The Obama Speech and the "Muslim Perspective"
The response I get, not always (not from my students in particular, who are far sharper) is some sort of relief, Obama has won over the Muslim world, something about Pakistani allies, or Indonesian politics, or Turkish secularism, or Iranian revolution, or something, that always leaves me puzzled. I just said I know about Iraqi elites on this question, I wonder, why in the world are people asking me what people think about it in the Swat Valley? Where is the Swat Valley exactly anyway? Why is it that Americans don't see a vast and varied Muslim world, a mosaic of peoples and nations, bound by any number of commitments (political, cultural, economic) in addition to Islam?
But then again, while I often have this issue when speaking with Americans, when living in the Muslim world, I tend to see the opposite problem. (As the adage goes for those of us bound to two cultures, never more American than in Iraq, never more Iraqi than in America.) That is to say, some of the reaction to Obama's speech was entirely puzzling to me among people who I thought would know better. They somehow found it a sea change that the president was willing to condemn those who would prevent a woman from wearing a headscarf out of religious conviction. It wasn't long ago that girls couldn't wear such dress in American schools they said.
No, French schools, I told them. They didn't understand precisely what the difference was. I don't mean they are idiots who don't know that France and America are different countries, only that they couldn't process the notion that somehow their attitudes to religion would be that different. Two Western secular states with Christianity the predominant religion, it seemed to them it was the same. So Obama was making a real gesture towards Islam, they only wondered if he could carry it through before somebody brought him down.
I tried to explain long standing American principles of law and religion--that it is categorically prohibited and entirely uncontroversial that a law, any law, that prohibits a religious practice as a religious practice is per se unconstitutional and void. The real division in America is over whether a neutral law that incidentally impacts religion (say, a law that police officers must be clean shaven, derived long before Muslim men with beards wanted to join and having nothing to do with Islam) should have to have exemptions for religious practice depending on how burdensome the law is to the faithful, and how hard an exemption would be to apply. Some think the neutral law is fine, no exemptions constitutionally required. That's the Supreme court's view. Quite obviously it is not the opinion of Congress and Congress has spent some time in vain trying to find a way around it. They can do it case by case--just grant legislative exemptions--but a universal one based on a different theory of religious freedom doesn't work, since the constitution sets those parameters and the Court decides what the constitution says.
When I explain this, they listen patiently and well, but it doesn't entirely register. Again, they are lawyers, and somehow unlike so many Americans who don't seem to understand that Iraq has law schools, they do graduate some pretty good people (and like us, some morons) and they can understand judicial supremacy over interpretation, and the difference between a religiously neutral law and one targetting religion. Somehow the US conventional wisdom on the Iraq legal community holds it in such low regard that the US public, and even the American legal elite, can somehow be convinced an American law professor with no real knowledge of the country or its law could be flown in by the US and write the Iraqi constitution. I can't imagine what you would have to think of Iraqi lawyers not to listen to such a story and burst into hysterical laughter, though I should say the folks who were on the Constitutional Committee, and their legal drafters, are nearly all my friends by this point, and they aint doing much laughing. More on this at a future date and time.
So they are smart, they are lawyers, they get what I am saying, but they don't get how it can be true. The West hates Islam, and here I am telling them consistent US policy has been to protect religion. It doesn't mesh. Part of this has to do with various aspects of US foreign policy that resonate pretty poorly in the Muslim world, but part also is a massive ignorance in the Muslim world that the West is composed of many pieces and that not all of these pieces fit together as one might think. It's not "France bans headscarves in schools, America sends foreign aid to Israel, therefore America bans headscarves in schools." It's not pro-Islam and anti-Islam. what leads to foreign policy decisions, and religious freedom decisions, and immigration decisions, are tied up in any number of factors in both the US and France that lead to entirely different conclusions on these questions that cannot possibly understood on the single spectrum of pro-Islam and anti-Islam. And that's obvious to a Westerner, but not to a Muslim in the Muslim world.
Much like a Muslim scratches her head and can't understand why it is that Americans think they can understand why Islam can't be understood on the one dimensional spectrum of proAmerica and antiAmerica. It's hard to know what to make of the inanity of the American media on these questions, just in the context of Iraq. First, it's the Shi'a hate Saddam, and the Sunnis are in insurgency, so the Shi'a are pro-America. What a relief. But then wait, Sadr hates America and some Sunni elites want to work with the Ambassador, reverse that, make it Sunnis pro-America. but then Qaeda is Sunni, hold off then, Shi'a pro-America again? No wonder it's confusing to people, entire sects with their multivariable interests and spectra of ideas are being thrown into a single dimension on a single question that most of their adherents probably don't spend ten minutes thinking about.
As I said, happens both directions. Just the way things are, I suppose, depressing as that is to say.
HAH
On the Dangers of Legal Formalism, from the Perspective of Iraq
In Iraq, the idea that the law, and the interpretation of the law, is first and foremost a political and ideological matter is largely dismissed as not only as fallacious, but also as dangerous. It is a world where no neutrality is possible, no answer is right, rules protect none, but rather all is left to the whims of people in black robes to muddle about as they like without any meaningful constraint. This of course is not very far from traditional complaints of legal realism, whatever the merits of such complaints, and I suppose I can see why people find such comfort in some austere, blind neutral presence known as "law" that people are supposed to discover rather than invent.
Most of us who consider ourselves in the realist camp don't talk of formalism as dangerous so much as naive ("normatively appealing and descriptively preposterous" was how a colleague of mine when I was at Columbia once described Ron Dworkin). That is, we aren't saying it's good or bad that law in creation and interpretation is politically and ideologically motivated, only that it is. But what is wrong, one may ask, with failing to recognize it, with living within the myth of a formal law that lies somewhere pure and untouched waiting to be discovered by strict application of neutral interpretive principles?
In Iraq, I think there are dangers. Most prominently, issues that are clearly political and ideological in nature are raised as technical ones--by all sides. So then what happens is one side sets forth its argument ("oil and gas may be controlled by regional authorities for the following reasons"), and backed by a pretty decent legal position. Then the other side gets up and makes a pretty good argument on the other side, using similar sources and coming to precisely the opposite conclusion.
To most of us, this is unremarkable. Only the strictest formalist would think it never happens. Yet Iraq is filled with the strictest formalists. They keep providing their arguments, marshaling their sources, presenting them with increasing levels of eloquence and eventually desperation and can't understand why the other side is too biased to see the clearly correct answer. Ideological bias, it seems, like Swift's description of satire, is a glass where the viewer sees all but himself. It is harder to see the other side when you think there is only one correct answer. Because if there has to be one correct answer, then of course your side has to be the correct one. Which means the other side is wrong. That the other side might just be looking at it differently--she's of an ethnic minority and is scared of majority rule that will result in some form of persecution--doesn't work in this mindset. It's not a question of what she thinks, it's a question of the LAW, and the LAW properly interpreted means something else. Similarly for the minority, the perspective of the majority member (he wants to make sure government works efficiently and that the will of the people is largely respected in organizing government) isn't viewed as a valid reason to come to the proper interpretation. He's reading the LAW wrong, which must mean he secretly hates the minority. Otherwise why would he persist in his error.
This is even extended into law creation where even the American public, formalist as it is in its understanding of law, would never place it. Americans generally think politicians with their biases make law but that judges are these neutral automatons who just pronounce it. Many of the Iraqi elite think somehow much (not all) of lawmaking is bound up in technical minutiae as well. That's not to say that all ways of drafting laws are equal, clearly some are better than others, but whether or not to give a Prime Minister emergency powers, and of what sort, or to define a capital's boundaries, and how, or to grant regional autonomy, and in what form, is quite often not a question of technical expertise, but rather of simple pure political preference. Sometimes Iraqis agree with this assessment, depending on the law or the dispute in question, but often they don't. The other side just isn't drafting it right, they are making mistakes, and technically it's just poor. The real problem isn't technical though, it's purely ideological. Specific examples, alas, will have to wait for a later date.
To be clear, and to pull back from a more extreme position, I am not saying that formalism is the only, or even the principal, factor involved in disputes of this sort. clearly the inability of different sides to recognize the legitimacy of the other is a very serious problem in any place of ethnic or sectarian tension. Clearly, such tension is not a product of legal formalism, in fact it exists even in societies with a near total absence of law. But still, I do think a formal approach to the law helps to exacerbate the problem among the elites at least, because it leads them to conclude there is a right answer, and the other side is terribly misguided in not seeing it. Once you can see that both sides are right, that all sides are right, that there is no law to find, only one to create, by humanity, with all its foibles and biases, it becomes all that much easier to understand the other side's point of view.
HAH
Death in the Court and the Hawza
Yesterday during my one day off this week my friend Muayyad and I had a conversation that inspired this post.
There are times when judicial and juristic institutions demand specific changes in historical approach, and are markedly successful in gathering some level of already existing social momentum in favor of those changes. Those historical moments are always well documented. We all know the role of Brown v. Board of Education in the civil rights movement, those aware of Islamic movements know of Sadr's work, and Khomeini's, inspiring a massive change in the Shi'i Muslim establishment to make the clergy more relevant to civil society.
But there are other times when these same institutions take ginger steps at some forms of social change that end up falling flat on their face, and then are quickly forgotten. We would do well to remember those times too, so that we can understand that the power of the people in black robes, or wearing black turbans, as the case may be, is, like all earthly power, limited in its scope.
The great American case demonstrating this phenomenon is Furman v. Georgia. I polled my law students, or some number of them, and was surprised to see how few of them knew about the case. But in it, the Court had declared unconstitutional all death penalty laws on the books, and instituted rather stringent requirements to reinstate the death penalty to lessen its arbitrariness. It seemed that what the Court, far more liberal then than now, was hoping was that this was the end of the death penalty. But it was not to be, as a slew of states with remarkable speed reenacted the death penalty and the Court, realizing it had gone a bit too far, began to look at this new set of statutes with a bit more leniency than previously. there is far more evidence now than in 1972 on the arbitrary nature of the death penalty regardless of the changes in the statutes, yet the laws stand.
The Shi'a Muslim example relates to a different form of death--smoking. It seems that just about the same time as the Supreme Court was on its death penalty ban, the Shi'a clergy, or some of them, were moving aggressively against smoking. The two great scholars of the Najaf Hawza, Muhsin Hakim and Muhammad Baqir al-Sadr, issued rulings making it a sin to start smoking. Like all Realists (and Sadr was nothing if not a Realist, or so my scholarship contends), Sadr was aware of the sociological consequences of his rulings, no doubt knew an absolute ban would be near impossible given the number of tobacco addicts, was convinced that this horrible practice was deleterious to the community and to those in it, and hence the ruling. Smoking destroys the body and is therefore a sin, but some dispensation is given to current addicts on the grounds as I recall of hardship, but I don't have the text before me at the moment. It was quite a buzz at the time, however, and much was written about the near demise of smoking among the Shi'a faithful.
But the only people that seem to know this are fuddy duddy pointy headed annoying scholars who keep reminding everyone in blog posts (that's me) and old people (that's my friend Muayyad, and my father too). All this talk disappeared. It just didn't work. The layfolk didn't take to it. They adored Sadr, and Hakim, seemed to listen when Hakim banned the Communist Party, but this they didn't bother with. It probably seemed less important, not quite as fundamental, and really, the structure of the ban made it hard to absorb. How terrible of a sin can smoking be, the young man might think, if my parents can do it and it's not a sin for them. About as effective as the Americans who drink, and then are shocked at the behavior of their children at frat parties. Obviously the motivations, the reasons, the basis for the rulings of Sadr and Hakim are different entirely, but the point is, it's hard to implement a rule that doesn't apply to some and applies to others who don't seem all that different from one another.
This could re-emerge at some point, even as the death penalty begins to lose favor in America, so smoking might lose favor in Iraq, though to be honest right now I haven't seen it, clearly Iraq hasn't caught on that Western trend. The fact that the smoking ban for Iraq's young is now associated with Al Qaeda, and for all I know they beheaded you for a cigarette, doesn't help. But one never knows. Still, it was an idea, and a good one, but well before its time. Not the first or last time that will happen, neither in the US Supreme Court nor in the Najaf Hawza
HAH
Freedom of Religion in Iraq and the United States: An Interesting Case from Judge Sotomayor
I have been reading recently an old case of Judge Sotomayor's, Ford v. McGinnis, that I think helps to reveal well American biases when it comes to the intersection of law and religion as compared to a nation such as Iraq, where religious freedom has come to mean something different.
In the Sotomayor case, a prison inmate named Wayne Ford sued the New York State Department of Corrections, basically for not getting a meal on the festival of Eid ul-Fitr, to commemorate the end of Ramadan. The case has a few aspects to it, but one of the grounds for dismissal in the lower court was that it is not an Islamic requirement that one have a meal at Eid ul-Fitr, which is basically true. However, Ford himself seemed to have his own genuine and sincere belief that this was an Islamic requirement. Sotomayor, writing for a unanimous panel in the Second Circuit and drawing on Supreme Court precedent, said that sincerity of religious belief was all that the court should look into. Given that Wayne Ford was sincere in his religious conviction that he was sinning if he did not have a meal at Eid ul-Fitr, then that was enough.
This is fairly standard stuff, in fact if the Court itself is to be believed, the defendants did not contest this particular point very strongly. And the reason most often given (and given in this case) is that, and I quote (from two cases, including Ford), “courts are ‘singularly ill equipped to sit in judgment on the verity of an adherent’s religious belief.’” Therefore, they have no choice but to operate on the basis of good faith on the part of the litigant. So long as there is good faith, then there are really no limitations on what the religious belief can be (in theory there are if an opinion is so bizarre or outlandish that it doesn’t qualify as religious, but I’ve never seen this).
Now the Iraqi lawyer or judge or lawmaker or constitution drafter looks at this and is positively perplexed. Who is asking you to determine the verity of religious belief?, the Iraqi asks. No one asked you to decide if the Prophet Muhammad is God’s Last Messenger, it’s not the verity (ie truth) of the religion that is in question, it is its content. And to know that, you just ask the authorities. No real Muslim authority says you have to have a special meal on Eid ul-Fitr. Pork is forbidden. For the Shi’a, clams and oysters are forbidden. This isn’t terribly hard, it’s pretty easy to find the authorities in the faith and ask them. Sure there will be some gray areas (Shi’a scholars split on whether chess is permissible, for example), and then of course it might make sense to just favor the litigant’s claim as a real one, but, if he’s just saying things the authorities universally disagree with, how hard is that to find out? Certainly much easier than trying to tell whether or not Wayne Ford is acting in good faith. THAT’s the really difficult exercise.
And so when Iraqis draft the constitution, they make clear that family law and inheritance law (known as “personal status”) are going to be determined by religion. And then they have no problem with the judge applying the religious rules. They figure that’s not very hard. They certainly don’t think they are deciding which religion is the right one, they’d recoil at the very notion. They are perfectly happy to have entirely inconsistent religions, some belonging to the scriptural category and others not (in departure from sharia) create their own rules of family law, and the judge will apply them. The judge sees it as his job in such a case to figure out what the rules of the religion are, through consulting with the authorities, and then just apply them. I know well by now the drafters of the Constitution who put this clause in, I don’t know one who thought it required an inquiry into the verity of religious belief.
So is the Second Circuit, and Judge Sotomayor, just simply wrong then? No, just a little incomplete. That is, it’s not just that the Court can’t inquire into the verity of religious belief, everyone agrees with that. It’s also that when in the United States we talk about “religion” we tend to define that rather broadly and individualistically in a manner that most of the rest of the world wouldn’t recognize. Once you do that, then the rest follows naturally, for to determine a traditional religion, or a traditional interpretation of a religion, is the only applicable one is to favor it somehow in an unacceptable fashion, to “determine its verity” if you will. So if a woman says she thinks Islam requires one to wear a bikini, well it is not for the Court to decide that more traditional authorities read the Koran better than her, and if she says Islam orders her to burn the Koran, well we can’t decide that traditional authorities are using the right book and she is using the wrong one, we have to respect all viewpoints. The end point, the only logical endpoint, is, religion has no content beyond a good faith belief in the transcendental.
An Iraqi would recoil at such a notion of individualist protection of religion. Let freedom of expression protect individuals if they want to think odd things, freedom of religion, and deference to religion, is meant to protect real religions, and we know what those are for the most part. (Hindus in, Santeria out; Judaism in, Scientology out, and so on). The American definition renders Islam and Christianity devoid of all content, and that is quite troublesome to those with more traditional understandings of what religion is and what is to be protected. And once you have THOSE biases, then the rest follows naturally as well. You don’t decide whose religion is right, but you identify the relevant religions in your country, and the right authorities, and you let them decide what the rules are, and you go from there.
Each perspective has its advantages—the American clearly is far more inclusive and tolerant of the possibility of religious change—while the Iraqi takes a view of religion that is I think more in keeping with the expectations and needs of the vast majority of the devout. In any event, it isn’t my purpose to favor one over the other, only to point out that when one talks of “freedom of religion” or “respect for religion”, that term, as oft used as it is, can mean quite different things to different people.
HAH
Islam and the Environment: Realism and Rhetoric
Judging from all the talk on the subject, there seems to be a rather common belief among Westerners that Islam is in some deep and fundamental sense far more enamored of the environment than the West. There are any number of reasons that this might be quite commonly believed.
First, there is the fact that the Qur'an clearly does seem to show on balance rather high levels of respect afforded to the environment. Humanity is described as the "steward" of the earth throughout the Qur'an, the signs of God are often wonders of nature and natural beauty and God refers to humans as part of a grand scheme of obedience to the creator that also includes the heavens and the earth.
Second, there is the fact that Sayyid Hossein Nasr by mere force of his intellect and his personality (he's at GWU) has promoted these views quite strongly as part and parcel of an Islamic civilization, describing environmentalism as the result of a loss of spirituality in the world in favor of materialism and the idolatrous worship of material gain. (He is juxtaposing his own vision of Islamic civilization to Western, he's not suggesting Muslims necessarily adhere to this vision now).
Finally, it has to be conceded that environmentalists are on the left, and the left wants to find common ground with Islam, even as too much of the right wants to dismiss it as demonic and evil. We've become another front in the culture war, I am afraid, and green Muslims helps out one side.
Overlooked in all of this is the fact that you don't have to travel very far in Iraq, or Indoneisa, or the Hajj in Mecca, all places I have been, to get the sense that by and large the Muslim world isn't very concerned about the environment. There is trash everywhere. Littering is not just commonplace, it's considered normal, as opposed to say, bribing, which is commonplace but still considered bad. It was depressing to hike the Mecca mountains to the Hira cave, where the Prophet received the Revelation. It looked like the world's largest trash pit (and no, it's not sacrilege for me to say that, it's descriptive. What is sacrilege is to contribute to making it a trash pit.) Sure carbon emissions tend to be lower per capita, but that's hardly because of consciousness of global warming, as opposed to, say, no money for a car.
Moreover, it's not like the Muslim clerics and jurists are out there telling people to quit throwing their damn McDonald's wrappers on the street and leaving them there. God forbid you are a woman walking around without a veil, now THAT's scandalous. Ignoring all sorts of environmental rules and regs? Well if it is a sin, the learned devout have largely held their tongues.
Now to be clear I am not suggesting that somehow Islam PROMOTES environmental destruction. It doesn't, it is largely however, in practice, indifferent. And that's not a surprise, Muslim countries are generally (though nto always and I can't explain what the hell the deal is in the Gulf) poorer, and sorry green friends but generally speaking environmentalism is a rich man's issue. You feed your family, you provide them education and shelter, you keep them safe, and once that's all settled comfortably (typical in the US, rich by world standards) then you start thinking about gorillas in the Congo. I think about them a lot, I got to see them. My cousins in iraq haven't even seen a camel (yes it's an arab country, we don't use them for transportation anymore though). They are worried about explosions every night. Where do you think gorillas in the Congo lay on their scale of issues of concern?
And Nasr may be right, there's a lack of spirituality problem too. I don't mean to disparage that. All I mean to say is that if you really want to talk about Islam and environmentalism, if you really want to create green consciousness among the Muslim populations of the earth, then sure the Qur'an helps set up the argument, but first, you've got to make them richer, safer and more prosperous. Leaving aside some of the world's true saints, it seems self evident that spirituality, indeed environmental respect in any form, is pretty hard to come by otherwise.
HAH
The Liberal Failure of Iraq
If we start with conservatism, traditionally it is highly suspicious of the ability of human beings to use reason and force of will to effect positive change in society, as per Burke's criticisms of the French Revolution, which help to form the intellectual underpinnings of the modern conservative movement. Unintended consequences, as well as the limits of human predictability, are emphasized as being the result of massive change, and the values of predictability, certainty and stability are put forward as reasons to maintain the status quo. In addition, there is sort of a cynicism of human nature and human society being able to effect very much change very quickly. A friend and scholar of Burke once pointed out to me correctly that I've spent 5 years trying to lose 35 pounds and failing. If I can't do that, what makes me think people are going to undergo massive social change easily, comfortably and without consequence? The analogy is a bit facile, but nonetheless I've always valued that form of conservatism, not because I adopt it, but because I think it's good to have that noodge, that skeptic telling you that you are trying to do too much too quickly, that whatever you are thinking is not going to work. One must listen to that voice, even the liberal, because it is an undeniable truth that some appalling horrors have happened to the world in the name of effecting massive change. Pol Pot's Year Zero, Mao's Great Leap Forward are two examples where some messianic and maniacal dictator got it into his head that he could fix the world in an instant, and killed millions and ruined a nation in the process.
So to that conservative, change should be gradual and incremental, and delivered only when necessary. That would necessarily lead to some level of skepticism about a large government, and an extensive regulatory state, of course, but the reason for that is because large governments assume that they can somehow control events well by planning an economy or a car company, and the conservative doesn't really believe people can do that. It is a resounding "No we can't", a belief that if you think you can change the world in some grand fashion, you're probably just deluding, and flattering, yourself, and it's likely to turn out pretty badly.
But what began as skepticism on government as a consequence of favoring status quo over rapid change seemed in the context of Iraq to have turned into some grand messianic belief that smaller governments are going to ipso facto bring about peace and prosperity. So all of a sudden the consequence of conservatism became its cause--massive change WAS okay, so long as it brought about private markets and minimal regulation. And in fact, if you did it quickly, all the better. Somehow the suspicion that people don't change that quickly, that if you start messing too much with what is, you end up doing more harm than good, that it is an arrogant and fundamental falsehood that really smart people can somehow make the world better in an instant, disappeared. And these folks with their messianic beliefs in remaking the world without unintended consequence and human folly and limited abilities of predictability, and their complete contempt for the core conservative values of predictability, certainty, and stability, threw out a legal system and tried to do something more in core with the messianic beliefs--small government, limited regulation and the like, and failed entirely miserably.
This helped move the Republican Party to the wilderness where they seem likely to remain for some time, but I don't think it signalled a death knell to conservatism. In fact, one could argue that it is a pretty good example for conservatives in the more traditional sense to highlight--you can't just go to a goat farmer, tell him he's liberated, show him the way to the stock market and expect him to go trade futures. That's dumb. No idea what happens when you try to just deregulate the whole place, the Burkean might say, but it's probably bad, and in any event unpredictable and aren't we better with what we have. It wasn't the Republican way, but it's not clear to me that the Republican way was really the conservative way. When Buckley said he'd rather be led by the first 400 people in the Boston phone book than the Harvard faculty, yes it was a dig at the Harvard faculty, but I think it was also intended as a traditional conservative's skepticism that smart people can just go about fixing the world and his conviction that their arrogance will do more harm than good. I don't think he meant, as was the Republican approach in Iraq, that you can just replace the Harvard faculty with the Heritage Foundation, let THEM govern, and it's the way to go.
But there's another side to it, which is that we liberals ironically throughout the entire Iraq period, really from the outset to now, have been saying things that are almost entirely at odds with our own convictions, and in fact better representations of conservative values than liberal. "Yes we can" is hardly what you hear from the left on Iraq, it's "get the hell out, the damn thing is hopeless." The notion that America can effect change in Iraq is met with extreme skepticism.
At some level, it is fair for liberals to say that their belief in "yes we can" doesn't mean we can do anything anywhere anytime, and so therefore the Iraq experiment was too much. But that's a copout, because the fact is that any change, no matter how incremental, is viewed as a necessary failure in Iraq, and as something that won't work. The left declared the surge a failure an hour after it begun, and even after this prediction was proven demonstrably wrong, indicated that perhaps it led to increased security, but it didn't lead to political compromise. This, it was said , was impossible. Then when people like me join projects intended to help Iraqis revise the constitution and achieve greater levels of consensus, the response from the left has been generally derision, and a belief that the whole thing is impossible because there have been no compromises to date. There is a govenment, operating under a constitution, and passing laws, and somehow we're supposed to believe that nobody has compromised to make this happen. When certain questions are delayed, the left has emphasized them. Every gain in security force capability is matched by the left's insistence that they remain generally unprepared. Every legislative achievement is countered by the fact that really hard questions remain. There is a smugness in this, a determination to see failure, and I think almost a secret desire to see it, to demonstrate that George W. Bush was wrong about Iraq, which I guess makes them right.
Look, they might be right, only an idiot would see the parties are too intransigient at this point to make a final solution on very pressing problems possible,and that everything from corruption to infrastructure degradation make it a hard case to believe in. However, in being right, they are on the right, in the sense that gone, in the context of Iraq, is the belief that any good might be done by America, even with a Democrat in office. Gone is the Ghandian sense that one must be the change one seeks, replaced with leave them to fight among themselves. Gone is the faith, and the hope, and the concomitant sense that in Iraq there are 25 million human beings and let's see if there is anything we can do because we can do great things, replaced with the more cynical notion that the nation cannot be saved.
If it was because of a change in conviction, that is they believed in "yes we can" saw Iraq and realized that was a mistake, it would be one thing. I don't think it is, certainly most of my friends on the left don't think that in any number of other contexts. I think it's far more sinister. I think it is the left's attempt to assuage itself, and to comfort itself, into doing nothing, so that Iraq might fail, and George W. Bush might be proven once and for all wrong, So we tell ourselves we can't, and in so doing adopt a set of conservative values that, if applied to anything from the stimulus package to cap and trade carbon emissions, we would be horrified by. Iraqi human beings aren't the point, our faith in ourselves to help Iraqi human beings aren't the point, George Bush is the point. And that's not just sad, it's outright shameful.
Naturally, there are exceptions. It isn't Obama's policy, at least for the coming year. A better exception would be the US Embassy now, or at least those I work with, who are overwhelmingly fellow liberals, dedicated and believing that "yes we can" make a difference, and we must, given the consequences if we don't. The point isn't what America did or didn't do right earlier to these people, it's to help set things right now, with the faith and hope that we can. So I'd urge my friends on the left, to try whenever they hear of the daunting challenges in Iraq, whenever they learn of policy changes or steps forward or back, whenever Obama announces an effort to try to do something of good for the 25 million souls whose well being is 25 billion times more important than whether or not George W. Bush was right or wrong, to try out these three simple words, the mantra of the American left:
Yes.
We.
Can.
HAH
Artifice, Islamic Banks, and the Economic Rationality of the Devout Muslim Consumer
Allawi, who has a number of unconventional and refreshing ideas in his book, sort of repeats the mantra of orthodox Islamic economists when it comes to Islamic banking and finance. Basically, that interest was prevented from the time the angel Gabriel descended unto the Prophet Muhammad in Hira, that it is one of the few absolutely reprehensible acts condemned in the Qur'an, that Islamic civilization lived without it for centuries, and that Islamic banks are just doing a dance around this grand central prohibition because the global financial market won't actually let them do anything else if they want to survive, and so they aren't really a reflection of true Islamic civilization, but an Islamic veneer on Western civilization which values selfishness and greed as the foundation of economic activity rather than God. Now much of this (in terms of historicity, and in terms of classical interpretations of sacred text) is reductive or just wrong, but that will be in the review. It's the last piece I want to examine here--is it really the global financial world alone that is the problem if Islamic banks wanted to be more "risk sharing" as per what Dr. Allawi claims is characteristic of "genuine" Islamic civilization. I am not suggesting Dr. Allawi blames the West alone but that is the conventional view, we'd all be fine if the West just let us do our thing.
Influence of Western institutions on Islamic finance cannot really be denied. They are told they can't take interest, so they seek ways to avoid it but basically do what it is that they have been doing in conventional finance. They aren't interested in whatever a "genuine" Islamic civilization is, they are only interested in making money, that's what banks do, and so sure the spread of Islamic finance on the backs of such institutions and individuals isn't just Western influenced, it's West driven, with the Islamic part just the approval at the end by a board. That's clear enough.
But the question would still arise "fine, they can do that, but why can't a "genuine" Islamic institution nonetheless develop?" The bankers will do what they do, but if Muslims want a truly "risk sharing" enterprise, well it's not hard to do, just make one. And then you might have two parallel tracks, the banks that risk share, and those that don't and if Muslims generally looked at the latter as the trick that Dr. Allawi does, they'll just shun them and eventually they'll go the way of the 8 track. Citibank will realize there's no profit in it, and drop it, and what will exist instead are these small financial institutions that do nothing but truly share risk among depositor and bank alike.
Why that doesn't work is obvious enough as well. First you need a Fed to insure the bank or there will be runs, but let's leave that aside for a moment. It's what's going to cause the run that's the more central problem. A central issue (one issue of many) is, if you risk share, then sometimes you make money, and sometimes you lose it. And usually you lose it when times are bad. And so you have to be willing to leave your money when you're not doing so well on all accounts. You just lost your job, AND your bank account savings are dropping.
But that doesn't describe any Muslim consumer I know. The Muslim consumer doesn't want a lower rate of return in good times, though maybe they could tolerate that, but they certainly don't want to be losing money from their bank account in bad times. If one wants that kind of risk, they just go buy stock or funds, bank money isn't for that, it isn't something you want to lose when you actually need it. If you tell the Muslim consumer she's going to lose money from her bank account in the recession, well the obvious thing to do is to liquidate and stick the money in a mattress until things get better for her to use to weather the storm. But you can't have that or the bank will suffer a run. The Muslims all have to keep their money in, and keep losing money from a bank account. If people willing to do such a thing existed, it might work, but I don't know them, so it won't.
You could say it is because the Muslim consumer has been afflicted by Western greed, or you could say she is just acting rationally as any economic actor does. But however you phrase it, the reality is that there are as many bottom up reasons that a real risk sharing institution could never work as an Islamic bank as there are top down ones.
HAH
Islamic Finance and the Economic Crisis: Facts and Fallacies
First of all, the premise of the question is based on a fallacy in logic. The fact that X could be avoided if Y is done doesn't mean Y is good, as its consequences could be far worse than whatever X is. That is, it is obviously true that we would have had no banking or financial crisis if we had adopted the fiscal policies of Marx, Lenin and Mao. That doesn't necessarily make the adoption of communism a good idea. My nose wouldn't be cold if I amputated it. Again, doesn't make amputation a good idea.
Now Islamic banking isn't the disaster that Mao was, but it is important to understand its current limits. In any reasonably developed economy, it functions largely within financial systems dominated by conventional banks. There are any number of commonplace transactions in any developed economy that are impossible in Islamic finance, or at least highly controversial. That's okay when other non Islamic banks are there to do those transactions, it's a much bigger problem if nobody can do them. Something as fundamental to modern banking as the Fed doesn't work very well under Islamic finance principles. Takaful, the standard Islamic insurance, won't work, since the Fed's guarantee is effectively backed by the taxpayer, and takaful relies on the fiction that those paying the insurance are giving money charitably. Futures trading is just about impossible, which would wreak havoc in particular industries where the future is necessary to hedge risk. (An orange juice manufacturer needs to trade in futures to hedge the risk of a hurricane, which will send the price of oranges skyrocketing). The same might be said of options which are highly controversial.
So to take the latter two examples, it is true that options and futures, once forbidden, also forbid credit default swaps and the types of esoteric derivatives issued by AIG that caused so much trouble. But it's also true as mentioned above that the elimination of derivatives entirely from the market would be cataclysmic to it. It's one thing for a single bank, or some subset of consumers calling themselves the Islamic finance market, not to engage in options. It is another for an entire economy not to do it. That is like amputating a nose that's cold, rather than turning up the AC.
The second problem with this theory of Islamic finance as savior is that there are any number of transactions that helped contribute to the economic crisis that are perfectly allowable under Islamic finance principles, even if the proponents of the industry now say they are not. For example, the subprime mortgage. Adjustable rates are readily achievable under the ijara, they are done all the time. They are pegged to LIBOR with a spread for the bank's profit, and there is no limit on what the bank can take as a spread. So it just increases its spread for subprime borrowers. It adjusts its spread all the time, what's different about this adjustment? There is really nothing doctrinal at all that would prevent the practice.
Now mechanically that's clearly true. Islamic financiers don't admit it openly, but cannot deny that adjustable rates, adjusted at higher rates for particular borrowers, can be done in Islamic finance through the ijara. The argument instead is that one should look beyond mechanics, because Islamic finance is about ethics! We don't make loans that increase social ills. We don't make loans in a manner that exploits the poor. Therefore this could never happen in an Islamic finance world.
There is some almost naive idealism in that notion one might argue, but more importantly, it is really little more than a spectacular exercise in hindsight. Was there anyone who well before the bubble burst, let's say 2004, thought that record homeownership levels was a social ill? Was there anyone who thought it was unethical to extend credit to the poor at slightly higher levels than the middle class? Everyone that was a good thing, we were letting everyone own their homes, government policy promoted it, and I don't remember Islamic banks anywhere objecting to this at all. I challenge anyone to come up with a statement, prior to 2006, where an Islamic bank declined to enter the subprime market on the grounds that it created social ills, or was exploitative to the poor, or something equivalent. In the words of the thoughtful and careful Islamic finance advocate Yusuf Talal DeLorenzo, Islamic finance "dodged a bullet" in the subprime crisis, it didn't consciously for doctrinal reasons avoid this market.
Securitization of the loans made in subprime and broader markets is also possible through the creation of SPV's whose sole asset is the payment obligations of the borrower/investors. Float the shares of that SPV in the market, and you have securitized the mortgages of homeowners. Again, that Islamic banks didn't do it does not mean they couldn't. Sure now everyone will tell you it's not acceptable because Islam doesn't exploit the poor or take unnecessary risks, but nobody was taking that game at the time, everyone at the time, until the end was near, thought this was all working fine.
This isn't meant as a diatribe against Islamic finance, only against simplistic panacea cures, religiously inspired or otherwise, of what ails us. The fact is Islamic finance in its current state couldn't carry an entire economy as multifaceted and sophisticated as ours, and in any event was capable of engaging in many (though not all) of the transactions that turned out to be so harmful in retrospect.
HAH
American and Muslim Perspectives on Law, Constitution and Religion
But I can't really talk much about the project, other than to say I'm doing it, and that all will I promise be revealed to the broader world in the form of scholarship, indeed a book on the Iraq constitutional process, at a later date. (I'll keep you apprised as the time nears,, AFTER this is over.) But I can certainly talk about some insights I'm developing in a manner that doesn't reflect on the work we're doing in its specifics, and those I will try to share in the coming months. This week alone we've met the major players on the Constitutional Review Committee, as well as legal committee advisers to different institutions and groups and I've gotten a sense of things from this, and from my previous extensive exposure to Iraq, that I think bears mentioning.
The first idea that came to my mind, and that I wanted to blog about, related to the relationship of law and religion as formulated in the US and in Iraq, and how the more formalist understandings of law in Iraq lead Iraqis to massively different conclusions as to what does and does not belong in a constitution than, for example, Americans. A quick foray into the subject into both jurisdictions makes this clear.
Iraqis, like perhaps ordinary Americans who aren't lawyers, tend to think in forms and structures when it comes to constitutions and laws. So if you want something to be prescribed by the state, you make a law. But if you want it to be really important, you put it in a constitution, which is more important than a law. And so what ends up in the constitution are, in addition to obvious structural provisions (three branches, how law is made, etc.), fundamental values of the state. Free speech, freedom of expression, freedom of religion. And of course, in the Muslim world, the world famous "repugnancy" provision dictating that no law that violates shari'a (or something like it's fundamental tenets) may be enacted. This constrains law, the theory goes, and so is necessary in a true Islamic state. Talk to the Islamists here on the constitution, and I've seen quite a few in my life, and this week, and that's immediately obvious.
Now to a Realist, that's just the wrong way to be looking at this. The Constitution doesn't whomp law upside its head when there is a violation, it means nothing to say "law" is constrained by a "constitution" therefore. If you want to talk about this seriously, in the world of people, drop the abstractions and describe what's really happening. It is not 'law' that is constrained and not a 'constitution' constraining it, rather it is a legislature constrained by a judiciary. The people in black robes constrain the politicians in the suits.
This is clear from US scholarly analysis of law and religion in the US, if I might provide the following example. In our framework, the Supreme Court decided that any neutral law of general application satisfies the Free Exercise clause, meaning so long as the law wasn't intended openly or secretly to discrminate on the basis of religion, it could stand. SO, for example, pass a law that says no religious symbols on the person in school as is done in France, and that's clearly in the US unconstitutional. Doesn't take three seconds for a first year law student to explain why--it singles out religious garb and discriminates against it. "Hats okay, headscarves for religious reasons not" is bad law here. But "no head gear of any kind" is okay if it's sincerely neutral and has a neutral justification. Or "no drugs" in a manner that prevents Native Americans from using peyote in religious ceremonies. That in fact was the factual context of the case that decided this issue.
So the Native Americans can't use peyote under the constitution, it's not covered so long as there is a law out there that is neutral that bans all drugs. but of course the law can exempt anything it wants. It doesn't have to ban all drugs, it can say "peyote okay in religious ceremonies" as an exception. In fact, it was changed to say just that after the Court ruled there was no constitutional right.
The way that we American legal scholars tend to analyze this then is not "is the right to peyote at religious ceremonies important enough to put in a constitution". Rather, it's "which institution, legislature or judiciary, is better handled to protect this right?"
Fans of current US Supreme Court rules think it's better to let the legislature handle the exemptions. Look, they argue, the legislature created the peyote exemption, they make these sorts of exemptions all the time, they can handle it fine, Americans love religions, the legislature can do it. Others think that will privilege known religions over weird ones (this this group called the Santeria who sacrifice animals somewhere in Miami keep showing up in these cases) and therefore let the judges do it. I leave the debate to others.
But the point is, THAT's the debate. it's not in the Constitution because it's more important, it's in the Constitution because you want to privilege the judiciary over the legislature in deciding the issue, for whatever reason. (Legislature will not look favorably upon certain groups, decides according to political power, etc.) When you want to privilege the legislature (they are the elected ones after all), it stays out.
Turn now to Iraq. If Iraqis thought that way, or Egyptians thought that way, no Islamist party worth its weight in salt would actually be calling for constitutionalization of shari'a in their wildest dreams. There is no doubt that the legislative power is far more enamored of shari'a here than the Federal Supreme Court. Mashahadani the last speaker threatened to throw his shoe (literally, pre the Bush incident) at any law brought to him that violated shari'a. Islamists on the Sunni and Shi'i side are prevalent in the legislature. By contrast, I know a few of the judges on the FSC, I have respect for them, and no sane person would think them more eager than the legislature to ensure shari'a conformity. If you want to ensure Islamization, you don't worry about the courts, the courts are the elite, and the elite are almost never with the Islamists, but the masses often are.
So when I hear the Islamic parties talk about how important the repugnancy clause is to them, I am hearing "Midhat Mahmoud (chief judge of the FSC) is better at protecting Islam in the state than Humam Hamoudi, Jalal uldin Al- Saghir, Mahmoud Mashhadani, Bahaa Araji (Islamists all)," and I think they're nuts. And I say "well isn't the legislature more in your interests and therefore the decision left with it on Islam", they look at me as if I've suggested Islam isn't important. In the end, it's all just about how you happen to see the law, and the legal world.
HAH
Is the Afghan Shi'a Family Law Really That Radical?: A Contrarian's View
No, I have not lost my liberal, progressive sensibilities in order to suggest, as per the title, that I actually like the recent law passed by the Afghan Parliament concerning personal status law for the Shi'a minority. But I will argue something else, which is that it's really not that out of the ordinary in the context of the Muslim world, and that I find entirely baffling how it comes to be that some family law regimes in the Muslim world are considered progressive, others medieval, and they pretty much say the same thing. This deserves some attention.
For those unaware, Afghanistan recently enacted a law intended to govern matters of family law for the Shi'a minority, drafted by Shi'a clerics, which has led to a great hue and cry among human rights advocates and Western governments. I haven't found it in English or Arabic, so I am working off news reports, but Obama has expressed his distress, Italy apparently is threatening to suspend troops, and Karzai has now promised he'll review the law. He seems to have been taken by surprise by this, and while the Western cognoscenti shake their heads and deem this as proof he's out of touch (how couldn't he know!), seems to me the opposite is true. He's actually in touch, he knows what Muslim family laws look like, and he can't figure out what got the West so riled up about this one.
There are three provisions that the New York Times identified as being particularly problematic, quoting human rights observers. The first is one requiring women to submit to their husbands sexually when their husbands demand, which critics say legalizes marital rape. The second prevents women from leaving their home, as I understand it, without their husband's permission or for a legitimate reason. The third says they cannot work or go to school without a husband's permission. I tend to ignore this third objection, as it's largely a corollary of the second. We can safely assume a woman who can't leave her home is not likely to be able to find good home schooling or work from home in the home office options.
Now do I like these rules? Of course not, I hate them. Do I find them mildly consonant with my own views of what the Qur'an is supposed to demand, or what the Prophet Muhammad did in his life (his wife employed him)? No. Does any of that have anything to do with the shari'a? No, because I'm one guy in one context, a law professor in a US university, and I don't control the substance of the shari'a. And if we look to who does control the substance of the shari'a, whether it be medieval jurists or modern ones, every single one of these rules is not only common, it's virtually unchallenged in large part. And those rules have found their ways into state law.
To note the very interesting phenomenon of how different state laws that say almost the same thing elicit such different reactions from human rights groups and Western governments, I point to the family law of the Muslim state I know quite well--that of Iraq, as anyone who reads this blog is aware. That family law, which was enacted in 1959 (with a few Ba'ath era amendments) some might recall, was actually defended by human rights groups and Western governments when Islamists tried to Islamize it further. It was described as relatively progressive, and the rise of the Islamist repeal was an attempt to bring women back from some supposed rosy near equality enjoyed under Saddam Hussein. Even our law reviews have so described it on occasion, though the more sophisticated academics who know something (people like my friend Kristen Stilt) were quick to point out this was a bit naive. Bremer vetoed the repeal of this progressive wonderful law, and supposedly the day was won for women.
So how does this supposed progressive law that everyone spent so much effort defending stack up against the Afghan law? Not so well. It's better, but not by much. Article 25(1) makes very clear that a woman who leaves her home without her husband's permission and without a legitimate reason, loses her right to maintenance. The condition precedent "leaving home without permission and without legitimate reason" sounds pretty similar to what the Afghan law seems to say. If the woman were to persist, this could well be "conclusive rebellion" and under Article 25(5) forfeit the right to her dowry, and return dowry amounts already given to her.
It is true it does not say, as the Afghan law does, that the woman MUST not leave the home without her husband's permission, it merely says if she does she is "rebellious" (how do you translate nashiz--see my earlier post for that I think), and her husband can starve her, deny her the right to sleep in the home, leave her out on the street (all part of the maintenance obligation), and if she persists, take from her the money he gave her as insurance against divorce, and leave her.
Now it is true that the Iraqi law does not explicitly say a woman must obey her husband and comply with his demands for sex, it merely says she must obey him, and continues to use the same word nashiz to describe the consequences (all the same--starve, denied shelter, denied clothing, and ultimately if she persists, divorced). And the term nashiz has a clear shari'a meaning and that absolutely includes an obligation to submit to sex, except in the case of a woman being ill and unable to obey. Interesting then that Article 25(2)(d) provides an exception for wifely "obedience" if a woman is ill and her illness prevents her from obeying her husband. Moreover, Article 1 makes clear it's the shari'a that is the main source for interpretive purposes. So we have the shari'a term nashiz, we have the obligation to use the shari'a to guide interpretation, and we have the shari'a exception to a woman's obligation to submit to sexual demands explicit in the law's text. So it's not hard to make the connection. So again, marital rape not okay necessarily, starving wife is okay. Which by the way might well be the same in the Afghan case--the fact that the law obligates the woman to submit to sex doesn't mean the man can take it by force if she doesn't. The marital rape claim might be a bit of hyperbole. After all, there are exceptions in the Afghan case too (same one as in Iraq, if she's ill), so presumably even in Afghanistan you aren't permitted to just force sex, you have to go to the judge, the judge decides there's no illness and then permits the husband to take retaliatory action, ie throwing her out without any money and threatening to take back her dowry. Presumably.
Even the reforms in the Afghan code mirror Iraq's. The main one mentioned was the rise in the marriage age to 18 for men, 16 for women, which is similar to Iraq's though Iraq is 18 across, but 15 I think with parental permission. All improvements on shari'a. So really, the examples given in the media reports at least are NOT, as they are portrayed, a return to Taliban type restrictions on women, they're the ho-hum stuff of Muslim countries generally. Perhaps in Afghanistan less women would appear on the street than in Iraq, because Iraqi men don't generally think of it as their obligation to prevent their wives from buying cucumbers in a market, but if we are going to focus on legal texts, which is what all the attention is on however narrow that focus is, then heavens it's the same thing.
So why was it that Iraq's Saddam era personal status law was so wonderfully progressive and this law is so awful when they are so similar? There are I think two reasons. First, and most obviously, there is the political context. In both cases there has been suspicion and fear of creeping Islamism, but in Iraq the Islamism led to a challenge of the law, while in Afghanistan Islamism led to its enactment. The Shi'a Islamists in Iraq, that is, wanted and want even more than this, they want control of rulemaking apparatus in the hands of clerics and special state courts staffed by judges close to the clerics to deal with uncodified shari'a, and this sends everyone into a tizzy. In htat context, the Personal Status Code looks pretty good.
By contrast, in Afghanistan, that Shi'a minority wasn't getting their own courts (though they tried), they were thus forced into codification and Karzai and the Parliament probably knew the world would watch so they softened it. No child marriage for example. Came up with something sort of like everyone else and figured that was good enough. But not so in a nation where the West's obsession is stopping a resurgence of the Taliban and a return of Al Qaeda. What was progressive in Iraq, the vanguard of Muslim women under Saddam Hussein (meant to be dripping with sarcasm, that phrase) was now Taliban resurgence, or something close to it (couldn't be actual Taliban resurgence as the Taliban despise the Shi'a).
Secondly, the Afghan clerics were probably more explicit than was politically savvy. The Iraqi drafters obviously figured this out. You don't have to say a woman must submit to a husband's demands for sex, just throw out the term nashiz, make clear that the term should be interpreted by shari'a, and the rest will be clear enough to the judge. Even the Shi'a Islamists are politically on top of things here. They don't want the shari'a codified, they just want reference to it as the source of family law, and let judges read the clerical opinions. Part of that allows the clerics supreme authority in rulemaking, but part is I am starting to think just good politics. Don't say a woman has to obey her husband's demands for sex, just say "God's Law" and then the Italians won't go nuts because they'd actually then have to find out what God's Law means and that would take too long. The Afghans have a relatively new country, built virtually from scratch, so they don't have the experience that others do on how to manipulate Western reaction to shari'a. This will I am sure prove to be a learning experience for them.
HAH