cannot be expressed in a stable chemical formula, or written in a single text, crystallized in one hardened, immutable set of ideas.  It isn’t the same the same from country to country, language to language, community to community, or mind to mind.

Shari’a is divided into primary and secondary sources, afforded varying levels of authority.  The Qur’an is considered (as you can see from the Pew poll results) by most Muslims to be the revealed word of God and is believed to have been transmitted to Muhammad by the Archangel Gabriel over roughly 22 years.  The verses within the Qur’an amounting to legal injunctions (and it is debated exactly which and how many of these there are) form the primary source of Shari’a, which means “right way” or “path.”  These verses categorize which behavior is compulsory, forbidden, discouraged, permitted, and rewarded.  In addition to these specific legal injunctions, many verses of the Qur’an outline general principles, which have been interpreted by jurists in subsequent centuries.

The Sunnah are collections of the recorded sayings (hadith) and traditions of the Prophet Mohammed during his lifetime to explain the legal injunctions set out in the Qur’an.  The Sunnah are secondary in authority to the Qur’an because they are the Prophet’s take on it, and not the literal word of God.  This means that any contradiction is resolved in favor of the Qur’an.  If neither the Qur’an, nor the hadith explain a verse, the writings of the companions of the Prophet, the Sahaba, which will often contain explanations of the traditions of the Prophet, can be consulted for guidance in interpreting the Qur’an.

It took around 300 years after Muhammad’s death for the Sunnah to be completed.  Some of the hadith that are included in some versions are omitted from others.  To resolve inconsistencies, scholars have developed a tradition wherein every collection of hadith has been rounded up and the authenticity of each saying is assessed or ranked by the number of times it appears in all the collections.  Certain compilers get reputations as being more reputable, such as Imam Bukhari and Imam Muslim, but if a hadith appears only once, even if it is in one of their compilations, a contradictory hadith will be given greater authority if it appears with greater frequency.

There are also a number of secondary sources of Shari’a.  Ijtihad (“effort” which comes from the same root word “to struggle” that jihad comes from) is the effort of early Islamic jurists to use their own reasoning and judgment to develop the interpretive framework that formed Shari’a in the ninth and tenth centuries.  Most scholars agree that legal precedents were conclusively established between the tenth and twelfth centuries.  Ijtihad was permitted up until the end of the twelfth century, at which point a consensus had developed among scholars that it should be disallowed, and major areas of religious law considered settled by that time, though there is no actual textual prohibition against its continued practice.

Ijma, or consensus, is another secondary source of Shari’a.  This is based on the hadith of Muhammad that “My ummah will never agree upon an error,” where ummah means the community of believers.  However, there is a great difference of opinion as to who the “community” is that is referred to in the hadith.  Different schools of jurisprudence define this community to refer to the first generations of Muslims, the first three generations, the community of Muslim jurists and scholars, just scholars, or the entire Muslim community, including laymen.  So you can imagine the different schools of jurisprudence will accept different ijma as binding.

Qiyas, or analogy, the third secondary source of Shari’a, is the legal principle in which a logical conclusion is deduced from a law set out in the Qur’an, Sunnah or ijma.  An example of a legal injunction derived through qiyas would be where verses of the Qur'an forbid the taking of khamr, thought to be a kind of wine, and qiyas has expanded the prohibition to the use of marijuana and other intoxicants as well.

Confused yet?  Well, numerous as the sources of Shari’a may be, the typical man on the street, who may not be able to read and might not have completed a formal education, will not understand it as like “oh, I’m not supposed to smoke pot because a well-reputed trained jurist applied analogical deduction to a Qur'anic prohibition about wine.”  He will draw his understanding of Shari’a from oral traditions, community discussions, and the opinions of local scholars and judges whom he respects.  Shari’a is, to him, what his imam and other learned men tell him it means.

So who are these learned men?  Specially trained Islamic jurists expand and elaborate on and interpret Shari’a (the sources set out above) and make rulings (fatwa) on legal questions that come before them to be decided based on Islamic law.  They use fiqh (Islamic jurisprudence), which is the tradition of jurisprudence of human understanding of Shari’a, or how it has been interpreted over the centuries to deal with the daily lives of believers (moral and social problems).  Fiqh, because it represents human understanding and not divine revelation, and is not therefore infallible, makes up part of Islamic law, but is not itself technically Shari’a.

Islamic jurists are divided among a number of schools of fiqh, which accept different hadith and give different authority to qiyas when applying Shari’a to modern problems. Since, as described above, these (hadith and qiyas) are fundamental to determining the content of Shari’a, you can see how definitive the school of jurisprudence would be to how the practical legal interpretation of Islamic law will shake out.

The schools of fiqh (Islamic jurisprudence) are also split among Sunni and Shi’a branches of Islam.  The Sunni schools are Hanbali (Saudi Arabia), Hanafi (Turkey, Balkans, Central Asia, India, China, Egypt), Maliki (North and West Africa, Persian Gulf), Shafi’i (Indonesia, Malaysia, Egypt, East Africa, Yemen, Somalia, southern India), and Zahiri (minorities in Morocco and Pakistan). The Shi’a schools are Ja’fari (Iran, Iraq, Lebanon, Azerbaijan, Bahrain, etc.), Zaydi, and Ibadi (Oman).

So the content of Shari’a is already subject to the same difficulties affecting religious texts compiled by dozens of authors over centuries.  The sayings and traditions of the Prophet are then weighed against the text of the Qur’an to separate out contradictory hadith.  The Sunnah is then filtered through the system of ranking hadith by frequency of occurrence and reputation of the compilation in which it appears.  Various schools of jurisprudence (which do not conform strictly to modern national or ethnic boundaries) accept some hadith and omit others, and give some greater or lesser weight than other schools.  Some schools give greater weight to opinions reached through the reasoning of early jurists, by consensus, or conclusions drawn through analogical reasoning (allowing for easier application to modern day situation).  The different schools of jurisprudence each have their own traditions of interpreting Shari’a to set out the rules for the daily lives of their communities of believers. 

Aaaand, then local imams and guys on the corner who have had a few years of school who may or may not be actual legal scholars re-interpret the interpretations of the trained jurists for their neighbors who then tell the Pew Research Center that they want Shari’a to be the official law of the land.  When Bill Maher claims to be able to tell us what this means, I promise you, he is full of it.