Shariah’s Black Box

[161] An integral part of this inquiry is a study of the extant rulings of the classical Shariah authorities considered to be authoritative by contemporary Shariah authorities.

[162] See, e.g., Mary Habeck, Knowing the Enemy: Jihadist Ideology and the War on Terror (2006). For a critique of this work essentially making the case that the author properly documents the connection between doctrines underpinning the holy war by contemporary Islamic terrorists and the classical Law of Jihad but overlays this factual connection with wishful policies based upon her argument that most Muslims are not Shariah-adherent, see David Yerushalmi, Book Review, Townhall.com, Knowing the Enemy: Jihadist Ideology and the War on Terror, http://www.townhall.com/columnists/DavidYerushalmi/2006/09/06/knowing_the_enemy_jihadist_ideology_and_the_war_on_terror (last visited Jan. 28, 2008).

[163] Two examples of the government’s unwillingness to examine the doctrines of Islamic terrorists seriously. Example One. In the 9-11 Commission Report, the most substantial public government effort to date to understand what Islamic terrorism is and what drives it, the authors mention “Islamic law” only four times. While the report concedes that al Qaeda’s doctrine of worldwide Jihad is based on Islamic law, immediately thereafter the report attempts to distance anything but “radical” or “extremist” Islamic law from the narrative. But the report makes no effort at analysis or comparison to see if the “al Qaeda” version of Shariah is somehow different in kind or degree from historical, traditional, and authoritative Shariah. Nat’l Comm’n on Terrorist Attacks upon the U.S., The 9/11 Commission Report 48-53 (2004), available at http://www.9-11commission.gov/report/911Report.pdf (last visited Jan. 28, 2008) [hereinafter The 9/11 Commission Report]. At one point the report notes that “fundamentalists” blame the decline of the Islamic Empire on the failure of its religious leaders to abide by the tenets of Islamic law and the need to return to the literal understandings of the Qur’an and Hadith. The report then suggests bin Laden bases much of his doctrine on artificially selecting from the legal works of Ibn Taymiyyah. This is an effort to buttress the Report’s narrative that there is no legitimate connection between traditional Shariah and the terrorists’ doctrine of Jihad. Id. at 50-51.The problem with this “analysis” is that ibn Taymiyyah is a very important Shariah authority today among Hanbali jurists and even many non-Hanbali jurists (especially in matters relating to SCF) and his doctrine on Jihad is no less extreme than bin Laden’s. For ibn Taymiyyah’s complete work on Jihad translated, see Rudoph Peters, Jihad in Classical and Modern Islam 43-54 (2005).  But see Coughlin, supra note 24, at 46 (describing criticism of ibn Taymiyyah by Shariah authorities from the other schools.)

Example Two. The New York Police Department produced a 90-page report on the logistics and processes on the domestic recruitment of Muslims living in Western countries by Islamic terrorist groups. Islamic law or Shariah is mentioned only six times and while the report concedes that the goal of the terrorists is the establishment of a worldwide Caliphate subject to Shariah, all factual indices of Shariah adherence by budding terrorists is characterized as an act identified as “Salafist” or “Wahhabi.” Again, this is an effort to marginalize the connection to Shariah proper and to label it as a Saudi Arabian-based cult. The New York City Police Department report made no effort to understand the relationship between Salafism and Shariah or to see what traditional and authoritative Shariah mandated in the Law of Jihad. Had the researchers done so, they would have found that Salafism is nothing more than what the classical Shariah authorities have held for a millennium. Mitchell D. Silver & Arvin Bhatt, Senior Intelligence Analysts, N.Y. City Police Dep’t Radicalization in the West: The Homegrown Threat (2007), available at http://sethgodin.typepad.com/seths_blog/files/NYPD_Report-Radicalization_in_the_West.pdf (last visited Jan. 28, 2008).

[164] Coughlin, supra note 24.

[165] Yahiya Emerick, What Islam is all About: A Student Textbook (Grades 7 to 12) (5th

rev. ed. 2004).

[166] Coughlin, supra note 24, at 97-108, 134 et seq.

[167] One poignant example is Coughlin’s use of Averroes (aka Abu al-Walid Muhammad Ibn Muhammad Ibn Rusd), one of the leading Shariah authorities of the so-called Golden Era in Islamic history often touted as an age of Muslim enlightenment, pluralism, and peace. What Coughlin points out, based upon available English translations of Averroes’ major work on Jihad, is that even in their best light, Shariah authorities consistently maintain that infidels and polytheists “must be fought.” See, e.g., Coughlin, supra note 24, at 184. For the entire work on Jihad translated, see Peters, supra note 163, at 27-42.

[168] See, e.g., 15 U.S.C. 77g (2006)  (disclosures required in registration statements); § 77j (disclosures required in prospectuses); § 77aa (schedules of information required in registration statements).

[169] Id. § 77k.

[170] Respectively (1) § 77f; (2) § 77k(a)(2); (3) § 77k(a)(3); (4) § 77k(a)(4); and (5) § 77k(a)(5).