Republican presidential candidate Ben Carson speaks in town hall meeting in Baltimore, Thursday May 7, 2015.
Dr. Ben Carson’s statement that Islam is “inconsistent with the values and principles of America” exhilarated the GOP’s conservative base while infuriating American Muslims and advocates of inter-faith outreach. The former commended Carson for taking a forthright stand against the supposed menace of “creeping Sharia”; the latter condemned him for imposing an unconstitutional “religious test” for office by insisting that a Muslim candidate’s religious faith would disqualify him for the presidency.
Carson’s defenders display little understanding of Islam’s history or teachings. Many of his detractors misapply Article IV, clause three of the U.S. Constitution by insisting that it forbids voters to take into account the religious convictions of a candidate for public office. Both sides are hostage to a tragic misunderstanding of the role of the president as prescribed by the Constitution.
Treating those misconceptions in reverse order, we begin with Dr. Carson’s statement that it would be unwise to “put a Muslim in charge of this nation.” The presidential job description found in Article III of the U.S. Constitution saying nothing about placing the president, or any other official, “in charge” of the country.
Although the contemporary presidency is garlanded with the trappings of an imperial monarchy, the office as originally designed was much more modest. Rather than being a ruler, the president is an executive; he or she heads one branch of the federal government, which under the constitutional scheme is supposed to be confined to a very limited role. Americans who are not employees of the executive branch or enlisted in the military are not subject to the president’s authority, and authority over the military is shared by the executive and legislative branches.
Article VI, clause three of the Constitution dictates that “no religious test shall ever be required as a qualification for any office or public trust under the United States.” Voters who express a religious-based preference for a candidate, or a religion-inspired antipathy toward one, are not violating that principle. While Dr. Carson and his supporters have been widely derided as bigots for saying they would not support a Muslim candidate, many progressive voters are similarly disinclined to support candidates whose religious views dictate opposition to abortion or same-sex marriage. Neither of those approaches would impose an official “religious test” as defined by the Constitution.
By insisting that Islam is innately incompatible with constitutional values, Dr. Carson became the first serious presidential contender to give voice to a view that has percolated up from the GOP grassroots, where fear of a potential American Caliphate is widespread. One common refrain heard within that population is that Islam is not a religion, but rather a subversive and totalitarian political ideology “with a patina of religion,” as former Reagan administration official Frank Gaffney insists.
TownHall.com columnist Jack Kerwick, defending Carson, accused his opponents of engaging in an ironic form of bigotry by “suggesting that Islam and the American Constitutional tradition are compatible, [because] in suggesting that there is no difference between being a good Muslim and being a good American, they have chosen to either ignore or deny what Muslims have been saying for 1400 years.”
Writing with much greater certitude than knowledge, Kerwick insists that in Islam there is no “separation of `Mosque and State” because “the will of Allah and that of the State are, or at least should be, one and the same.”
“In a word, both in theory and practice, both scripturally and historically, Islam has demanded theocracy,” he continues. “For governments constituted any other way, the devout, practicing Muslim—the Muslim believer who is true to an accurate understanding of his own faith tradition—must have contempt. Islam … doesn’t just prefer that the whole world observe its Sharia law; it insists upon it: The pious Muslim has a duty to Allah to see to it that Sharia law becomes the law of planet Earth.”
These claims must be perplexing to Will Coley, an observant Muslim who serves as national director of Muslims4Liberty, a libertarian organization promoting “charity, voluntaryism,” and mutual respect among people of all backgrounds. Rather than seeking a centralized, despotic theocratic state, Coley maintains, Islam in its original manifestation promoted a decentralized social order in which the believer enjoys unmediated access to God, and all men and institutions are equal before the law.
From Coley’s perspective, sharia law does not require universal submission to Muslim rule, but rather dictates that Muslims are to respect the liberties of those who follow a different faith.
Coley notes that the third qa’ida (maxim) of the Qawaid al fiqhiyya – a guide to Islamic jurisprudence – states that “non-Muslims are not required by law to follow Islamic religious or social standards,” such as proscriptions against alcohol consumption or restrictions on sexual conduct. That maxim is based on a statement attributed to Mohammed – La darara wa la dirar, “Harm shall not be inflicted nor reciprocated.” This is cognate with both the “non-aggression principle” of libertarianism and the New Testament exhortation for Christians to practice forbearance in the face of injury.
Over the centuries, Islamic legal scholars have fleshed out the five great maxims of Islamic law, devising common tenets and applications that should be recognized by those who cherish American due process and property rights protections. Two of them should be immediately recognizable to people familiar with the writings of 19th century libertarian scholar Frederic Bastiat: “When it is forbidden to take a thing it is also forbidden to give it,” and “When it is forbidden to perform an act it is also forbidden to request its performance.”
In his masterful essay The Law, Bastiat articulated the same principle in his famous observation that “since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.”
Bastiat, a Christian statesman, agreed with Islamic legal scholars that all human institutions – including the political state – are subject to natural law with respect to the protection of the individual and his or her property rights. Regrettably, in both Christian and Muslim history that principle has been honored more in the breach than in the observance, as the Bard would put the matter.
The maxims of Islamic law enjoin respect for contracts and strict application of their written provisions: “In principles, word shall be construed according to their real meaning…. Where there is a text there is no room for interpretation.” However, where application of its principles are concerned, Islamic law allows for adaptation: “It is undeniable that rules of law vary with change in time,” in much the same way that western common law has outgrown its medieval elements.
Professor John Makdisi of St. Thomas University School of Law believes that English common law, from which the American constitutional system descended, was influenced in significant ways by Islamic law. According to Mikdisi, there is solid if circumstantial historical evidence that concepts such as trial by jury, protections against self-incrimination and the use of hearsay, and the use of written contracts to define property claims were transplanted “from Islam through Sicily to Norman England in the twelfth century.”
Prior to the twelfth century, explains legal commentator Manlio Lima, English jurisprudence operated much like the court depicted in the classic Saturday Night Live sketch “Theodoric of York: Medieval Judge,” in which the titular character (played by Steve Martin) employed brutal and superstitious methods of inquiry and inflicted draconian punishments.
“Well into the era of their conquests of England (from the Anglo Saxons) an Sicily (from the Fatimid Arabs) in the 1060s, the Normans still employed `trial by ordeal’ to settle disputes,” observes Lima. “This holdover from their Viking forebears subjected a suspected criminal to a physical test, his survival of (for example) attempted drowning by full immersion in water `proving’ a favorable decision by God. For personal disputes, `trial by combat’ pitted one man against another in a mortal struggle to decide claims over property – be it land, a horse, or even a woman. In such circumstances, from which our world `trial’ comes, only the physically strong or martially able could claim a legal remedy, while females were excluded altogether.”
At a time when church and state seemed inseparably fused and individual liberty was practically unknown in the West, Islamic civilization was “virtually stateless,” pointed out George C. Leef in The Freeman. People living in our state-dominated era would be astounded to learn “how little government did in the ancient Islamic world,” he elaborates. “Schools, hospitals, and even roads were built by private foundations.”
Free of the heavy hand of the authoritarian state, “Muslims advanced the sciences and applied new technologies. They developed the vital mathematical concepts of zero and spherical trigonometry, and put them to work in architecture and navigation.”
In her book Islam and the Discovery of Freedom, libertarian author Rose Wilder Lane points out that while Europeans of the era blamed demonic possession for diseases and other physical afflictions, Muslims in the tenth century “were using the entire American medical pharmacopeia of today,” and Arab surgeons of that period employed local anesthesia in their procedures.
As a world-class neurosurgeon, Dr. Carson is an heir to this element of the Islamic intellectual legacy. Similar debts are owed by mathematicians, philosophers, and scholars in many other fields.
“This idea that Islam or sharia are somehow incompatible with western or Christian values shows a gross lack of objective study of history,” insists Will Coley of Muslims4Liberty. “Most people don’t realize that the commentaries on Aristotle by Islamic scholar ibn Rushd [the Spanish polymath known in the West by his Latinized name, Averroes] were required reading in the first university in Europe. Without contributions to the evolution of western thought, by the likes of ibn Rushd, ibn Tufayl, and al Qaraafi, there is no renaissance, no enlightenment, no constitution.”
The precipitous decline of Islamic civilization, Coley contends, reflects the fact that “Muslims stopped worshiping Allah and started worshiping the state” during the same period – the 12th to 14th centuries – that many of their most commendable principles began to infiltrate the West.
Coley doesn’t profess to “find some trace of Islam in everything,” nor does he pretend that John Locke or Thomas Jefferson consulted “a Qur’an or book of Islamic law” when they composed the Second Treatise or the Declaration of Independence. His chief interest lies in seeking “to reintroduce fellow Muslims to their forgotten legacy of liberty,” and encouraging them to “reclaim their place as upholders of liberty and freedom, and to assert this by practicing these values in our communities, mosques, and our own lives.”
Tragically, Dr. Carson and a large segment of the conservative movement would prefer to demonize Muslims as a collective, rather than encouraging Muslims to embrace the liberty-affirming aspects of their religious legacy.