Thomas wrote:Noddy24 wrote:Quote:That hardly means that everyone gets to do anything he wants to do. Care to hazard a guess whether the founding fathers intended the Constitution to legalize gay marriage?
The Founding Fathers also denied the vote to women and blacks. The Founding Fathers created a Constitution that could change with the times.
Now Shari'a....Shari'a is eternal.
(1) The Founding Fathers created a constitution that left this question for the states to decide.
(2) The Founding Fathers created a constitution that could be amended. But they did not create a constitution that compels the states to issue marriage licenses to same sex couples.
(3) The Founding Fathers, perhaps without wanting to, created a constituton that was subsequently reinterpreted by the federal courts -- just as the Sharia was. It is my understanding that the Sharia, as enforced in practice, was a lot more liberal 600 years ago than it is now.
Leaving aside your dubious speculations about the intent of the founders with regard to judicial applications of the law, your remarks about Sha'ria are surprisingly accurate. (Surprising, because westerners often know little of Muslim history.) Universities were first founded in Muslim areas (nation is not an appropriate term for the era) to decide upon the legitimacy of claims of the meaning of the Quran and of the
hadith. The
hadith are putative actions and statements of the Prophet and the Companions. These were considered the only bases for the law in Islam. For an alleged
hadith to be accepted for incorporation into the law, it had first to be accepted as genuine in the consensus of Muslim scholars who devoted their lives to the study of the Quran and accounts of the lives of the Prophet and the Companions. Thereafter, the meaning of a
sura or of an
hadith as regards the law was once again determined by a consensus of scholars. The first Caliphs were all Companions, and gradually, the sense of what constituted the
hadith was expanded to include actions or statements attributed to the beginning of the Caliphate--but only to the Orthodox Caliphs, those who were the companions of the Prophet.
Over time, however, the system tended to break down. The moral force in a Muslim community is the
ulama. An
alim is a righteous man, and that is in the consensus judgment of the community. In the aggregate, the
ulama had an informal power to apply their sense of Islamic righteousness to their own communities. Islam, as is the case with most if not all major religions, began to fragment rather quickly. Ali, the cousin and son-in-law of the Prophet, was the founder of Shi'ism, which itself fragmented rather rapidly. Shi'ites spread east (Persian and beyond) and west (principally to Egypt), and the Shi'ites in Egypt formed yet another prominent sect, the Fatimids, referring to Fatima, daughter of the Prophet and wife of Ali. The Fatamids tended to assert their independence by defiance of the Caliph, when they thought they could get away with it. Added to that, Islam tended to be very flexible in temporal matters; necessarily, as their appeal to the masses often was inseparable from the rebellion of the masses against their overlords, which, in North Africa and Iberia, were the petty German kingdoms of the Vandals and Visigoths (hence, what we call Spain was called by Muslims
al Andalus, a corruption of Vandal). But this flexibility crept into the application of the Sha'ria, as well. Local
ulama had sufficient influence that Imams and Mullahs (who after all have only their own scholarship as authority, there being no formal heirarchy other than the shakey one the Caliphate provided) were loathe to speak out against established tribal custom.
The Caliphate quickly became the cat's paw of the most militarily powerful group which currently held sway in Mesopotamia. With the arrival of the Seljuk Turks, the Caliphs became figureheads entirely--they no longer even represented the most powerful regional clans. The ebb and flow of political power in the world of Islam tended to further fragment authority in spiritual matters, and a clever Imam courted the good will of the local ulama, or any particular alim who looked like holding the reins of power.
The result is that today Sha'ria varies considerably from one region to another, and is very heavily "polluted" by local tribal custom. There is no authority for, for example, female infanticide or female genital mutilation in either the Quran or the hadith, but it has been included in many local conceptions of Sha'ria because of long-established tribal custom.
I would not care to speculate on whether or not Islamic law is today significantly less liberal than it were 600 years ago. However, even as late as 800 years ago, the Sha'ria still largely depended upon scholarly research at Muslim universities. The decline of the Caliphate, the fall of the Seljuk Turks and the Ayyubid dynasty to the Mongols, and the concommitant assertion of independence by Fatamid Mamluks, followed by the rise of the Osmanli Turks and the
Reconquista in Spain--all contributed to the fragmentation of central, religious and legal authority in Islam.