When I read Matthew Schmitz’s latest contribution to the sharia debate (called condescendingly “Anti-Sharia Laws Are Magic”), I thought: “That’s a blog by a man who’s never been in state court trying to void a contract provision on public-policy grounds.” It seems as if Mr. Schmitz (and to some extent Ramesh, if I’m reading him right) are arguing that anti-sharia laws are redundant because the kinds of contract provisions they would reach — provisions that would deprive a state resident of a constitutional right or liberty — would be unlawful anyway under common law. Maybe. Maybe not. And therein lies the problem. State common law provides exceedingly shaky protections against contractual oppression, and that’s at least partly by design. After all, freedom of contract is the default principle — to be overridden only in extreme circumstances.
The purpose of the anti-sharia legislation is to more precisely define those extreme circumstances, and as state-court litigators know, an on-point statute can cut through the fog of common law and provide clarity to judges who might otherwise be confused. So, rather than doing nothing, they do something quite important: provide judges with a standard they might otherwise miss.
As I said before, I don’t believe formalized sharia is an imminent threat to our Republic (and neither do the vast majority of anti-sharia activists; after all, the phrase “creeping sharia” hardly indicates an immediate, overwhelming threat but rather a slow and steady process), but individual litigants still deserve individual justice, and on that score these laws provide a statutory backstop to core American liberties.
While I support legislation like the Kansas statute at issue, focusing the debate entirely on such legislation and formalized sharia actually works to understate and distract from the extent of the sharia threat. For many Muslims, sharia compels certain behaviors regardless of the laws of the land. It’s not as if a radical Muslim will refrain from jihad or honor killings or polygamy or spouse abuse simply because it’s illegal. By understanding sharia we understand not just the formal, legal threats (which are modest at the moment, though still worth guarding against) but also the pressing and presently deadly threat presented by — for lack of a better term — “vigilante sharia,” the actions of individuals or small groups carrying out perceived Islamic legal imperatives in direct defiance of secular law.
In fact, this vigilante sharia often precedes (sometimes by many decades) the adoption of more formal sharia legal structures. There are entire regions in Southwest Asia where the inhabitants live in open defiance of the nominal laws of the land, and in other areas the legal recognition of sharia represents little more than civil government’s ratification of an order it’s by now virtually powerless to upend.
By the way, in my experience in Iraq, if you want to truly “alienate” our best Muslim allies, there’s no better way than to show them that you either don’t understand the radical threat or don’t have the will to confront it. After all, no one has suffered under sharia more than many of our Muslim allies. Expressions of civilizational doubt and weakness do not impress the allies that we truly need — those Muslims who stand and fight against our mutual enemy.