As we begin the second week of August, it would seem that most of the political world believes that GOP nominee Donald Trump should now, at long last, attempt to “pivot” to something that looks less like a series of disconnected eruptions of rage and nonsense and more like what’s commonly known as a “professional campaign” ― with disciplined messaging and actual campaign strategy. GOP elites, in particular, have gotten so desperate having to watch Trump fluff his lines again and again that as of last week, they were referring to a needed interdiction as an “intervention” ― as if someone they loved very much was succumbing to the depredations of drug addiction.
As it happens, Trump has a lot of ground to make up on his Democratic opponent, Hillary Clinton. (Actually, depending on which poll crosstabs you’re looking at, he’s got ground to make up on Libertarian candidate Gary Johnson.) So, this should be one of those “all-hands-on-deck” times ― in which those who want Trump to prevail advise him to consider the road ahead and encourage him to do what needs to be done to actually win the election.
Or, alternatively, if you are the Trump-besotted folks at Breitbart News, you can keep fighting the battles of two weeks ago. That seems to be the approach, anyway, of Breitbart’s Paul Sperry, who is still working whatever spare angle he can on the Khizr Khan story. In case you missed it last week, Sperry imagined that he had finally penned the ur-hit piece on Khan after paging back through some of his old writings ― writings which, if held up to a blacklight and squinted at hard enough, could maybe be used to paint Khan as a sympathizer of radical Islamic extremists, as opposed to the dedicated and patriotic American whose equally patriotic son died defending the Constitution he carries near his heart.
Charitably, it’s a bit of a stretch. Not so charitably, it’s an inept attempt at slander. Let’s get into it!
Sperry’s very strange smear of Khan ― titled “Khizr Khan Believes The Constitution ‘Must Always Be Subordinated To The Sharia’” ― hangs upon two documents, both of which have been rather desperately misconstrued in ways that only make sense if you omit certain pieces of information and wildly bake something crazy out of the remaining elements.
The first item is a review, written by Khan, of a book titled Human Rights In Islam ― a work that is actually just a compendium of presentations from a 1982 seminar by the International Commission of Jurists in Geneva. The second piece that shows up in Sperry’s brief against Khan is an “explainer” of sorts that he wrote in 1983 for Volume 6:23 of the Houston Journal of International Law, in which Khan helpfully provides a concise “Juristic Classification Of Islamic Law.”
In the first instance, Khan rather dispassionately renders his verdict on the value of the materials presented at the seminar, citing one speaker in particular for making a convincing argument. In the second document, Khan ― just as dispassionately ― provides the Houston Journal of International Law with some facts about Islamic law and its derivations.
At no point does Khan argue that the United States Constitution should be “subordinated” to Sharia. The Constitution, in fact, never comes up in either piece of writing ― mainly because there is no reason to bring it up. The Magna Carta, the French Constitution of 1958, Starfleet’s Prime Directive, the First Law of Robotics ― these don’t come up either. (That’s too bad, if only because I’d love to know if robots could be made Sharia-compliant.)
Sperry’s whole conclusion here ― that Khan is arguing that the United States Constitution should be subordinated to Sharia ― is truly daffy, and basically relies completely on his readers not doing what I did ― reading all the source materials. (And being able to read in the first place.)
In his “Juristic Classification of Islamic Law,” Khan attempts to explain how Islamic jurists classify the sources of Islamic law, noting both the chief and supplementary sources that have guided the thinking of these jurists (and which have led to a lifetime of argument between them). Khan notes that within Islamic culture, “the individual opinions” of Islamic jurists are “subordinated” to the two chief sources ― the Quran and the Sunnah.
Khan goes on to note that the larger “question of the sources which” these Islamic jurists have historically “relied upon” to derive legal opinions “is always open to reconsideration as to their compliance with the Quranic and Prophetic texts and the fulfillment of their objectives.” However, Khan notes an immutable bottom line within Islamic legal culture:
This brings up an important fact which is generally overlooked, that the invariable and basic rules of Islamic aw are only those prescribed in the Shari’ah (Quran and Sunnah), which are few and limited. All other juridical works which have been written during more than thirteen centuries are very rich and indispensable, but they must always be subordinated to the Shari’ah and open to reconsideration by all Muslims.”
Khan isn’t rendering a value judgment on Islamic law or Sharia compliance here. These are just definitional facts, pertaining to the history of Islamic law and culture, how it has developed over centuries, and how it has continued, within those applicable cultures and societies, to be applied.
But Sperry goes wildly astray in his interpretation, leaping to the conclusion that Khan, far from simply relating a factual explanation, is arguing that every legal system in the world should be brought into compliance with Islamic prophetical texts. That’s not what’s happening! Khan is specifically limiting himself to a discussion of Islamic culture and law ― which is a thing that really does exist and which one can discuss separately from other cultures and their juridical philosophies.
When Khan refers to “all other juridical works” that “must always be subordinated to the Shari’ah,” he is referring exclusively to Islamic juridical works, not Western ones. When Khan notes the unadorned fact that the Quran “is the absolute authority from which springs the very conception of legality and every legal obligation,” he is confining himself ― again, exclusively ― to the Islamic world and its legal practices, not to societies and cultures outside of that context.
Sperry includes this weird, scare-quoted sentence in his indictment of Khan: “Khan then notes that Quranic law includes ‘constitutional law.’”
It appears that what Sperry believes is that the use of the phrase “constitutional law” is a reference to the United States Constitution. This is incorrect ― it refers to small-c “constitutional law” in general. Believe it or not, the United States is not the only nation that has a constitution, from which “constitutional law” is practiced. Within the context of this piece of writing, Khan is simply using a term that applies to the codified bodies of laws that dictate how states govern their citizens ― in this case, specifically Islamic states.
In fact, here is the only instance in which Khan uses the term “constitutional” in his explainer (emphasis mine):
It has to be admitted, however, that the Quran, being basically a book of religious guidance, is not an easy reference for legal studies. It is more particularly an appeal to faith and the human soul rather than a classification of legal prescriptions. Such prescriptions are comparatively limited and few. Family law is laid down in seventy injections; civil law in another seventy; constitutional law in ten; international relations in twenty-five; and economic and financial order in ten. Such an enumeration, however, can only be approximate. The legal bearing of some injuctions is disputable, whereas in some others it simultaneously applies to more than one sphere of law. The major portion of the Quran is, as with every Holy Book, a code of divine exhortation and moral principals.
So, there’s no mention of the United States Constitution. In fact, this single reference to “constitutional law” doesn’t even wade into the murky arguments of whether any nation’s constitutional law should be Sharia-compliant ― it simply and dryly notes that the Quran offers 10 prescriptions that specifically pertain to “constitutional law.”
Like I said before, in this “Juristic Classification of Islamic Law,” Khan is only rendering a set of indispensable and explanatory facts about Islamic juridical culture so that people might better understand it. He’s not arguing that everyone, the world over, should adhere to Islamic law, nor is he offering any sort of passionate value judgment about it. Insofar as Khan allows any personal judgment to slip out, though, let’s note that it arrives in the form of Khan describing the severe limitations of using religious texts to guide legal practices.
Moving on to Khan’s review of the book Human Rights In Islam, Sperry’s criticism of Khan demonstrates that he is either unwilling or unable to make the necessary distinction between an argument that a reader notes has been convincingly made, and an argument to which a reader agrees. By eliding over that distinction, he smears Khan as some sort of enemy of the United States. I’m pretty sure these distinctions will be lost on Sperry, but since I’m in for a penny here, let’s address it.
Khan makes his interest in the seminars that formed this Human Rights in Islam book plain from the start of his review, saying that the “position of human rights in the cynosure of world attention has created a need among scholars to explore the historical development of human rights.” The concept of “human rights,” as it turns out, has evolved among different cultures in different ways, and the Islamic world is no different. Khan evidently found this 1982 seminar useful because it included contemporary jurists from the Islamic world, all of whom were invited to explain their points of view.
Additionally, Khan notes forthrightly at the beginning of his piece that this seminar made no effort to enjoin an argument about whether the points of view of these Islamic jurists are a model to follow or deserve a greater share of attention over the points of view of other jurists that emerge from other cultures and societies. As Khan explains, “The seminar’s purpose is neither to address human rights situations in particular countries nor to provoke a dialogue between the Muslim and Western worlds.” Instead, the seminar was a “forum for discussion of human rights issues which are important to Muslims” in particular.
In other words, any battle of whose legal culture is getting “human rights” right and best is tabled for another day, in favor of simply exploring these jurists’ ideas and getting them on the record.
Eventually, Khan arrives at a discussion of a keynote speech delivered by a Dr. A.K. Brohi, who at the time of the seminar was the “former Pakistani minister of legal and religious affairs.” Sperry treats Brohi’s mention as a red flag:
As Pakistani minister of law and religious affairs, Brohi helped create hundreds of jihadi incubators called madrassas and restored Sharia punishments, such as amputations for theft and demands that rape victims produce four male witnesses or face adultery charges. He also made insulting the Muslim prophet Muhammad a crime punishable by death. To speed the Islamization of Pakistan, he and Zia issued a law that required judges to consult mullahs on every judicial decision for Sharia compliance.
Khan, who says he immigrated to the U.S. in 1980 to escape Pakistan’s “military rule,” nonetheless spoke admiringly of Brohi in his review of his speech. He praised his remarks even though Brohi advocated for the enforcement of the medieval Sharia punishments, known as “hudood” (singular “hadd”), that were later adopted and carried out with brutal efficiency by the Taliban in neighboring Afghanistan.
It’s worth pointing out Sperry’s lengthy depiction of Brohi is more of a menacing, spectral caricature than it is a fair and factual assessment of the man’s career, warts and all. Brohi had a very long and varied legal career that included defending some of Pakistan’s seminal rights icons, like Sheikh Mujeebur Rahman ― who won the 1970 elections, but was prevented from taking power by the Pakistani establishment (and Henry Kissinger) in a move that sparked the ensuing Bangladesh crisis. He also defended Zaib-un-Nissa Hamidullah, the country’s first woman editor and publisher.
Brohi was, at worst, a political operative who, to a certain extent, shifted as the winds changed in Pakistan. He served under both secularists and radical religious figures, and did what he thought was necessary to fit in with both types of regimes and preserve his career. It’s really difficult to tell whether he actually devised the nutty policies of chopping off hands and the like, or merely tacitly accepted them to remain in his position. But overall, his thinking seems to be not so much “radical imposition of Sharia” as it is “Islamic re-awakening” along fairly peaceful Sufi lines.
Finally, it’s worth noting that the madrassas Sperry refers to were not merely established because of Pakistani government policy ― the United States colluded in their foundation because they were where the mujahideen were trained to fight the Soviets in Afghanistan. In general, Brohi was a fairly devout Muslim who found communism objectionable and Islamic socialism in particular to be “contentious.” Opposition to Islamic socialism meant that Brohi opposed the rule of Zulfikar Ali Bhutto. Naturally, it also meant that Brohi happily went to work for the regime that overthrew Bhutto and sentenced him to death.
Nevertheless, I’m happy to concede the logic of anyone having numerous objections to Brohi’s overall political point of view. But Khizr Khan doesn’t actually applaud any of these objectionable things anywhere in his writings. The sole instance in which Khan speaks “admiringly” and offers “praise” for Brohi has nothing to do with the establishment of madrassas or “medieval Sharia punishments.” It certainly has nothing to do with the Taliban ― who wouldn’t be founded for another 12 years after this seminar was held.
In his review, Khan merely acknowledges that Brohi is a key figure in the world of Islamic legal scholars, and concedes that he’d found that Brohi had made a convincing argument during these seminars ― specifically this argument: Properly defining human rights in any context first requires the institutionalization of a “moral value system” to which a culture can commonly agree. Khan writes:
To illustrate his point [Brohi] notes, “There is no such thing as human right in the abstract. First we have to locate the human being in a given social cosmos, view him against the background of a certain economico-political and socio-cultural conditioning before we can meaningfully talk about his rights.”
At the risk of being labelled a Taliban sympathizer or a madrassa founder, I agree with this wholly uncontroversial idea. That is a convincing argument. Funnily enough, saying this is so doesn’t make me want to go out and stone adulterers or support those who do.
That’s because this is not how “appraising an argument” works. Marx and Engels convincingly argue that modern laborers experience a sense of alienation from the fruits of their labors, That doesn’t make me a fan of Soviet-style autocracy. Shakespeare convincingly argues that Richard the Third was a debauched hunchback. He wasn’t, but I still enjoy a good production of that play. I’ve read convincing arguments from atheists and equally convincing arguments from Christian theologians. This is life ― this happens.
It doesn’t actually do any discredit to a point of view to acknowledge a countering argument that’s convincingly made. In fact, if you enjoy the rigors of thought, finding convincing arguments that differ from your point of view can be immensely valuable. If nothing else, it can help hone your own argument. I suspect that acknowledging this simple premise would cause the complete collapse of Breitbart’s institutional philosophy. As it happens, the organization’s institutional inability to come to grips with the convincing evidence that suggested that former Breitbart (and current Huffington Post) reporter Michelle Fields was in fact manhandled by then-Trump campaign manager Corey Lewandowski led to a cascade of intractable ― and wholly unnecessary ― internal schisms.
Having read all of the source material that Sperry cites, I find no evidence that Khizr Khan ever argued, or accepted the argument, that United States law should be subordinated to Islamic law. But then, I’m not really convinced that was Sperry’s aim in the first place. Instead, I have become convinced that Khan’s knowledge of and facility with the facts of Islamic law and society, and his willingness to publicly share his knowledge, are meant by Sperry to be an indictment of his character, in and of itself.
There are those who believe that if a person is merely exposed to ideas, they somehow become infected with them, that demonstrating an understanding of an idea is proof of such an infection, and that the willingness to then propagate that information belies an intent to further spread this infection. This is an offshoot of an ancient philosophical argument, dating back to Plato and Aristotle, that still informs our times and adds fuel to modern philosophical debates. We’ll never really resolve this argument, and a big reason why is that Plato and Aristotle were both very gifted thinkers ― both of whom can be said to have “argued convincingly.”
To my mind, I wouldn’t think it smart to attempt to use the 2016 election to litigate this dispute. I also don’t think it’s particularly bright for people who support Donald Trump to continue to litigate the dispute between Trump and Khan. It would, in fact, seem to be best for Breitbart’s reporters to consider moving on from Khan’s speech at the Democratic National Convention and all of its attendant fallout, and instead undertake an substantial effort to explain how Trump’s policy preferences and political perspective will enable him improve the lives of ordinary Americans should he become president.
But then again, perhaps that’s not something they are capable of arguing convincingly.
The Huffington Post’s Akbar Shahid Ahmed contributed reporting.
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Jason Linkins edits “Eat The Press” for The Huffington Post and co-hosts the HuffPost Politics podcast “So, That Happened.” Subscribe here, and listen to the latest episode below.
