Daniel Pipes's favorite ingredient: weak sauce
In Part 1 of this article, we discussed Daniel Pipes’s claim that Jews don’t want to force their religious views on others, unlike Muslims who supposedly do. In Part 2, we’ll question Daniel Pipes’ claim that Islam is inherently misogynistic.
David Green, a right-winger belonging to Civitas, declared on BBC Radio that Islamic law is totally unlike Jewish law in that it oppresses women. Daniel Pipes uses similar reasoning, arguing that Sharia should be banned because it is–unlike Jewish Halakha–”inescapably misogynistic”:
…Ignorant, isolated [Muslim] females would submit to the inescapably misogynistic Sharia, a law code that [1] permits parents to marry off pre-pubescent girls, [2] men to marry multiple women, [3] husbands alone to divorce, [4] fathers automatically to win custody of children over certain ages, and [5] sons to inherit more than daughters.
Let’s take these one at a time, shall we? We’ll play both defense and offense:
[1] Marriage of pre-pubescent girls
Defense: Technically, the Sharia allows Muslim parents to draft a marriage contract on behalf of their pre-pubescent daughters, but the marriage remains suspended (mawquf) until the girl reaches maturity, whereupon she is given the right of khiyar al-bulugh, i.e. the right to annul the marriage. (For a detailed discussion of this topic, please read this here starting from page 68.)
Offense: Daniel Pipes has argued that Islamic law is unacceptable since it supposedly allows marriage of pre-pubescent girls, yet on the other hand he wholeheartedly thinks that Halakha should be allowed in the West. Yet, Jewish law itself allows marriage of pre-pubertal girls! According to Rabbi Naftali Silberberg of AskMoses.com, the Halakha allows Jewish girls to marry at the age of three:
What is the minimum age of marriage according to Jewish law?
by Rabbi Naftali Silberberg
…In ancient (and not so ancient) times however, marriage was often-times celebrated at a rather young age. Although we do not follow this dictum, technically speaking, a girl may be betrothed the moment she is born, and married at the age of three. [Shulchan Aruch, Even HaEzer 37:1.]
The editor of the site clarifies: “There is the technical rule, and then there is the proper, practical, and wise thing to do. The Talmud, too, agrees that technically according to Torah law a girl can be married at a very young age, but the rabbis imposed a prohibition on such an unwise practice.” In other words, the law itself allows it, but the rabbis generally discourage or even disallow it due to practical considerations.
Some more defense: Just as rabbis have prohibited under-aged marriage even though technically the Halakha allows it, similarly many Muslim leaders have fought to raise the minimum age of marriage to eighteen years old, and they do not think this is a violation of Sharia to do so; rather, they argue that in this time and age it is in fact in accordance with the objectives (maqasid) of the Sharia to do so. They also argue that conforming to international agreements is binding from a religious angle.
Red herring: Jewish law (Halakha) allows marriage of pre-pubertal girls, yet Daniel Pipes still supports allowing Halakha in the West. Of course, the entire matter is a red herring, since the religious arbitration courts of Canada were only permitted to act within Canadian law. This is a concept that many average readers did not quite grasp! In other words, if the religious law clashed with Canadian law, then the Canadian law would rule supreme; marriage of under-aged girls would never be tolerated in Canada, Sharia courts or no Sharia courts! So it is odd that Daniel Pipes would even mention this, but I guess it is a similar tactic that neoconservatives rely on to fear monger, such as the imaginary “death panels” that Sarah Palin invented.
[2] Polygamy
Defense: Opinions towards polygamy differ widely amongst Muslims of various persuasions. Reform-minded Muslims are inclined to consider polygamy as the exception, not the rule. According to the Sharia, a woman can forbid the husband from marrying a second wife by making such a clause in the prenuptial agreement (nikah contract). In any case, Muslims do not believe it is permissible to break the law of the land in this matter.
Offense: I’ll let Rabbi Naftali Silberberg do the talking:
Does Jewish law forbid polygamy?
by: Rabbi Naftali Silberberg
The Torah does not forbid a man from having multiple wives. Abraham, Jacob, David and Solomon are notable examples of biblical figures who wedded more than one wife.
Approximately 1000 years ago, the noted German scholar, Rabbi Gershom “the Light of the Diaspora,” banned polygamy. This ban was accepted as law by all Ashkenazi Jews but was not recognized by Sephardic and Yemenite communities.
Practically speaking, polygamy is almost non-existent today even amongst Sephardic Jews, due to the fact that the overwhelming majority of them live in societies where polygamy is not legally and/or socially acceptable…
So technically the Halakha does not forbid polygamy, and to this day Sephardic Jews hold it to be permissible. And even the ban accepted by Ashkenazi Jews has a “loophole” in it, as Rabbi Silberberg adds in the footnote: “There is a loophole in this ban, allowing a man to marry a second wife under certain extenuating circumstances.”
Red herring: Once again, even if Sharia arbitration courts were allowed, polygamy would still be outlawed in Canada, so this is another red herring brought forth by Pipes.
[3] Husbands alone have the right to divorce
Defense: Islam allows khula (female initiated divorce). If a Muslim wife does not like her husband–and thinks it unbearable to live with him–then she is granted a divorce, even against the husband’s wishes. (For a detailed discussion, read this here, starting on page 69.)
Offense: Jewfaq.org says:
Under Jewish law, a man can divorce a woman for any reason or no reason. The Talmud specifically says that a man can divorce a woman because she spoiled his dinner or simply because he finds another woman more attractive, and the woman’s consent to the divorce is not required.
Inequality of the Sexes
The position of husband and wife with regard to divorce is not an equal one. According to the Talmud, only the husband can initiate a divorce, and the wife cannot prevent him from divorcing her. Later rabbinical authorities took steps to ease the harshness of these rules by…compel[ing] a husband to divorce his wife under certain circumstances: when he is physically repulsive because of some medical condition or other characteristic, when he violates or neglects his marital obligations (food, clothing and sexual intercourse), or, according to some views, when there is sexual incompatibility.
A peculiar problem arises, however, if a man disappears or deserts his wife or is presumed dead but there is insufficient proof of death. Under Jewish law, divorce can only be initiated by the man; thus, if the husband cannot be found, he cannot be compelled to divorce the wife and she cannot marry another man. A woman in this situation is referred to as agunah (literally, anchored).
In other words, in most situations, a Jewish woman–according to the Halakha–cannot obtain a divorce (get) from her husband unless he agrees to it, making it difficult to get out of emotionally abusive relationships. As Susan Weiss, an Israeli defense lawyer, says: “Rabbinical courts almost never compel a husband to give a get [i.e. divorce].”
The Jewish Chronicle writes:
Under Jewish law, if a man refuses his wife a get, a religious bill of divorce, she is considered an agunah, a chained woman denied the right to remarriage.
Furthermore, husbands can extort their wives, only giving divorces for huge sums of money:
Most of the time, the cost of [a woman's] freedom is just money. Payment is usually in installments…The Israeli Supreme Court has sanctioned such waivers, viewing the get as an adequate quid pro quo.
[4] Fathers win custody over children
Defense: In fact, the Sharia seems slanted towards mothers in this regard. Generally speaking, the children are to be awarded to the parent who is fitter for parental duties. If, however, both are equally fit, then the mother is favored over the father up until the age of about eight years of age. Past the age of eight, the child has a right to choose which parent to live with. For a detailed discussion, please read this fatwa from an ultraconservative Islamic website, which states:
Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved.
Offense: In the Jewish Halakha, as enforced by Israel, the father can ensure that he gets sole custody of the children. This article here–written by the Israeli defense lawyer I cited above–explains why. As I discussed in the previous point, a Jewish woman can only get a divorce if her husband agrees to it; many husbands refuse to give a divorce unless she forfeits her right to custody, forcing her to choose between her freedom and her children. Weiss laments:
How much is your freedom worth? Would you give up custody of your child to free yourself from an oppressive marriage? …These problems torment my clients daily. I am a divorce lawyer in the State of Israel. I also happen to be an Orthodox Jew. Every time I represent someone petitioning for divorce, my client must inevitably pay for his or her freedom…A few of my clients have bought their freedom at the cost of their children. I once represented a woman whose husband refused to give her a get–a Jewish divorce–unless she gave up custody of her son. After two years of litigation, she relinquished custody in return for her get [divorce].
[5] Sons inherit more than daughters
Defense: According to Sharia, a son receives twice the inheritance of a daughter. Muslim apologists point out a few things: First, it should be understood that prior to Islam, the pre-Islamic culture of the region dictated that women receive no inheritance whatsoever. When the Islamic prophet Muhammad legislated that the daughters would from now on receive an inheritance–half though it may be–the “pagans” and converts to Islam decried this progressive law, arguing that women did not fight in battle and therefore should receive no inheritance. (At that time, inheritance was linked to bravery on the battlefield.) Muslim apologists argue that one must view the Sharia in the context that it was revealed in; it didn’t reduce female inheritance, but rather reduced male inheritance in order to give women a share. For that particular time, the Sharia was considered progressive.
They also argue that a Muslim man has a much greater financial responsibility than the female. A man must–according to the Sharia–financially support his wife, children, parents, and widowed sisters; meanwhile, there is no such obligation on a woman, who does not even have to provide for herself. Furthermore, a man’s wealth is–again, according to the Sharia–shared by the wife, whereas a female’s wealth is all her own and the husband cannot touch it.
Offense: In any case, one might not be satisfied with the defense that Muslim apologists come up with, but it’s really besides the point, since Daniel Pipes was comparing Islamic Sharia to Jewish Halakha. According to the Halakha, a daughter does not inherit at all; we read:
INHERITANCE
The Torah laws of succession state that when a man dies and leaves sons as well as daughters, the sons inherit his state, whereas the daughters receive nothing.
The Torah of course is a part of the Bible, and the above is referring to Numbers 27:1-11, in which God speaks to Moses and informs him that women will inherit only when a father leaves behind no sons. This fact–that the Bible gives no inheritance to daughters if there are sons–is of course lost on the Islamophobes when they call the Quran “misogynistic” for giving only half the inheritance to daughters; and here, we are talking about those Islamophobes who have a deep respect and admiration for the Judeo-Christian tradition.
Daniel Pipes Brings Weak Sauce
Daniel Pipes
Daniel Pipes brought up five points of criticism, yet each of these five points applies to the Halakha equally if not more so. How is it then that Pipes is so adamantly opposed to Sharia based on its supposedly “inescapably misogynistic” nature, but at the same time supports Halakhic courts? This double-standard exposes his profound bias and bigotry. It is this attitude–of selective “scholarship” and horrific double-standards–which actually typifies the approach of the Islamophobes in general, including Daniel Pipes, Robert Spencer, Pam Geller, Bat Ye’or, and the rest of the goof troop. For example, in an interview with Cenk Uygur of The Young Turks, Pam Geller goes off on a tirade about how oppressive and warlike Muslims have been throughout history, yet when Cenk counters this by saying that Christian history has also been oppressive and warlike, Pam completely denies this fact. It is this sort of selective analysis which buttresses the Islamophobic ideology.
Daniel Pipes argues that the Jewish courts should be allowed to operate because–according to him–the system worked, and so why are these Mooslims now messing things up? Pipes wrote:
The system quietly worked. “If there have been any problems flowing from any rabbinical court decisions, I’m not aware of them.”
Yet, that’s not true at all; and again, it’s a case of selective analysis. A rabbinical court in London divorced a woman from her husband against her will on the grounds that she “dressed provocatively, worse than a common harlot.” In another decision, a London-based rabbinical court banned a child from a school on the basis that he was a non-Jew, rejecting his conversion to Judaism as unauthentic. A third example is of a man named Nick Lowenstein who kept his wife “chained” (agunah) for over fifteen years, refusing to give her a divorce that she desperately desired; the London-based rabbinical court refused to force the husband to give a get (Jewish divorce).
UPDATE: A reader sent this tip to us: a New York Times article about how rabbinical courts in the United States have been denying justice to children who have been sexually molested; according to a strict interpretation of the Halakha, ultra-Orthodox rabbis forbid victims from going to secular authorities to report crimes of sexual molestation. Meanwhile, the rabbinical courts seek to bury cases that involve Jewish men accused of sexually abusing children. The New York Times reports:
For decades, prosecutors in Brooklyn routinely pursued child molesters from every major ethnic and religious segment of the borough’s diverse population. Except one…the ultra-Orthodox Jewish community…Some years, there were one or two arrests, or none.
But in the past year, there have been 26. District Attorney Charles J. Hynes has brought charges against a variety of men — yeshiva teachers, rabbis, camp counselors, merchants and relatives of children. Eight have been convicted; 18 await trial.
Now, a growing number of haredi Jews in Brooklyn say they do not think they can get justice from the rabbinical courts, which in several high-profile cases have exonerated people who were later criminally convicted of child abuse.
If the sudden spike in prosecutions is startling, even more surprising is the apparent reason: ultra-Orthodox Jews, long forbidden to inform on one another without permission from the rabbis who lead them, are going to the police and prosecutors on their own.
Members of this close-knit community, who refer to themselves as the “haredim,” meaning those who fear God, reject modern secular culture and keep strict control over what they consider internal affairs. For centuries, disputes involving children, marriage and business have been decided by rabbinical courts called beth dins, which do not report their findings to the secular authorities, even when they judge someone guilty. Taboos codified long ago during times of persecution discourage community members from informing on other Jews; violations can result in ostracism.
Now, a growing number of haredi Jews in Brooklyn say they do not think they can get justice from the rabbinical courts, which in several high-profile cases have exonerated people who were later criminally convicted of child abuse. And although some advocates for victims contend that the district attorney has been too accommodating of the rabbinical hierarchy — a charge that Mr. Hynes denies — more families are turning to his office for help…
Jews molested as children in communities nationwide, said the clandestine handling of molestation cases had kept leaders from dealing with the problem and made it easier for predators…
Advocates for victims say similar views have informed some of the Brooklyn rabbinical leadership’s worst judgments, allowing prominent rabbis who were repeatedly accused of abuse to keep their jobs and reputations.
In 2000, Rabbi Baruch Lanner, a charismatic youth leader and yeshiva principal who was the focus of students’ abuse claims for more than 20 years — and was exonerated by a beth din — became the subject of an exposé in The Jewish Week, which found more than 60 accusers. The article led to a criminal investigation and a seven-year prison term for Rabbi Lanner.
Another rabbi, Yehuda Kolko, a grade school teacher at a Flatbush yeshiva, was accused of sexually abusive behavior by parents and former students numerous times over 30 years. The complaints were dismissed by rabbinical authorities, however, until New York magazine wrote about them in 2006.
Nowhere am I arguing that Sharia courts would not have similar mishaps. What I am questioning is Daniel Pipes’ claim–echoed by so many Islamophobes–that it is Sharia courts in specific that would be problematic, whereas Halakha courts–as he puts it–”quietly worked.” (They definitely worked quietly, just not sure if they quietly worked.)
It is this selective analysis–in which missteps by the Muslim community are put under the microscope whereas those of other communities are ignored–that bothers me. Can you imagine what great pandemonium would have ensued had such a child molestation scandal been going on within the Sharia court system? The Islamophobes would have had a field day; we couldn’t get them to stop talking about it. But suddenly they are as quiet as mice when it comes to these problems under the already existing Halakha court system.
Broader Conclusions
In the end, the anti-Sharia circus succeeded and the government of Ontario banned Sharia courts. However, in order to be fair, the Ontario government banned all religious arbitration courts, including the Halakhic-based ones. The government then announced that every citizen would follow the same law.
I have mixed feelings about the government’s decision. My view is that either you allow religious courts for every faith, or you disallow it for all. The government took the latter course, so what’s my problem? Well, the problem for me is that the other religions operated their own courts for many long years, and nobody said anything. It was only until some Muslims asked for the same privilege that suddenly the ban was put into effect.
Naturally, it seems that the ban was put into place due to the climate of Islamophobia. It is similar to the ban on hijab in France, legislation which was passed specifically to target Muslims, but which was then applied to Jews and Christians to some extent in order to give the illusion of fair play. Had religious courts been banned from the beginning, I would have had no problem. But the fact is that they were only banned when some Muslims asked for the same rights as people of other faiths.
I myself have reservations about religious courts operating in the West, be they of any religion. Having said that, I actually agree with Daniel Pipes when he says that the 1991 Arbitration Act (which allowed these religious courts) was “an enlightened, multicultural piece of legislation.” My only issue is that it really depends on who is running these religious courts: is it reform-minded Jews and Muslims who want to update their religious laws to deal with the modern reality, or are they ultraconservative traditionalists who live frozen in the past?
But my real issue with this whole fiasco was not at all whether or not religious courts should be allowed or not. I can see good arguments on both sides of this issue. My real problem is with the rhetoric and discourse that abounded at the time, the level of unchecked Islamophobia. There was a wholesale attack on Islam, singling it out as this heathen faith that must be fought tooth and nail. The reality, however, is that Islam is just like any other religion when it comes to these matters.
Disclaimer
This article may have come across as harsh upon Jews, Judaism, and Halakha which of course was not my intention. I almost regret Daniel Pipes choosing Jews and Halakha as a counter-example to Muslims, Islam, and Sharia. I am not at all pitting Muslims against Jews. I don’t view the world in that way. I view the world as split between extremists and moderates. I see the extremists of all the different religions (Jewish, Christian, Muslim, Hindu, etc.) as essentially being part of the same team, even though they hate each other. They are part of the same team because they have the same myopic mentality and binary view of the world.
Meanwhile, there is the rest–the great majority–who are the moderates of all the various faiths (or no faith at all), who just want to live and let live. Daniel Pipes created the comparison between Sharia and Halakha and I thought it necessary to shatter his argument that Muslims wish to enforce their views on others but not Jews. The reality is that there are zealots and nutters in all religions.
There are clearly Jewish reformers, who are working to make Halakha compatible with the modern day reality. Rabbis have come up with innovative ways of staying true to their religion but at the same time of removing injustice. For example, moderate rabbis have argued that couples should sign prenuptial agreements that would make it difficult for a husband to retain his wife against her will. In this article I only highlighted the problems that have arisen due to Halakha, but have not elaborated on the solutions that many practicing Jews have offered. Therefore, please do not use my article as something to bash Jews, Judaism, or Halakha with.
My purpose here was simply to illustrate that the problems (which were red herrings in the first place) that people have with Islam can be found in other religions, such as Judaism. Therefore, the singling out of Islam is uncalled for and inappropriate. The climate of Islamophobia has created a huge double-standard, where Islam is called to task for what other religions are not. More specifically, this article is directed to Daniel Pipes, exposing his hypocritical attitude: his worldview is not based on logic or facts, but a palpable hatred for Islam and Muslims which has blinded him.
Many of the critics of Sharia courts in the West are Islamophobes who expend 99% of their energy attacking Islam and Muslims, using “I also oppose other religions” only as a cheap disclaimer when questioned about their deep-seated hatred of Islam. Where was all their outrage for the last fifteen years when Halakhic courts were operating in the West? Were they questioning the right of Jews to live in Europe and North America as some are questioning the right of Muslims to live here? Were these critics pontificating about the improbability or impossibility of Jews integrating into society? Truly, the new adage is: one standard for Muslims and another one for the rest of humanity.
