One of the most common refrains concerning Iraq in the post-Saddam era is that it is best divided into three separate states, and that the major impediment to that is an equitable resource division.  This, in theory, explains Sunni recalcitrance to the division of the Iraqi state.  They would ask for greater autonomy than they currently do, the theory runs, except if they did, they'd be left with a rump state with little real advantage by way of natural resources. So has run the theory from the time that it was first proposed by then Council of Foreign Relations chief Leslie Gelb and then Senator Joseph Biden, accompanied by a means to achieve that necessary resource division.

And, for the record, I find it orientalist nonsense. 

The problem is that it pretends as if there can be no such thing as national sentiment in the East, because we in the East are foreign, different, unintelligible and of course thoroughly antiquarian in our preferences and commitments.  In the East, we're ruled by tribes and clerics, not by any sort of attachment to the nation.  Bernard Lewis even says there is no such word as "nation" in Arabic.  (Ummmm, it's watan.  Whatever the hell the word meant in 1850 or before, what it means now is "nation."  Made up word after the fact? I suppose. And much the same can be said of the word "nation" in English, albeit a few centuries earlier). 

This is particularly obvious in Iraq.  The Kurds, of course, seek autonomy from the broader Iraqi state in a form of Iraqi Kurdistan, though that has nothing to do with some sort of commitment to tribe or religion (if the former, they'd call it Barzanistan, and if the latter, they'd not seek autonomy at all).  It's just a commitment to a different nation, hence the Kurdish flag everywhere.  I've been pretty clear that I think Iraq in its current borders is here to stay, and the Kurds won't seek a separate state, but clearly the Kurds desire autonomy.  That they feel the same in Turkey is relatively obvious as well, it's their primary claim, and the reason that extremists in Turkey can be seen to burn Turkish flags in demonstrations. Yes, extremists do that, and yes, moderate Kurds find that properly pointless and indeed self destructive, but it reflects an autonomy sentiment because you are talking of a people who regard themselves a separate nation.

Walk into Falluja and burn an Iraqi flag, despite all the discontent, and watch what happens to you.  More or less what happens if you try burning an American flag in Atlanta, though they aren't quite as nice in Falluja perhaps.  The point is, people in Atlanta don't think about independence first, and resources restrain them.  They think of themselves as Americans, and resource divisions, or income divisions, or who pays what in taxes and receives what in benefits, is not the point.  Nor New York, nor LA, nor Columbus, Ohio, and so forth.

Sunnis and Shi'a in Iraq aren't so different.  As my book shows, what has managed to enable the Iraqi constitution to survive, and the commitment of Sunni and Shi'a alike to the Iraqi state to continue to exist unabated despite their self evidently severe divisions is the fact that there is strong national sentiment on both sides. Leading Shi'a negotiators during the Iraq constitution felt otherwise, and sought autonomy, and paid a heavy electoral price for it, among the Shi'a.  Maliki is Prime Minister precisely because of his perceived national commitment, despite other flaws. That is what drew the Shia to him. Yes he's Shi'i and yes he's connected to the Najaf clerics, but others are too, perhaps even more so as concerns the latter. He's the nationalist and has been throughout. 

So the state exists, and the constitution exists as symbol for it, notwithstanding all the other obvious and very serious problems. Because national commitment in Iraq isn't artificial or invented. It's very real.

HAH

A growing frustration of mine is the manner in which Islamic banking sort of attempts in many ways to have its cake and eat it too, to use the rather careworn proverb.

So if I am rather caustic in my criticisms of particular rather transparent artifices used to circumvent interest in all but name--say the use of a leasing structure that sets LIBOR as the "target return" and more or less replicates the risk structure of any conventional loan, the reaction is one of puzzlement.  What's wrong with that?  Did we ever say that earning money was bad, the argument runs?  And if it is the same amount of money as a regular bank earns, is it bad for that reason?  So then if the nutritional value of turkey and pork are the same, you're going to criticize us for banning pork?  You're being silly, or so the theory runs, OF COURSE AAOIFI finds no difficulty with this.

Fine. So then this is the discharge of an obligation, no more and no less. You claim no moral or ethical advantage to Islamic finance in that event beyond that matter of divine obedience, any more than one could logically claim a nutritional advantage to avoiding pork.  God says it, and who are we to question its wisdom?

And then, on the other hand, you get the First Global Islamic Economy Summit. And here, of course, the goal is to expand the practice, to get more customers. So what do reports claim the theme is. Well, of course, the claim that the crux of shari'a banking is ethical banking.    So say folks as prominent as the heads of pretty prominent Islamic banks.  And so we're back to ethics, where somehow we are doing something different than exactly what conventional banks do, earning exactly the same return with exactly the same risk, with only artifice and formalism separating us. Now we're not avoiding pork, we're creating a brave new ethical world. Such that some dude who didn't give a crap about the divine obligation being discharged, the putative nonMuslim the industry claims will find Islamic banking attractive according to summit leaders, will sign up. 

So if that's because Islamic banking does not invest in tobacco, strip clubs or AK-47's, then fine, but then there are plenty of socially responsible investments that do that too. No player in the industry would claim adherence to those facts is enough to render the investment "Islamic".  No, it's the interest ban that is the true crux of Islamic banking.  And if that's the crux, and some non Muslim is going to find that attractive even if they don't care about the Islamic prohibition on its own terms, then you have to explain precisely what a ban on interest achieves by way of realizing some ethical principle, and how that is actually put into practice by Islamic banking. Telling me LIBOR and identical risk profiles are good enough aint gonna do it. You can't argue formalism on the one hand, and then ethics when the customer base starts to shrink. Pick a side. 

Finally, this has nothing to do with my book, which is on the Iraq constitution, but my publicist insists every blog post has to have a link to it. So fine. Here it is. 

HAH

As I was engaging this past weekend in the major continuing indulgence in my life, American football, and in particular, the big Ohio State Michigan football game this past weekend (referred to in common parlance as The Game, much as New York is referred as The City, meaning compared to it, there is no game, and no city, as the case may be), there was much talk of the 40th anniversary of one of the more famous iterations of The Game, when the two teams tied and a vote was taken by the league in which the two teams compete, known as the Big Ten Conference, to crown Ohio State the champion of the conference and send it to play in the championship game against the winner of a West Coast Conference, known as the Pac 10 Conference (at the time that was it's name). 

What I found truly fascinating was the manner in which the vote was received by the Michigan faithful, as a betrayal and an outrage, so much so that the Michigan coach to his dying days would sputter in anger if the 10-10 die in 1973 was raised.  Ohio State fans, in an even more telling fashion, point less to the process by which Ohio State was anointed and more to the result.  That is to say, they will argue that Ohio State was playing in Michigan, was ranked higher, was more likely to win the championship against the Pac 10, did in fact win against the Pac 10, and the like. 

Rendering this interesting is that it is a perfect example of the limits of the democratic process.  The idea of a vote as a means to engender legitimacy in this particular arena failed miserably.  In fact, that whole democratic process was scrapped soon thereafter in favor of other means of tiebreakers, among them who had been last to the final game, who had a better overall record, and other, similar, statistical measures.  (Matters have changed again, for reasons well beyond the scope of this post).  And democracy did not fail because Michigan was upset that it lost, everyone is disappointed when they lose a tiebreak, but it was because they never accepted the legitimacy of the result, and indeed Ohio State does not point to the process as somehow creating the necessary legitimacy but refer to other factors to justify it.  

Contrast this to a presidential election, where certainly the matter would be different entirely.  Nobody who defends Obama as being the legitimately anointed president does so on the basis of the fact that he is in fact a better choice than Mitt Romney, and no Romney faithful would question the legitimacy of Obama as president on the grounds that he is a worse president than Romney would have been.  The matter makes no sense at all. Surely it is the process that creates the legitimacy--there was a vote, it took place, and Obama won. Some may not like the result but most do accept it, and even the crazies who don't accept it find some specious reason that at least sounds in democratic process--the rules require that only a natural born American can run, for example.

So what is the difference?  Why does a vote fail so spectacularly in sport where it succeeds in politics?  The reason, I'd posit, is that the better team in sports is almost something of a truth claim, and one does not put truth claims to popular vote.   The idea that you determine the "best" team by virtue of a vote seems entirely unseemly, effectively determining athletic merit by virtue of a popularity contest. 

Now of course you do have to find a  way to break the tie that is clear, if we are not every year to have fits of outrage. We could identify some random indicium that breaks the tie by identifying the "better" team (average margin of victory over the season, for example) and collectively pretend that it does indeed always point out the better team and thereby accept the result.  We could tie the result into a more primal notion of fairness (he who went last doesn't get to go in a tie, because everyone should have a turn).  Or we could admit and embrace the randomness and flip a damn coin.  I think sports usually favors the first because it brings us furthest away from sports nihilism, where we more or less admit the whole damn thing is pretty random and stop caring so much whether the bouncy ball hits the rim and goes inside the metal circle or outside it.   But if you adopt the religion, then any of them work and are in fact used in different contexts.

What does not work is a vote, because the better team is not necessarily the more popular team, and that's a rather core tenet of sports.  'Just win, baby' goes the Al Davis mantra, it does not matter who likes you, what matters is you "win", and there is some sort of process to select the victor that does not depend on how well liked you happen to be.

Eight hundred words, and not a one yet on Islamic law, you say.  Well, I suspect something of the same leads more than a few of us who believe in secular rule to be somewhat suspicious of Islamist commitments to democracy, still, after all these years.  I recognize, of course, that we have come quite a way since the Islamic Revolution of 1979, and nobody can credibly pretend that every Islamist movement is led by a proto-Ayatollah Khomeini and the end of democracy is nigh.  And I know some are fond of saying that an Islamist party has never been popularly elected and permitted to rule in the Arab world peacefully.  Hence when they come to power in Sudan, for example, or nonArab Iran, it is through revolution or coup rather than democratic election. (AKP does not count, there's nothing Islamist about them, they're more secular than the Republican party is).  The claim is not actually true in its entirety.  Islamists lead Iraq's government,  they led Egypt's for a while, and Hamas does rule the Gaza strip after an election, even if it was the Israeli, Fatah and American preference that they not be "permitted" to do so.  

What actually hasn't happened, what has yet to happen, completely and entirely, is an Islamist government being popularly elected in a democratic process and then ceding power to a secular alternative after losing a subsequent election.  It's fair to point out that Islamist groups tend not to lose elections in our part of the world.  Yet they can become unpopular after they start to rule, see Hamas and the Brotherhood alike, and the reaction tends to be to close down and avoid addressing the obvious democratic realities staring them straight in the face.  Morsi did not build an inclusive government it is true, though Obama's cabinet is not "inclusive" either, it's left of center, as is his right being the popularly elected president.  Yet if tens of millions took to the streets to demand some sort of change, as happened in Egypt, more than appeared to demand Mubarak's ouster, I don't know, I think a sensible leader finds some damn thing to do to bring down the temperature and coopt the opposition.  You certainly don't just keep repeating you are the president and refuse to listen to anyone else, as Morsi did, and as Maliki does in Iraq.  Maybe that doesn't justify a coup, but it certainly doesn't make a secularist leap for joy as to the democratic commitment of the Brotherhood or Maliki's Da'wa.

And even if you concede, as I state forthrightly in my book, that there is a normative commitment to democratic rule that is genuine, serious and underappreciated among Islamist groups, you wonder about its extent.  Yes as I point out in my book the Sadrists for example have grown quite adept at democratic politics and I do think that even as they can be part of ruling coalitions they can be part of opposition ones.  But they're running against other Islamists really.  Their core commitments lie untouched. Even if a secularist wins, it will be in coalition with religious groups, and that will preclude interference with core commitments.

But will an Islamist group actually cede power to a secularist opposition that seeks not to permit same sex marriage (not politically possible in our part of the world) but take vigorous action against those who commit unspeakable vigilante acts of violence against homosexuals?  Will it allow a free speech law that does not permit outright defamation of Islam's most sacred symbols  but at least allows vigorous theological debate that is so often shut down on the Arab street on the basis of ludicrous claims of apostasy?  It is one thing to oppose Qur'an burning.  A majority of Americans think flag burning should be illegal after all, and only a fool would attempt it on a public street, constitutionally protected or not. As a proud Muslim who thinks himself devout enough even if the Brotherhood might disagree, I certainly have very low regard for Qur'an burners.  But it is another thing entirely to prohibit the publications of an author who indicates that preIslamic poetry was made up in the post Islamic period to emphasize the importance of Mecca which in fact was a minor stop on a trade route.  If you ban the latter, your society is deeply, fundamentally intellectually fettered. 

I don't know. I worry there are limits to their commitments. Because even if a Brotherhood stalwart says to me he'll accept an electoral result even if it means that heterodox Islamic views might be more respected than he deems warranted, it sounds to me like Bo Schembechler at Michigan saying he'll accept a vote to decide who goes to the Rose Bowl this year. I think if he says that "this guy knows how the votes will line up and it's purely instrumental to him, as soon as he realizes he might lose his commitment to this vote thing will go out the window. he can't believe the better team is picked by vote." And I fear the same as to the Sadrists or the Brotherhood. 

I don't mean I know what the Brotherhood is thinking, or the Sadrists for that matter, or what they will do in any given situation. I lack any epistemological certainty of course, and by no means do I think there is any alternative or any normative position I can take as a committed small l liberal small d democrat but to let them participate and take them at their word. Still, I'm nervous, because I can't see how they can really, truly subject all of their truth claims to popular vote coherently, and haven't seen any evidence that they do.

HAH 

I read a news story not terribly long ago that relates to some of the themes I discuss in my new book as it relates to Islamic law that I thought was worth exploring.

Not all that long ago, a boy was killed in Syria by Islamic extremists controlling rebel Syrian territory on the grounds that he had insulted the Prophet.  What he actually said, to some guy demanding coffee, was that he would not sell this person coffee, even if the Prophet came back to life.

I actually have a hard time finding the insult to the Prophet.  I can see the attempt by the kid to insult the prospective coffee buyer, essentially trying to tell him he wouldn't sell him a cup of coffee under any conditions.  It is rather incoherent because it's hard to see how the Prophet's highly unlikely return would lead him to be more likely to lead the boy to sell a cup of coffee anyway.  More coherent would be if the boy was understood to say that even if the Prophet returned and asked the boy to sell the prospective buyer a cup of coffee, he wouldn't do it.  That I suppose could be understood as insulting, though again the prospective buyer receives most of the insult.  (i.e I hate your ugly face so much that even if the Prophet himself reappeared to me this instant and demanded from me this instant that I sell you the coffee, I'd refuse to do it, because my love for him, immense as it is, is less than my deep and fundamental hatred of you).  Moreover, even that rendition is not so much an insult to the Prophet as a threat to insult him under a hypothetical set of affairs so remote in terms of its likelihood that it is hard to regard as imminent.  After all, he hasn't actually told the Prophet he won't sell the coffee, he has merely expressed an intent to do so if the Prophet appears, which of course he won't.

Naturally, this doesn't seem to have mattered much to the brute half brained extremist thugs that populate so much of the Syrian opposition these days, so much so that I've switched from being the only Shi'i I knew who broadly supported the rebels to one who  throws his hands up and has no damn idea what to do there.  Bashar the butcher or this crew, God help us all. In any event, they decided the kid insulted the Prophet and killed him, offering no opportunity for repentance. 

Ironically, the BBC article linked to above seems to point the lack of an opportunity for repentance as an example of their ignorance of Islamic law.  Actually, that's probably the only piece they got right, at least as a rendition of traditionalist understandings of Islamic law rather than the more liberal modern and progressive interpretations of the Qur'an I endorse of course, discussed further below.  For reasons that I'll leave the classical experts to explain, the historic medieval juristic texts are relatively clear that sabb al nabi, or insulting the Prophet, offers no opportunity for repentance while most schools do allow repentance for blaspheming against God.  Go figure. 

Anyway, these high profile news stories are attention grabbing, but distorting the real underlying problem in places like Iraq.  My guess is in the relatively limited number of places in the Islamic world where classical apostasy is actually applied by judges, and not half brained thugs who can't think further than they can shoot, they'd be able to avoid any capital punishment by merely finding the statement a non-insult, for the reasons laid out above. Would some gang end up beating the guy up and killing him anyway? In Pakistan, quite possible. In Saudi, no.  But again, that's just a question of the level of state control rather than the state application of a penalty.

No the deeper problem in the Islamic world in terms of the state and its relationship to apostasy isn't these high profile cases, whenever they do arise, it is the lower level ones. In Egypt or Iraq, for example, judges don't execute anyone for apostasy.  There is no such punishment for any such crime.  But the historic Islamic crimes do have their salience.

In Egypt, you might be a professor who says things that are somewhat unorthodox, and you might then be deemed an apostate and forcibly divorced from your wife, who cannot be married to a non-Muslim man. If you want to stay married, you live the rest of your life in exile.

And in Iraq, in cases I describe in my book, you might be a Christian woman who is seventeen years old.  So you're a minor under modern law in Iraq or elsewhere (though  you wouldn't be a minor under any conception of Islamic law, as the dead 14 year old Syrian boy discovered).  If your dad converts to Islam, so do you, derivatively, without choice.  And then you're a Muslim.  Turn 18 and want to convert back?  That's apostasy.  Nobody will kill you, as noted before there is no such crime in the Iraqi code.  But you won't be recognized as a Christian.  Your Christian relatives won't inherit your estate.  you can't marry a Christian man.  There are significant legal effects that do a fair amount to screw up your life.  And that's current Iraqi case law, again read my book, notwithstanding freedom of religion clauses in the Constitution. Clauses which at least as concerns this individual, forcibly converted to a different religion and unable to change back, are rendered entirely meaningless. 

(Important aside is that this isn't the rule in the Kurdistan region of Iraq, where under a similar set of facts a different interpretation of Islamic law developed, one that regarded freedom of religion as guaranteed by the Qur'an and that regarded historic punishments of apostasy at least as performed by the Prophet as being a political crime--i.e. joining the enemy in the midst of battle--rather than a crisis of conscience.  Under this reading changing one's religion is acceptable and indeed protected under Islamic law, even as it is supposed to be under the Iraqi constitution.  Others including the famed Hashim Kamali and the more radical Mahmoud Taha have adopted this view.  It is appealing to increasing numbers of modern Muslims. But it remains by and large marginal in all too much of the Muslim world).

But of course these litigants whether the professor in Egypt forced into exile or the Christian of Baghdad forced into Islam was not killed by any court. Nobody lashed them in the street, beat them senseless, shot them dead in full public view and declared all who insulted the Prophet would suffer the same fate, as happened with the Syrian boy. So the story slips under the radar, or at least the Iraqi stories do. But they shouldn't.  As a Muslim, and a proud one, I find it sufficiently horrible that I think it deserves greater attention.

HAH

There was a very interesting and well written article in last Sunday's New York Times Magazine respecting refugee travel to Christmas Island in Australia.  As I understand it from the article, refugees from different parts of mostly the Muslim world (primarily it seems Iran, Afghanistan and Iraq) risk dangerous voyages to end up at Christmas Island.  But none of them ever make it into Australia. (I claim no expertise on this subject, relying entirely on the facts as presented in the article, which I realize is dangerous).  In any event, they are often detained for months on end, and either returned to their countries of origin, or they are resettled in Nauru or Papua New Guinea, in locations described in the articles respectively as "the barren carcass of a defunct strip mine" or "a destitute and crime-ridden island nation."

The refugees do not seem to admit this to themselves, convincing themselves that they would make it into Australia and soon enjoy western comforts.  This is despite news reports and even the journalist himself pointing out on more than one occasion their likely future. The delusion that they will enter Australia justifies the extraordinary costs and risks they undertake, and must be driven, the writer speculates, by the misery of their current circumstances.

Again, I thoroughly enjoyed the piece and admire the journalist for the risks taken. However, I am skeptical that the reason that these individuals have managed to convince themselves they will soon live happily in Australia is based entirely on current miseries leading them to want to delude themselves.  I think there may be at work a different force here, of a more epistemological sort.

The reason I think this is because I've seen a rather miserable lot of people -- Iraqi Shi'a Muslims under Saddam Hussein -- faced with circumstances wherein the source of their misery --the Ba'ath regime -- was nearing an end, and they didn't manage to tell themselves a lie that paradise on earth was nigh as soon as Saddam was gone.  Some did, exiles certainly, elites to some extent, but most more or less accepted the change passively, in some cases preferred it to what passed before, but without much enthusiasm.  What did not happen as we all know was the wild throwing of chocolate and flowers at those who came to remove Saddam.  There may have been some significant hope of improvement, but nothing compared to the wildly optimistic visions of the Christmas Island refugees as conveyed in the New York Times article.

I suspect the refugees believed they were going to Australia and they didn't much believe the information they received that suggested otherwise because, first, it did not comport with the information they regarded as reliable (reports of friends and relatives already in Australia) and, second, because it did not comport with their worldview. 

As for the first, one does not travel around Iraq very far and wide without running into someone who spent time in America, England, Australia, New Zealand, somewhere, and who gets some amount of attention for it.  Usually there is some bragging about the English and about the wealth earned and the prestige garnered, and a fair amount seems rather exaggerated.  It's hard to see how an individual with passing English really earns $8000 a month teaching English in New York, in one memorable example.  But they're getting attention, often looking for a wife to bring back to the United States, and even if not looking good to their former classmates, little of it is particularly surprising.  And as a source of information, it is held in far deeper regard than some random news report.   Word of mouth is simply the coin of the realm as concerns information, eyewitness reports held regard over claims of expertise.  It is astounding the number of times I have been told things that are flatly false respecting immigration law, with the insistence that their best friend Hassan has a second cousin Zainab who said X, or did Y, and it worked out well.  Point out it doesn't, quote the law, and you get blank faces. "What about Zainab then?"  Can't argue with Zainab, who I'm pretty sure doesn't actually exist, or if she does she didn't try the maneuver they are suggesting.

I dare not speculate on the sociological reasons for this. It would be easy to say that news reports lie often in the Muslim world and hence people are forced to rely on word of mouth. But then people lie too, and everyone knows that, and yet rumor and eyewitness report remains the reliable source.  I'll leave the explanation of that to others, but suffice it to say, the refugees no doubt heard, from sources in Australia, that they could get into the country, as those before them had, and that when they did, they'd be teaching English for $8000 month in  a few week's time in the land of milk and honey with its streets paved in gold and whatever else.

And second, the worldview.  If the question is "will America make Iraq a good place to live?" your average Shi'i is skeptical from day one.  Again, maybe he'll hope so if his other choice is the misery of Saddam Hussein's rule, but he isn't overwhelmingly optimistic. But if the question is whether or not the West is somehow provides a decent standard of living and is good to those who arrive and seek its support, well that's a widely accepted truth among refugees.  These rich and prosperous countries would not just turn people away and put them somewhere else with a bad standard of living when they arrive on their shores, it's unthinkable.  They might lie to say that to get you not to come, but when you do come, they help.  A reporter pointing out this to refugees who don't believe him thinks they're deluding themselves, but they I suspect think he is saying something that makes so little sense, because it comports so poorly with a worldview, that they think he has to be wrong. It's as if someone were to tell me, as apparently someone told Michele Bachman, that in Japan health care is withheld from political opponents.  I don't believe them, and when Michele Bachman repeats it, I take it as evidence of her departures from reality rather than my own delusions. It's just not sensible, not something I'd regard as reliable, and I'd hold to that with a pretty firm though of course not unshakeable presumption.  I trust Japan not to do something that awful. Enough that I never even bothered to follow up to figure out when and how Japan debunked the reports. I just know they did because that's how I see the world.

So in the end, I don't really think these folks lied to themselves because they were so miserable they'd believe anything to leave where they were. I suspect they just had far more faith in the humanity of the Australian government than appears to have been warranted. 

Good to be back . . . .

HAH

 

As is obvious, I've been away from this blog for a while now.  My many thanks to my many legions of fans who have written with concern for my welfare, and my many apologies to the commenters, critical or supportive, whose comments I have not posted due to my absence. I assure all that I am well, but between the purchase of our first home (as opposed to a condo), the birth of a son, and my appointment as Research Dean here at Pitt, I've been a bit overwhelmed this past year.  I did get some course relief for the Research Dean part of things, but I decided to take that in the spring, meaning this fall has been particularly harrowing.

But things are settling into a new form of normalcy and I do expect to be making reasonably regular contributions henceforth.  Honestly. 

First, however, the promised Iraq Constitution book is finally out!  With the University of Chicago Press, so you can buy it directly from their website or from Amazon.  Hardcover, paperback, electronic, whatever you prefer.  And the links are on the sidebar in case you decide to purchase it later. 

Here's a description from the jacket:

In 2005, Iraq drafted its first truly democratic constitution. Even under ideal conditions, drafting a constitution can be a prolonged process marked by contentious debate, and conditions in Iraq are far from ideal: Iraq has long been racked by ethnic and sectarian conflict, which intensified following the American invasion and continues today. This severe division, which often erupted into violence, would not seem to bode well for the fate of democracy. So how is it that Iraq was able to surmount its sectarianism to draft a constitution that speaks to the conflicting and largely incompatible ideological views of the Sunnis, Shi’a, and Kurds?

 

Haider Ala Hamoudi served in 2009 as an adviser to Iraq’s Constitutional Review Committee, and he argues here that the terms of the Iraqi Constitution are sufficiently capacious to be interpreted in a variety of ways, allowing it to appeal to the country’s three main sects despite their deep disagreements. While some say that this ambiguity avoids the challenging compromises that ultimately must be made if the state is to survive, Hamoudi maintains that to force these compromises on issues of central importance to ethnic and sectarian identity would almost certainly result in the imposition of one group’s views on the others. Drawing on the original negotiating documents, he shows that this feature of embracing capacious text in drafting the Constitution was not an act of evasion, as is sometimes thought, but a mark of its drafters’ awareness in recognizing the need to permit the groups the time necessary to develop their own methods of working with one another over time.

Last summer I posted about the manner in which the Shi'a tend to regard their Sunni brethren from a theological perspective.  I noted that the going opinion among the lead Ayatollahs tends to be that for civil and political purposes, the Sunnis are regarded fully as Muslims, but that there is something inherently deficient in their faith by virtue of a failure to recognize the Imam of their time. At the same time God is All Merciful and All Forgiving, so hope is not lost.

It seems to me that the matter could well be flipped, and one could very well ask what precisely the position of modern Sunnis is toward Shi'ism.  The broad trend in modernity, recent flareups notwithstanding, very much leans in favor of something similar.  Hence the famous "Amman Message" very much includes Shi'a theology within the broader banner of Islam, and every time there is tension in Iraq, the tendency is to hold an intersectarian prayer, with Sunnis and Shi'a alike participating, led by one or the other, in a manner that would be impossible absent some sort of theological recognition of the Muslim nature of the other.  Not theological equivalence by any means, but some sort of theological recognition.

Even the Pledge of Mutual Respect and Cooperation published by leading Sunni theologians in the United States, which I found really and truly awful as a Shi'i Muslim, recognizes implicitly the Islamicity of Shi'ism.  It is an awful document because it urges cooperation exclusively among Sunnis and exhorts them to stop the intra Sunni rancor, in 2007, which in the context of the highly sectarian times (Shi'a mosques being bombed in Pakistan, Sunnis and Shi'a being killed on the street in Iraq on the basis of sect alone, Qaradawi on a one man campaign to discredit anything and everything Shi'i he can think of, and Lebanon in sectarian deadlock which can fairly be blamed on both sides) is quite thoroughly ridiculous.  It does claim not to "negate" any statements respecting harmony across "diverse Muslim communities" or "deny the urgency" of efforts at greater cooperation across those communities. Isn't that nice?  People killing each other left and right, each side as to the other, and you write a document about mutual respect that doesn't "negate" the possibility of mutual respect with Shi'a and doesn't "deny the urgency" of such efforts. You just don't want to get to that urgent matter yet. 

Two questions:
1. Do you know what "urgency" means? 
2.  If yes, then why not get to it now?

Ah, the document tells us, because Sunnis "first need to get their own house in order."  I see.  Add to this the Pledge's demand that the Believers (that's Sunnis, Shi'a are not part of this thing remember) portray Islam as not violence prone and you're left really confused.  We hate violence, we hate intra Muslim violence, we don't want to see killing, and so what we'll do about that is say that we aren't opposed to efforts of other people to urgently stop a major sources of killing, which is sectarian, but we won't say anyting else about it because "first" we have to make sure we have our own house in order.  Isn't that turning your back on where so much of the violence occurs? If you want to stop violence and want to say you aren't violence prone, shouldn't the statement say something about mutual respect for Others rather than merely fail to negate the possibility of such respect? 

I still remember Imam Zaid Shakir's response at the time--if someone said the Badr Brigade and the Mahdi Army, both of which are Shi'i, should stop killing each other, would you say that was anti Sunni? (I am paraphrasing, exact quote on the threat of the Pledge link above)?  My answer would be that as much as I respect Imam Zaid, this does not work. If the statement was "Mahdi Army" and "Badr Brigade", please stop killing each other then of course that's fine. Same for "Sunni Saudi Tribe X and Sunni Saudi Tribe Y, please stop your blood feud."  Because it's directed to two groups who happen to belong to a sect, but it's not about broader Muslim violence.  But if in the middle of the horrific sectarian violence of Iraq circa 2007 when these folks wrote this pledge, if the Shi'a of Iraq got together and wrote a "Mutual Pledge of Respect and Cooperation among Shi'a" to respond to the relatively low levels of violence as between Badr and the Mahdi army, at the same time not "negating" the urgency of efforts to stop the real killings going on, those between Shi'a and Sunni, and delayed efforts at the later because it was important "to get our own house in order", ummm yeah, I'd regard it as pretty anti-Sunni. Really anti-Sunni actually.

Still, let's lay the credit where it belongs, it does refer to urgent efforts to foster harmony "across diverse Muslim communities" and hence does grant some Islamic recognition to the Shi'a given the reference to Iraq in the same paragraph.  (And some of these folks, like Hamza Yusuf and Zaid Shakir, are not inherently sectarian people I should add, leading to my substantial disappointment that they participated in this. But that's another story.)

But is that changing?  I was struck by the mob lynching  in Egypt of four Shi'a accused of proselytizing just yesterday. The mob apparently was urged on by some Salafi preacher zealot (big surprise there).  The police arrived late and made no effort to intervene.  This took place just outside of Cairo, not some remote village and involved a fairly well known Egyptian Shi'i Hasan Shehata.  So while I wouldn't describe the state as complicit (lots of crime occurring every day in Egypt right now), it is derelict and questions have to be asked.

In any event, the only way I can get to lynching as a punishment for "proselytizing" Shi'ism is if the Shi'a aren't Muslims to begin with.  If they are not, then plainly under the reading of folks like this Salafi, they are urging people to commit apostasy, apostasy is a capital crime, and hence they have to be killed.  If they are just theologically deficient Muslims, so you can marry them, and you can eat their meat, and you can pray with them, then it's hard to see how urging someone to join the ranks of the theologically deficient could possibly be justified as killed.  that's the shedding of the blood of a Muslim, which you're not supposed to do lightly. And yet, it happened, and yet, the police watched.   

Maybe it's just a mob killing, and emotions boiling over on Syria. Or maybe that's what kindled it, but we're seeing a broader trend toward lesser recognition, in a world where sectarianism was already a cancerous scourge holding back growth.  Worth watching to find out.

HAH

To those unaware, some accused Canadian terrorist by the name of Chiheb Essegheiar under arrest for allegedly attempting to bomb a passenger train, is insisting that he will only agree to a lawyer who will help him be judged by the Qur'an, and not by a Canadian Criminal Code written by humans.  Most of the press coverage has been on the supposedly interesting tension between religion and law that this creates in multicultural societies.  Here's an example of such coverage. 

For my own part, I find far more interesting how inane this guy's demand is, and how divorced from Islamic traditions the underlying premise of it happens to be.  If I understand the claim, the notion is that as a Muslim, the only code under which he can be judged is that written by God himself, as contained in the Holy Qur'an.  Rules created by men cannot constrain this guy.

There is, of course, the perfectly obvious claim that the Qur'an doesn't actually interpret itself--people interpret it, but 'let's leave that aside, because the problem with this claim is far broader than this, and displaying far more ignorance of Islamic history and Islamic tradition than a mere dispute over hermeneutics.  The real problem is that throughout Islamic history, when crimes are punished in Islamic society, in a manner sanctioned by the consensus of the jurists, let me add, Sunni to Shi'i and across all schools of thought, invariably they are punished based on the discretionary power of the executive, a human being, to punish particular conduct deemed injurious to the public interest.  Not, absolutely not, on the basis of a violation of some sacred text.

Why?  Because the Qur'an, and the Prophetic Traditions with it, in fact criminalize very little, and even less that actually is relevant to the efficient ordering of a society. You can get lashed for drinking, stoned for adultery, lashed for fornicating, lose a hand for theft, etc.  Because there is no discretion in applying these penalties, seeing as how they are transgressions against the Book of God, the evidentiary standards were set almost impossibly high (by people, interpreting the Book, but again, we're leaving that to the side).  And even if they weren't, no society, even a medieval one, can exist if it has crimes on fornication and drinking, but not much else. Some of this is addressed through the administration of private law relating to homicide and wounding--allowing a victim to get the same injury inflicted on the perpetrator or to take blood money--but not all.  What does the state do if a person burns down his neighbor's crop fields?

The general attitude of jurists medieval and modern is that Islam intentionally has nothing definite and unchanging to say about that as a matter of criminal law, because criminal law must evolve from society to society and place to place based on its own particular public interest.  Where in one society something like insider trading has to be punished, in another, older one, it's unheard of. Hence the idea is a big blank space wherein the public interest is advanced through a criminal law based on the needs of that society?

And who writes that criminal law?  people.  not God, but people.  Just like the people who wrote the Canadian Criminal Code. 

And this guy wants to be judged by the Qur'an alone.  Completely idiotic. Stupid beyond words.

HAH

I recently returned from Iraq supposedly on paternity leave but in fact on leave attempting to fight for time with my kid among an assortment of grandparents (completely understandable), uncles and aunts (fine), cousins and spouses of cousins (getting a little annoying) and then wives of the brothers of a cousin's wife (who the hell are you and why won't you go away).  This left me with some spare time, which I used to begin some work on Iraqi tribal law.

The work is in its relative infancy, and there is no particular need to describe it in any great detail here and now.  But one thing that struck me, as I was attending my very first fasl in person, effectively a tribal resolution of a dispute which is usually criminal, and tortlike, in nature, was the role of the Banner of Abbas (Standard of Abbas?  Staff of Abbas?  Raya not alam, so an archaic and romantic word for flag basically is what I'm going for) at the end of the resolution.

So leaving all else aside and skipping to the end (you'll have read my future work if you want to know the details of tribal resolution), when the tribes finally reach on an agreement on precisely what the compensation is going to be for a particular harm done to one of their own by one of the rival tribes, what happens is each side ties a piece of cloth to a walking cane, referred to as the Banner of Abbas, and the deal is sealed. To break the deal, as was done previously in this case I witnessed, is to render the blood of the sealbreaker lawful for the taking.  That doesn't mean they're going to kill him, they didn't here, they asked for another fasl and demanded money and that the breaker and his father sell their home and move further away, but it's an extremely serious affair.  It resulted in serious money and effective part exile here.

So why is it the Banner of Abbas? For the unaware (white people, Sunnis, basically The Man), Abbas is not the uncle of the Prophet, as kids, we Shi'a barely know that guy exists.  He's Imam Hussein's half brother, son of Imam Ali, who died in Kerbala.  Legend has it he was carrying the Banner of the Prophet, which the Prophet had given to Hamza, then Hamza had died and the Prophet took it back and gave it to Imam Ali, who gave it to Imam Hassan, who gave it to Imam Hussein, who gave it to Abbas, and Abbas died with it in his hands on the barren sands of Kerbala, hence it being the Banner of Abbas.  (There are problems with this latter part of the story.  If Abbas died in battle and was one of the greatest warriors on Imam Hussein's side fighting in the battle of Kerbala, what's he doing carrying around a flag?  I asked, and was told he was such a great warrior, he could fight with a sword in one hand and a banner in the other better than anyone else could with just a sword.  Of course, that's not the relevant question.  The question is whether Abbas could fight better with a banner occupying his left hand or, say, nothing, or a shield, or something useful in it instead.  After all, Usain Bolt doesn't go around sprinting with a 10 pound backpack on his back because he's still faster than other people when he does.  Plus doesn't Abbas lose his right hand in the battle. So is he holding a flag and a sword in his left hand then?  Why? Is there no safe place to leave the flag?  But these are questions you don't ask among Iraqi tribes from Amara, so I let it go.  Banner of Abbas it is.)

In any event, you swear the deal on the Banner of Abbas, and to break it is to court serious discord and to risk your life.  Hence the cloths are wrapped around in earnestness and handed to a descendant of the Prophet, a sayyid, who wearing the black turbans only sayyids can (you're better off with a Crip tattoo in Blood territory than wandering around the south of Iraq with a black turban if you're not a sayyid), solemnly pronounces the deal sealed.  

Of course, as a Realist, you can be somewhat skeptical of all of this. First, that's a dude's walking crane, that's not the Banner of Abbas, he probably bought it for ten bucks a day before.  Second, those are random white kerchiefs they're tying onto it, they aren't the Prophet's flag.  What the heck is wrong with you people, one might ask?  You are finalizing a deal, you aren't refighting the battle of Kerbala.

Yet formalisms have their place, and perhaps none better than in the law of contract, as well as accord and satisfaction, which is more or less what this is, when a deal is finalized.  For the essential problem that lies in the contract is that we want, indeed in the common law, expect, vigorous negotiations with no constraints prior to the finalization of the deal.  One can always back out, one does not have a good faith obligation to continue negotiations, and the parties are given maximum opportunity to use whatever leverage they have to strike whatever deal they like.  The world is better, the classical theory runs, when the parties are left to decide their own interests as they see fit.   

But, of course, contracts don't work unless, once struck, they are binding.  Where a moment earlier to negotiate a better price is sharp bargaining, perhaps with hard elbows, to do so a moment later is to hint at breach. Where contracts and deals contain a moral element (as they generally do outside of the law and economics hegemony of the American legal academy), it is to court accusations of perfidy to do that.  So the more that line gets blurred as to when the contract is formed, the harder it is to separate the breacher from the sharp negotiator.

Plainly, the Realists didn't care. The Uniform Commercial Code doesn't concern itself with when the contract is formed, only that it is, however it is, even if you can't find the offer and the acceptance, and it dismisses the ancient formalities for creating contract formation, the medieval seal, as being only so much voodoo.  Even signatures aren't taken particularly seriously, whatever authenticates the document is good enough.

Yet of course the Realists weren't working among traditional tribes whose capacity for violence is significant and whose resort to it without state sanction is frequent.  To adopt such a rule here would be to court significant danger, as debates devolved into who agreed to what and when they agreed to it. Better yet to seal it, better to engage in formalism, to play the voodoo game, to pretend that somehow some guy's walking stick is the Banner of Abbas, and to break a pact signed on it is to earn the anger of the Moon of the House of Hashim, the mighty hero who could wield a sword with one hand and hold up the Standard of the Prophet in the other.  The stories have their uses.

HAH        

I was reading last night through the leading commentary on Iraq's Personal Status Law, written decades ago by Dr. Ahmed Al Kubaisi in connection with an upcoming casebook on Islamic Law that I am coauthoring with Mark Cammack of Southwestern Law School.  Therein, I found a most fascinating passage that I think reflects particular biases that are relevant in contemporary American discourse, specifically on the question of same sex marriage.

In the passage, Kubaisi is objecting to a provision of Iraq's Personal Status Code that grants to the judge the power to permit or deny a multiple marriage based on specified crtieria.  Specifically, Kubaisi says:

Then many families will resent the judiciary interfering in their most private of affairs.  Perhaps the wife has a problem that leads the husband to take another wife.  Yet he is fair, and capable of supporting more than one.  But he would disdain the fact that he or his wife would become the subject of inspection or investigation.  So he accepts deprivation and oppression of his self to remain with his sole wife without purpose or profit, so induced rather than to go to the court and to disclose the secrets of his house.  Hence the limitation of mulitple [marriages] in this manner or another results in interference of the judiciary in the right to contract, and the destruction of the human will of the man and the woman alike.
 

Now there is some implicit sexism in some of this, and I will return to that shortly, but I want to leave it aside for now, for the passage could well stand without it.  For now, render the example that of a woman who wishes to take a second husband if you like.  The point here is that Dr. Kubaisi is outraged by the idea that the state would dare to tell consenting adults who wish to form a multiple union that they are not permitted to do so unless they undertake some form of rigorous inspection.  It is, to Dr. Kubaisi, a state restriction of a basic human freedom.

The connection to contemporary American debate is obvious enough.  Opponents of same sex marriage have seized upon this, but in reverse, given the very different American biases.    Aha, say Lindsey Graham and Rick Santorum.  So you say that same sex marriage must be permitted because to do otherwise would restrict the rights of loving and consenting adults?  Well what about plural marriage then?  Why are we restricting the rights of three consenting adults to do what they will?  What can justify such a thing? 

Let me pause for a moment and leave aside other comparisons made by same sex marriage opponents to bestiality and to child molestation, for which distinctions of category are easy, and to which objection as comparison to my mind justifiably takes the form of outrage.  Human beings can love animals, and vice versa.  The love isn't comparable to the love two humans have for one another I would strongly maintain.  And once we move into the rape of children, the matter devolves into offensive and despicable absurdity.

But not so with polygamy.  I don't imagine Dr. Kubaisi would disagree with Lindsey Graham, he'd say of course three people who love each other should be able to form a union together.  Tell him same sex marriage then, and he'll probably be about as flabbergasted as supporters of same sex marriage are when trying to distinguish polygamy.  Usually, what emerges among American liberals is the reverse--a reflexive bias against polygamy that is more stated than defended. 

Can you believe what Santorum said?  He said polygamy is the same as same sex marriage! How offensive to homosexuals!  Or Jon Stewart deriding this as being a "slippery slope argument" which ends in bestiality.  All of this is based on an unspoken presumption, that somehow something is less legitimate about plural marriage than same sex marriage, and then less legitimate still are men and horses having sex.  Hence, the "slope," meaning first they ban M-1 tanks, then they ban assault weapons, then they ban steak knives and we can't eat steak anymore.  Each step follows from the last.  Reverse the presumption, and the result is quite different. Replace the word "homosexuals" with the word "polygamists" in the first sentence of this paragraph, and I am sure you have Dr. Kubaisi's view (i.e. comparison of the two is offensive to the polygamists, not the homosexuals).
 
For my own part, it's hard to see why one or the other is any greater or lesser an expression of human love, perhaps because I have my own cultural biases.  Like Dr. Kubaisi, I am a Muslim and an Iraqi and I have seen multiple unions, though admittedly in Iraq as a cultural matter there is a social stigma attached to them and they are deemed rather vulgar if legal, as marrying your first cousin would be in the United States.  Like Rachel Maddow, I'm an American, and I've seen those loving unions too.  I'm not at all interested in participating in either form of union myself, but I do wonder why we cannot tolerate both in our midst.  When I hear American liberals therefore assault multiple marriage and defend gay marriage (and assault those who equate them), what I hear is a defense of some forms of bigotry, and an well articulated attack on other forms.  As in, we're allowed to hate weirdos, but gays aren't weirdos, only polygamists are.  And stop calling homosexuals "queer", that's offensive.  It makes them sound like they're weird.  They're not.  It's the polygamists who are weird. All rather confounding to me as an expression of tolerance because of the unjustified limitations it imposes.

Having said that, some qualifications are in order.  First, the sexism.  I am certain that the late Dr. Kubaisi would feel quite differently about the freedom of contract as concerns multiple marriage if it was a woman who sought to marry two men.  I imagine that would be no less offensive to his sensibilities than same sex marriage, perhaps even more so.  And yet any distinction he makes based on the nature of men and women (I'm sure it would come down to that) could easily lead one to wonder precisely how strong Dr. Kubaisi's commitment to the "human freedoms" of men and women actually is. 

In any event, here we do have an important categorical distinction that is based on sensible moral differentiation.  We believe in equality of the genders, we do not believe in gender specific legislation, and hence we can immediately dismiss as not being remotely consistent with core American constitutional principles any sort of multiple marriage that is not equally granted to men and women.  As Mitt Romney says, what is sauce for the goose is sauce for the gander.  (If I might be permitted an aside, I barely understand this reference.  What is gander sauce?  And how does one even know the gender of the fowl they are consuming such they could even attempt a different sauce based on it? Very confusing.)

Connected to this, one might be able to argue that the ban on polygamy arises because of public interest concerns respecting the rights of women.  That is to say, even if we were to write a gender neutral multiple marriage law, the reality is that overwhelmingly, the arrangements will involve one man, with several women.  When we consider this, and its longer term social implications, we must give pause.  I'll admit that for a long time, until somewhat recently, I've held to this view. And to some extent I continue to do so in places like the Middle East, where the state is weak and the position of women more vulnerable.  I simply don't believe that many first wives in that situation consent to the second marriage, but they feel powerless to do anything, legal rights to deny or no.  Women might have influence to block the second marriage, in fact often they do, but because of social stigmas against polygamy, described above, or because their own male family members will intercede on their behalf, not because of a court requirement.  In this environment, much danger lurks in permissibility and it concerns me greatly, so much so I'd rather see no polygamy than tolerate consensual forms.

I'm not sure, however, that in the United States, this is necessarily a basis to prevent gender neutral consensual multiple marriage if we're going to start looking at these things as vindicating core principles of equality, as we do with same sex marriage.  Surely we can do other things to protect women that would be, to use the Supreme Court's phrasing, more "narrowly tailored" to advance the compelling state interest of protecting women from mistreatment or abuse than to prevent all multiple marriages.  I simply cannot see how one can deny, say, a third spouse a right to see a first spouse on the deathbed in the hospital because we are worried about other women in other unions being mistreated.  Or I no longer see it that way I suppose.  Or perhaps softer yet, can we at least have a conversation about it?

A final distinction is one of administrability.  Surely there must be limits on the numbers of people in a marital union or the entire matter will devolve into farce.  Surely some people deserve hospital rights that others don't and if one declares their entire village of 600 to be one big marital union, the system can no longer be administered because we cannot grant special hospital privileges to 600 people.  One could deal with this partly through a clear standards on what we mean by marriage involving a shared life together. One cannot really be having a shared life with that many other people, many of whom they may never even have seen or met or know their names.  But bright line rules are helpful, perhaps vital.

Again, however, there's no reason that two is a sensible bright line, it seems quite self evident that families share their lives together with more than two people in them.  Absurd to suggest to anyone in a family of five that they only love one or two of their fellow immediate family members.  So I suggest five members of a multiple marriage as presumptively valid, and perhaps 10 if shared life can be demonstrated. Hah, you say, five you derive from the Islamic rules permitting a man four wives, you've just adapted it to modernity.  True, I will concede, but pray tell, where does your number of two come from?

I suppose in the end I don't dispute that values in modern American society are "heteronormative" as it were.  But they are also "Christionormative" as well, and it's not clear to me why we can't talk at least about that too.

HAH