The contrast between Jewish law and Shariah makes this point vividly. After the fall of the Jewish Commonwealth and the dispersion of the Jews into lands ruled by non-Jews following the Roman destruction of the Second Holy Temple (the current Exile, which includes the modern State of Israel), Talmudic and Jewish legal authorities developed several fundamental principles of Jewish law. The first is
dina d’malchuta dina – or,
the law of the land in commercial matters is the law (see, e.g., Babylonian Talmud, Baba Kama 113a, Baba Basra 54b, Gittin 10b, and Nedarim 28a). In other words, the sovereign’s secular commercial laws control Jewish law.
The second post-Exilic legal ruling which separates Jewish law from traditional and still quite contemporary Shariah is that Jewish law on its own terms no longer grants jurisdiction over criminal matters or any form of civil or administrative penalty to a Jewish bais din or court. At best, a Jewish court established by the community may render decisions about money judgments for actual damages as a kind of private arbitration (see, Rabbi Joseph Caro, Shulchan Aruch, Choshen Mishpat, Chapter 1:1-2.) Thus, Jewish law does not allow a bais din, even in modern Israel, to issue a ruling that could have any penal or even compensatory function for non-money damages – such as embarrassment or shame.
It is also worth noting that
there is no Jewish legal or normative doctrine for taking lives – others’ or one’s own – as a martyr in fulfilling Jewish law. Specifically, Jewish law requires a Jew to violate Jewish law and to follow the law of the land rather than suffer death except in three cases[2]: (i) if the local law requires a Jew to murder someone (fighting and killing in a legal war of the nation is of course not murder so Jews have no basis for resisting a military draft); (ii) if the local law requires the Jew to engage in some sexual perversion (incest, rape, or homosexuality); and (iii) if the local law requires the Jew to worship idols. But even in these three cases, a Jew must simply allow himself to be punished or martyred by the authorities for his refusal to violate one of these fundamental sins. That is, Jewish martyrdom is a passive act of resistance. There is no concept of a Jewish martyr who dies murdering his enemy.
Shariah turns the Jewish legal doctrine of martyrdom on its head. As noted above,
Shariah demands that its law dominate and it is a fundamental crime under Shariah for a Muslim to adhere to a secular law that does not make clear that Shariah is the “highest law of the land”. If a Muslim adheres to a secular constitution deemed the “highest law of the land”, even if the secular constitution and the laws of the land allow for Shariah adherence, the Muslim is considered a Mushrik or polytheist – subject to capital punishment because he has implicitly acknowledged a law giver higher than Allah.[3] Moreover, according to Shariah, a Muslim is a martyr when he dies killing/murdering the infidel. There is nothing passive about the act which awards the Jihadist this appellation.
And, returning to the Jewish legal concept of “the law of the land is the law”, this Jewish legal doctrine is true according to most authorities precisely because a legitimate sovereign acting as a representative of its people passing laws for just and peaceful relations is participating itself in the divine plan for human existence. Jewish law recognizes this divinity and does not seek to deligitimatize secular or foreign law by rendering it, as Shariah does, an affront and illegal challenge to supreme divine law and punishable by death.
Further, the only method available to the contemporary bais din to enforce its rulings is by the imposition of a kind of communal excommunication (i.e., herem, niddui, or nezifah).[4] As a practical matter, because the post-Exilic Jewish legal structure is not hierarchical, no bais din can force its ruling on any other and this leaves even this enforcement action as little more than local, voluntary censure.
To a Shariah-adherent Muslim, however, contemporary Shariah has lost none of its political clout and continues to have the power of state action. Thus,
Since Islamic law reflects the will of [Allah] rather than the will of a human lawmaker, it covers all areas of life and not simply those which are of interest to a secular state or society. It is not limited to questions of belief and religious practice, but also deals with criminal and constitution (sic) matters, as well as many other fields which in other societies would be regarded as the concern of the secular authorities. In an Islamic context there is no such thing as a separate secular authority and secular law, since religion and state are one. Essentially, the Islamic state as conceived by orthodox Muslims is a religious entity established under divine law.[5]
To conclude, it should be clear with but a cursory analysis, because
Shariah calls for the destruction of our constitutional republic and for our conversion, subjugation, or murder it is criminal. There simply is no basis to suggest that either Judaism or Christianity, or in fact any other well-known religious dogma or doctrine, falls within the statutory coverage of our extant laws criminalizing sedition.
I hope this letter clarifies the matters you muddled and presented quite falsely in your debate with Frank Gaffney. Should you need any further elaboration, please feel free to contact me.
Thank you.
Sincerely,
David Yerushalmi
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