or Foam From a Camel's Mouth, Spewing and Subsiding
Islamists and Super-Islamists, and the Incoherence of Each of Them
There was a fairly interesting article in Sunday's New York Times by Robert F. Worth on a rising star within the Egyptian Muslim Brotherhood, Mohamed Beltagy, and what it might portend for the future of Islamist movements as well as the Middle East after the Arab Spring. Some of it, namely the divisions within the Brotherhood as between a cautious older guard and a newer, younger, flashier set of leaders, was of less immediate concern to me, though it was quite interesting. What really got my attention was the division described, here and elsewhere, as between the mainstream Islamist Muslim Brotherhood, which won 49% of the seats in the lower house of Parliament, and the more hardline Salafists, who won about a quarter of the seats. (To be clear, "Islamist" under my working definition is a person who seeks for the shari'a a prominent role in the law and constitution of the nation state. An itinerant preacher who runs around trying to convince women to wear headscarves is not an Islamist. A legislator who seeks to increase the number of hours of required religious training in public schools is. I think that works well enough at least for these purposes.)
As this is portrayed in the article, I think largely accurately, the division between the two, inasmuch as legal change is concerned, is as follows. Those groups described as Salafist want a greater recognition of the shari’a within the law and constitution of the nation state while the Brotherhood is less interested in all of that. Again, interesting and accurate, but on deeper inspection, drawing on my own scholarship, neither faction I think works in any sort of coherent fashion as the basis for an Islamist political movement.
So taking the Salafists, and largely repeating some of the claims I’ve made in the Death of Islamic Law, there is no real coherent explanation offered for precisely why they are insistent on the Islamization of some areas of the law and not others. Why the opposition toward the creation of marital communal property, let us say, which the shari’a nowhere recognizes as existing, but not opposition to legal personality on the part of corporations, a communal form of property ownership really which the shari’a also does not recognize? Or the opposition to alimony (a wealth transfer not authorized by shari’a) or a financial consequence for a husband initiating divorce as in Iran (another wealth transfer not contemplated by shari’a), but not to rules of tort which are not Islamic in origin (thereby authorizing wealth transfers not contemplated by shari’a) or rules of bankruptcy which make a mockery of the shari’a rules through obligatory debt discharge (another wealth transfer, also unauthorized).
I could go on, but I won’t. There is no coherent methodology that is being applied theoretically to recreate the Islamic state on the basis of shari'a. Nothing can really explain these contorting conflicting positions on how law is evaluated relative to its conformity to shari’a. The Iraqi Supreme Court sweeps centuries of doctrine under its feet by quoting one Qur’anic verse respecting writings and contract, without objection from anyone, and I suspect the supposedly hardline Salafists would not find this troublesome. Can they apply that methodology (quote the Qur’an, ignore contrary juristic interpretations of it) in other contexts, say respecting a woman’s right to divorce? It’s rather easy to come upon the answer. Whatever the running theory, it won’t fit the facts as they exist.
So we then turn to the Brotherhood, which as the article notes is really trying to pull away from offering any suggestions for massive legal changes. They aren’t secular, let’s be clear, they do want the shari’a to play a role in the state. They would walk before agreeing to a constitution that did not, for example, declare that all law that is enacted and that is repugnant to the shari’a is invalid and void. But they don’t want to talk about punishing fornication, or rolling back family law reforms, and there is really no suggestion it is anywhere at the top of their agenda. They are happy to settle into the incoherence that is the application of Islamic law in the modern nation state today and focus instead on more pressing issues for the population, such as anti-corruption, economic reform, wage stagnation, and the like. The Islamizing, to the extent it exists, is not legislated, but rather conducted through social programs offered by the Brotherhood, from women only busses to medical clinics, programs that don’t need the state, or legal authority, but rather operate independently of it.
The real problem with this, in the end, is that it isn’t really much of an Islamist political agenda and so hardly portends for a long term successful political movement. There’s no religious vision there. If all the Brotherhood is going to do is leave things the way they are and push an economic agenda, then it really does not need to be the Muslim Brotherhood as political movement. A secular movement that promised not to reverse the hold of the shari’a on family and inheritance law (the secular nationalist Iraqiya for example, in Iraq) would do just as well. That’s more like the Republican party, with a core religious base and some random sporadic efforts here and there to fight a culture war, but really not organized or driven by a comprehensive agenda based on “Christian law”. That’s fine, though note it does quite well in a secular state with quite a few nonbelievers in it.
So you can play down shari’afication of law, but then you’re sort of losing the very purpose of your movement qua political movement rather than apolitical civic organization sporadically motivated into politics. Or you can actually call for what media outlets always call the “full implementation of shari’a law”, except as I said above, it’s nothing of the sort, and what shari’a they insist on and what shari’a they do not follow no coherent methodology. Either way, it ends in a muddle.
HAH
Revisiting Same Sex Marriage as a Muslim Legal Realist
I expect that while some American Muslims might well support the call for recognition of same sex marriage on the basis of the aman, others will not. I further suspect that the older the Muslims in question are, and the less rooted they are in the United States, the less likely they are to be in support. In some ways, this I suppose is obvious, in that tolerance of homosexuality is less likely to be found among those born elsewhere, or older, after all.
But of course this is a legal question, one deriving from an interpretation of religious doctrine, it's not supposed to be a question of preference. I did not suggest that Muslims have to like homosexuality, or even find it permissible in Islam. I specifically said I wouldn't address that, and Muslims can draw their own conclusions on this. I am suggesting that we already believe in a social contract wherein specifically marriages are permitted under American law and yet deemed void by the same shari'a sources you would turn to in order to find homosexuality deemed a great sin, and specifically the interfaith marriages of Muslim women. And we view that social contract as one we are ethically obligated to uphold. All last post.
Yet the difference in practice as between broad Muslim acceptance of interfaith marriages involving Muslim women as being legal by secular law (if not necessarily permissible under religious law, according to traditionalists) and same sex marriage is striking. One is broadly okay as legal under some other country's secular law, the other deeply contested, despised by many and considered an affront to Islam. Thus, as illustration, I have an Iraqi friend who is quite pious and came to the U.S. specifically to attend the marriage of a Muslim woman to a non-Muslim man whom he regards as a friend. Ask him if he finds the marriage acceptable Islamically, I think he'd be forced to say no. Ask him if that means he won't attend, he'll shrug his shoulders and say something to the effect of not my daughter or family member, what business is it of mine? Yet he'd never attend a same sex wedding I am sure, the idea would be horrifying to him. Perhaps I am unfair, I never asked, I can say with confidence it would be horrifying to most Iraqis, including large numbers who would attend a marriage of a Muslim woman to a nonMuslim man.
In any event, even as to those who wouldn't attend either, they don't think it's wrong to live in a nation that permits the marriage of Muslim women to non Muslim men. Yet by the very same sources to which they choose to turn, those marriages are void and those people engaging in it are committing the sin of fornication, which is certainly the very most you could say of a gay couple (and even then more by analogy than direct application). Again, the liberals can question the sources if they want to, that's fine, but for these purposes I'm simply pointing out that if one takes the traditional sources seriously, they condemn sex out of marriage, and neither same sex marriages nor interfaith marriages involving Muslim women would be recognized as marriage. In fact, I think I could develop a pretty good argument under ultra conservative classical text on why a same sex marriage between two non Muslims shouldn't concern Muslims living under an aman at all as it doesn't involve the community, it involves outsiders in a non-Muslim state doing their own thing. Whereas the claim as concerns the interfaith marriage is a harder one to sustain.
So why the visceral reaction against one as being horribly un-Islamic, why the vitriol against same sex marriage in particular when other forms of zina are winked at or ignored? I don't think it's doctrinal or could be defended as such. Simply stated, it's because homosexuality is viewed as particularly repulsive for reasons independent of doctrine. In the same way, I suppose, that some things I regard as sins (say, pork eating) make me sick while other things (say, heterosexual extramarital sex) which I of course abjure and regard as sinful do not repulse me. If I eat something and find out later it's pork, I want to vomit. If I see an attractive woman on television, I don't. Yet of course that's not doctrinal, it's not legal, it's merely preference.
And that same preference, I submit, drives American Muslim opposition to same sex marriage where it exists. Nothing more, nothing less. Where Muslims are more exposed to homosexuals, they are less likely to regard gay marriage with such abhorrence and more willing to shrug their shoulders and point out that other US marriages are not Islamic either. Where they are less exposed and come from less tolerant environments, the reverse is true. Preference, ideological preference stripped of doctrinal significance of any kind, is all that drives this debate. The rest is just mask.
HAH
Why American Muslims Should Support Same Sex Marriage
How is it possible, if one is a traditionalist unwilling to recognize a homosexual relationship as licit or legitimate? Well, traditionalists do something like this already. They do a great deal of it, specifically in the area of marriage. The state explicitly recognizes particular forms of marital union that the shari'a, as understood traditionally, unequivocally condemns. Traditionalist approaches to Islam have always deemed the marriage of a Muslim woman to a non-Muslim man to be invalid. The matter is laid out no less clearly in the manuals of the classical jurists than the condemnation of homosexuality is. The marriage of the Muslim woman to the non-Muslim man is not a marriage and as such, the sex between them is illicit, a form of zina, and criminal, at least as criminal as homosexual acts would be in the classical manuals.
Yet it would be something akin to insanity to suggest that the United States criminalize the marriage of Muslim women to non Muslim men. I know the "shari'a creep" elements worry about this, but no American Muslim I know has ever gone about suggesting they want the state to render such marriages illegal irrespective of the wishes of that Muslim woman. Even if someone does suggest it (probably an idiot, we have them too), no state code that did such a thing would be close to constitutional, it violates equal protection of genders, free exercise, establishment, equal protection of individuals by religion, due process and right to marry--it's hard in fact to think of something else that violates this many rights at once. Again, we know this, we've internalized this, we're happy in the United States even if its rules might afford state recognition of marriages the religion doesn't.
(Just so some Islamophobe does not get it in his head to copy the paragraph above to demonstrate the absolute incompatibility of Islam with American values, let me just point out the same conflict exists as between canon law and the state recognition of marriages of previously divorced couples. To the Catholic church, those are not marriages. Under American law, they are. No Catholic I know wants the law to strip recognition of these marriages, just like no Muslim does respecting interfaith marriages of Muslim women. And even if some Catholic did, it would violate a lot of constitutional provisions, as it would in the Muslim case vis a vis the marriages discussed above. And so forth. Which perhaps is why several decades ago it was the Catholics and not us who were supposedly "creeping" up on the US and threatening a takeover according to the xenophobes of their day. We'll make it in eventually, and you'll know it when a few decades from now when some American Muslim xenophobe starts complaining about some other religion or ethnic group creeping into America and threatening it. It'll come, this I believe.)
Why do we accept such rules despite their condemnation? What justifies it, assuming that is that one finds the traditional approaches to shari'a the more valid? Simply stated, borrowing from the work of others (Andrew March, Mohammad Fadel, etc.), though extending it further to be clear, it is the aman, a form of a social contract. We are free here to practice our religion, to proclaim it, to spread it even if we want to, and in return the deal is the adherence to and upholding of enshrined constitutional principles respecting human liberty and equality, across all religions. So a woman may convert to Islam and marry a Muslim man, or she may convert from Islam and marry a non-Muslim man. For many of us, me included, these principles of individual liberty and religious equality, from free speech to free exercise to equal protection, too broad a subject to be broached here in detail, have been deeply internalized and we believe in them as core constitutive civic values, even seeking to export them. For others, they might be ethical obligation by way of accommodation, followed just like a believer follows the rules of a contract, an obligation to pay their iphone bill every month. You do it as an ethical matter, not because you like it, not because you'll be sued if you don't (then it would not be an ethical obligation, purely a legal one), but because you like the service, you agreed to this and you are a Muslim, and the Qur'an requires the believers to uphold their contracts. But either way, you live up to the deal as ethical obligation, as a deal.
So as Muslims what should we be afraid of? Not that the state is going to allow marriages that are unIslamic, we've signed on to that and it is an acceptable piece of the aman we've made. No, it's the breaking of the aman we should fear, effectively a ripping up of the social contract. How does that happen? If the rules change and we are no longer free to practice our religion. Now one group of people would argue that happens with the rise of same sex marriage. Because once one allows same sex marriage, then it spreads, and then every religious institution has to recognize it, and if they don't, then I don't know, maybe the police come? They stand in the back with their radio speakers and their guns and drag the Imam off in handcuffs for refusing to marry a gay couple under the Qur'an and the tradition of the Apostle? Or something?
As you can tell, I cannot imagine such a thing happening. But if it did, it would be a ripping up of the social contract, the one ensured by the constitution, and make a mockery of free exercise of religion. Few things are more violative of religious freedom to my mind than to compel a religious institution to perform a wedding it did not believe was valid under its religious tradition. Again, I don't worry about this. If the US doesn't do it for divorced Catholics now, it isn't going to do it for same sex marriages.
So what am I afraid of, how do I see the contract ripping up? By the folks currently threatening to rip it up, the ones who talk of shari'a as if it was a contagion, by the ones who want to deny our right to build our own houses of worship, by the ones threatening to pass laws that say that two people who meet to practice shari'a (that's prayer; prayer rules are part of shari'a) are engaged in an act of terrorism, by presidential contenders who won't hire us (Herman Cain), or who equate us with Nazis (Newt Gingrich), and by supposedly small government conservatives who are focused in getting the government into our lives on the theory that we are not a religion but a cult (which so far as I can tell means to them a religion that they do not particularly like). They're still a fringe, but they're real people, they exist while the folks who supposedly will force mosques to hold same sex marriage ceremonies do not. I think we'll overcome this as I said above, I think we'll win this war, not because I believe in Islam (I do, let me be clear, I do, but believing in Islam doesn't mean it has to be tolerated here, and now, it's been extinguished in limited places at limited times before) but because I believe in America and its ideals and think history is on our side. But those who threaten us are real, and present, and a danger, and they are promising to rip up our social contract if they ever get a chance.
And not a one of them is gay. Because it isn't only our social contract they're looking to rip up, not only our freedoms they seek to infringe, not only us to whom they'd seek to deny equality.
So I say support same sex marriage and uphold the contract. Uphold it because you believe in it, or uphold it because you've signed on to it and it is your Islamic, ethical obligation to do so even if it recognizes behavior you find sinful and illicit. But either way, uphold it. Because there, and only there, will we ever find our place in this country.
HAH
Random Thoughts on Slavery and the Shari'a
If you talk to most Muslims today, they are scarcely aware of the centrality that slavery played in the development of the shari'a, because most Muslims today abhor the very institution of slavery in perfect keeping with the consensus of civilized peoples everywhere. Yet the matter is in fact important, and worth greater introspection on the part of Muslims, because I think it reveals much respecting the authority of the classical scholars, or lack thereof, that currently slips below the radar because of the inattention given to the subject.
If I had to summarize modern views on slavery in Islam among modern Muslims who know something of the subject, it would go something like this:
Slavery was a deeply abhorrent practice, a repulsive one fundamentally at odds with basic principles of justice and fairness brought by the Divine. But it is also a practice that predominated in human civilizations prior to modernity, and its prevalence caused Islam not to ban the practice outright, but to regard it with deep distaste, to mitigate its effects and humanize it to the extent possible, and most importantly of all to set the seeds of its own destruction, so that it would not last in the Muslim world. We did all of that, and so not only is slavery gone, but even when it existed, it was better than Western slavery.
Now let's be clear before proceeding to the important parts worth discussing. Some of this is apologetic nonsense, and should be dispensed as such quickly. The Arab slave trade killed about as many Africans as the Western slave trade, and we are talking in the tens of millions. Nothing "better" about that as a historical matter. Besides, the notion of reforming an institution and seeking to end an institution lie at some tension with one another. If you, as I do, tend to regard slavery as abhorrent and repulsive and you pray for its end, you don't seek to reform it, and you don't seek to trumpet how much better you've made it than some other culture did. You have reduced a human being to the status of livestock, you have claimed a right to buy and sell her, and when you do so, you steal her humanity. You want to reform drug laws, fine, but you can't reform slavery.
So I want to leave aside that piece of it and concentrate on the other piece. Effectively, this Islamic argument indicates you have to accept Lincoln's bargain. You may as a modern Muslim say slavery is a wrong, a deep and fundamental one. You can say not only is it and should it be criminal, but it should be prosecuted severely. But when and where it is prevalent and widespread as it was in Lincoln's South and in Muhammad's Medina, you won't quite ban it. You won't encourage it, you won't even be neutral towards it, you'll hate it and discourgage so much that you won't even say it is sanctioned. (Qur'an never does, all is implication). But what you'll do is neutralize its effect as much as you can through liberal manumission rules, stop its spread (Islamic rules on enslavement are restrictive, as was the American ban on the slave trade) completely and totally, and wait for it to die out.
To some, that's a small step, to me a gargantuan one, one that is hard to take. It's one thing to say that in a different place and time people got married at 15 and that was normal, or even polygamy in 9th century Abyssinia was what it was who are you to judge, or whatever, but slavery? Even this small step, just some sort of recognition that in some place and some time, it has to be, not encouraged, in fact discouraged, but tolerated is tough. That said, it was Lincoln's position before the War. Still, my heart lies more with John Brown.
In any event, there it is, but is it compatible with Islamic doctrine? Yes, with one important caveat. You can claim the Qur'an regards slavery as Lincoln did in 1858 as per above, you can make that argument quite plausibly, but you have to piss all over the classical law to do it. because the fiqh of the classical jurists does no such thing. I don't mean to suggest that a ban on slavery is incompatible with classical doctrine, you can make it compatible. But the meta ethical position that this is an abhorrent, repulsive, disgusting practice and we're going to make it die is not a even close to a fair reflection of the fiqh. Perhaps the classical jurists would never have countenanced the tributary relationships that did develop in the Arab slave trade over East Africa, actually surely they didn't. Freamon says the rules were "spectacularly" ignored. They were. But could you buy a slave girl and condition her virginity, because you want to rape a virgin? For the most part, yes, and you don't see much by way of concern by the classical doctors respecting this.
But then, the question arises, if you're willing to declare the classical doctors engaged in profound and fundamental error on this point, if you're willing to argue that this was a fundamental and total breach of their function as interpreters of the Word, as betrayal of their human instincts, a gutting of deep and fundamental principle, a figurative spitting in the eye of the very purposes for which God broke the veil separating humanity from the Divine, well if you'll do that for slavery, the central example often used throughout the rules on sale under classical Islamic doctrine, then just how much deference should you afford the jurists on other questions. It's worth a thought anyway.
HAH
Michele Bachmann's Obsessions With the Caliphate
Look no further than the Iranian constitution, which states unequivocally that their mission is to extend jihad across the world and eventually to set up a worldwide caliphate.Right, Michele, right. Because if you think about it, what else could a Shi'a state want to do than resurrect the greatest Shi'a killing institution in world history, namely the caliphate? In the Shi'i community, "caliph" comes in right around "contract killer" and "mafia boss" in terms of respected professions. Umayyads, Abbasids, Ottomans, Mua'wiya ibn Abi Sufyan forward, we hate them almost without exception. You might as well accuse some militant Protestant regime of being in league with Rome.
The clause to which she refers is in the quite lengthy preamble to the Constitution, which does refer to the creation of an army to fulfill the "ideological mission of jihad", though it also references Qur'anic verse which relates to violence and it is an army after all, making it seem odd to make the matter of jihad ideological in that context. I'd describe the section as deeply disconcerting, but not "unequivocal". In fact if anything it's deliberately equivocal. "Ideological" jihad by an army is better described as potentially dishonest dissembling rather than unequivocal. No caliphate though.
So at long last, I ask, again, if we're going to have candidates for President advocating invading another Muslim country, can't we ask that they at least figure out, once and for all, the basic, core differences between Shi'i and Sunni. They're really not that hard.
HAH
Tim Tebow as Muslim: A Hypothetical
I should start a radio interview like that next time, for fun. I say "Good Morning" and I get questions about what "shari'a law" has to say about cutting off people's noses when you don't like what they say (actual question once not long ago), it would be interesting to see the reaction in this case.
What spurred these musings was a program yesterday on the local NPR radio station here in Pittsburgh, on a national show called The Takeaway, where the question was posed as to America's likely reaction if Denver Broncos quarterback star Tim Tebow was a committed Muslim as he is a committed evangelist. For those who don't know, he routinely opens interviews by thanking his lord and savior Jesus Christ, and is known for this kneeling prayerful stance he takes quite often after scoring a touchdown and the like. He's also led his team to an improbable six wins in a row, one more improbable than the last, causing some fascination among evangelists. (Though careful, my friends in faith, careful. We were told by the imam at our mosque growing up that Muhammad Ali had two angels fighting with him. You can imagine our reaction as little children when Ali lost to Larry Holmes, it was as if the devil himself had come to kill the Prophet. I love Ali, but surely one's faith must run deeper than the performance of any mortal on a sporting field).
In any event, I was amused by the program, asking a question that anyone with sense would know the answer to, though it did to me raise the matter that should cause the most consternation. Taken as a bare and naked expressions of faith, it is difficult to see the problem with what Tebow might do. I don't agree with Frank Bruni who I think said what Tebow does isn't as bad as others have done, Michael Vick and Ben Roethlisburger among them. True, but irrelevant. They did what they did, everyone regarded it as bad, and if they hadn't expressed contrition they wouldn't be revered. The revernce is on the basis of their having moved beyond it, that's the assumption. By contrast, Tebow isn't exactly contrite. But then it is fair to ask why should he be, being a person of faith is not bad, any other person of faith me included would agree.
And as a committed believer in the First Amendment, I don't think there is any possible way one could sensibly legally restrict what a private individual wishes to say when given a forum on national television. To do so would be to grant the state authority over particular expressions that should trouble anyone.
Yet if we concede no legal issue is raised, and we concede that in the end he isn't seeking to alienate, only to testify, are we done? To me, no, because all of that ignores the deeper concern. As one commentator put it, "America isn't ready" for a Muslim who would do the same thing. First, we once were (I could love Ali in the 70's at least), and are no longer, which suggests serious slipping, a problem on its own. Though Ali compared to Tebow is positively ecumenical come to think of it. Second, I hate that phrasing, though it demonstrates something as well. Like "America isn't ready for a woman president", this is supposed to be the nice way to put "there's a lot of bigots in our country and those jackasses would never vote for a woman for no reason than their own bigotry." That you cannot say this in this fashion, as it is considered rude, demonstrates some level of license for sexism, or Islamophobia, as the case may be. It is legitimate not to be "ready" for something (I'm not ready for lunch, for example, as it's only 9:30 in the morning), it is not legitimate to be a racist, sexist or bigot . So we put it the former way, which to my mind legitimizes it.
So because of such lack of readiness, in a world in which a television show about Muslims being normal Muslims is considered offensive because the Muslims don't actually speak about jihad at the coffee shop (we don't, we truly honestly don't. We talk about college football), you can imagine the reaction if a player began every interview as I started this post. I just don't think it would be an option for a player wishing to remain in the league. The distraction for a team would be so immense I cannot imagine it could work. The only choice for a Muslim player would be not to hide their faith so much as make absolutely no issue of it at any time during actual playing, interviewing, etc. They could do interviews with magazines for the faith community (Olajuan did that as a committed Muslim) and of course participate and lend their name to faith activities elsewhere (again, Olajuan did that) but the times I remember him talking about his religion are when it was brought up, in particular in defense, as in "do you stand when the national anthem is played?" (The answer was yes.) And that's pre 9/11 and Victory Mosques and Obama is a Muslim and all the rest of it that's only gotten worse with time.
Now to me those rules are fine, and defensible, when applied to everyone. I am perfectly comfortable knowing I do not and should not open a Contracts class by offering all praise to Allah, Lord of the Worlds, and peace and blessings to Muhammad, the Seal of the Prophets and Apostles. My class isn't Muslim, it's a liberal society, faith is faith and Contracts is Contracts. Likewise, I know when I sit in a Contracts class, I am not going to be subject to someone else opening by thanking their Lord and Savior Jesus Christ. These are rules I not only live by but internalize as normatively proper as an American. Naturally, in a religious sermon, the matter is altogether different but I fervently believe religion has no place in my Contracts class.
My concern, as a Muslim, is that when particular public displays of faith are rendered normatively acceptable (they are and must be clearly legally protected, again that's obvious), and when the faiths of some may be professed while the faiths of others may not be so professed unless one wants to become a social pariah, that necessarily will lead to alienation and frustration on the part of excluded communities, and the only normatively proper way to handle this would be to ask all to limit particularist expressions of faith in settings where general audiences are targeted, because the field isn't exactly level and otherwise the airwaves will be filled solely with appeals solely to Christianity, and that, to me, is decidedly illiberal.
So yes, in the end, I'd like to see Tim Tebow tone it down.
HAH
My Latest Scholarship on Islamic Bankruptcy
Time I suppose to move on from the foaming of the camel's mouth of my last post, particularly now that I've witnessed a Republican debate that appears to be between those who believe that there is no such thing as a Palestinian and others who think that's probably true, but not a wise thing to say. It seems to me someone ought to be apologizing to the Turks for their previous insistence that the Kurds were not a people but merely "mountain Turks". Our guys aren't much better. Krugman said it best, Gingrich is what stupid people think a smart person should sound like. Whereas in fact, when he speaks as "a historian", he sounds more like an idiot. His note respecting the Palestinians being "invented" is an excellent case in point. To the extent he means there was no such thing as Palestinian sentiment prior to the end of the Ottoman Empire, then precisely that same point can be made respecting American national sentiment on behalf of North America's white inhabitants in, say, the start of the 18th century. Or has this "historian's" research led him to conclude in fact God dropped the white people onto North America as his own modern version of the Chosen People? Idiocy in any event deserves no longer than this paragraph.
My latest paper, on why I think the shari'a rules on bankruptcy are obsolete, and are likely to stay that way notwithstanding the rise of Islamic finance, is available here. Happy reading and many thanks to Abed Awad, Bob Michael and Jason Kilborn for excellent research on Islamic bankruptcy that helped pave my way. Errors and omissions all mine.
HAH
A Shi'i's Lament
It could be that I’m just too tired and jet lagged. Or it could be the sheer exhaustion of having to deal, yet again, with the same exclusionary and alienating anti-Shiism that seems to flow almost naturally from the lips of all too many of my Arab brethren. Or it could be that I have to listen to all of it during our holiest times, when you’d think there would be an extra effort made at mutual respect and tolerance, rather than the reverse. But whatever it is, I’ve had it. As an “other” in the Arab world (a Shi’i Arab) married to a different other (a Kurdish Iraqi) in that same world, I feel alienated and abandoned, and I have decided to give my frustrations voice. There remains to us no place for the “others”, with or without an Arab spring.
When I was in college, I knew three Egyptian fellows—Hisham, Yusuf and Amr. I entered as a freshman, and as a Shi’i somewhat wary of associating too closely with the main Islamic center. But these three fellows went out of their way, really, truly went out of their ways to attract and bring the Shi’a, invited Shi’a to lead the Friday prayers, visited us in our homes, really worked to bring forward a more open and inclusive center. And of course I reciprocated, many of the Shi’a did, we confronted Shi’a who were wont to say something that our Sunni friends found offensive, to our fellow Shi’a, in a manner that caused some hurt feelings. I’d take credit for that, but really Hisham Yusuf and Amr had each taken ten steps before I or any of the other Shi'a took one took one. I think of my senior year at MIT, when Hisham was President of the Muslim Students’ Association and I was vice president, when we had purged the place of all extremism and particularism, as one brief shining moment, our own college Camelot. It may not have lasted long, but it was there. I mention this because those three Sunni Arab Egyptians surprised me, and over two decades later, I’m still waiting for a second surprise. Instead, it’s continual disappointment.
That’s not to say some random Arab will not tell me we are all Muslims or mouth other pieties, surely they would. I don't doubt a substantial number are sincere, and it’s not fair to demand every one of them demonstrate, to me, that they mean it by confronting the near ubiquitous bigotry in their own midst. For all I know they do, it’s not to little single me they owe a duty anyway. So to say I am continually disappointed, and never surprised, is not to say every Sunni has a problem showing respect and tolerance to Shi’a. It is to say it is something of a broad, serious trend throughout the Arab world respecting the lack of a place for the others, and to suggest, quite frankly, there are far, far too few voices among the dominants to challenge the narrative and stand with the others. That I raise this now, and on this day, the day of the martyrdom of the Prophet’s Grandson, is mere happenstance caused by a confluence of events. The feelings, however, are real and I think broadly shared within our community.
On the plane ride back to the US today, a couple of Jordanians were lamenting Iraq’s state of affairs. “They call it a democracy, the Americans. The Prime Minister is a Shi’i. The President is a Kurd. What kind of democracy is this?” That’s a quote. Apparently in democracy you aren’t supposed to count 70% of the population. Last night, the discussion at my dinner table for a personal meal with a few folks I knew casually was why precisely it was that the Shi’a in Iraq were so weird as to go around walking to Kerbala from Baghdad at this time, with a few attempts at lame humor in the midst of it mimicking limping pilgrims. This, to be clear, is in response to news of a bombing, undoubtedly by a Muslim, in Iraq of Shi’a pilgrims on their way to Kerbala. Because, really, what could be a more appropriate Muslim response when one Muslim kills seven others than to make fun of those killed for being so odd? So much for the brotherhood of believers.
Yesterday, with a different group, at a table at a conference abroad not far away, it was how the “Iranians” insult the Prophet’s Companions, and how Jafar al-Sadiq, one of our most revered figures, was actually a Sunni. I think the day before that, with an overlapping group, it was the ridiculous claim, from a well educated person who really should know better than to spout such absurdist nonsense, that Bahrain’s Shia were actually Persian. This follows a bit a different claim, made in a different setting a few weeks ago, by a different person, respecting how the Shi’a of Lebanon were in fact more loyal to Iran than their own country, though you’ll be happy to know as an Iraqi Shi’a she was quick to note that I was not to be lumped in with the balance of the so-called “Persians.” (“Persian” to be clear to those who are liberal and therefore unsure precisely why it should be so insulting, is this already bigoted crowd’s way of suggesting you are a traitor to your nation, loyal to another, and therefore thoroughly contemptible. Naturally, that’s yet another reason to be offended by the rhetoric, if you are in fact of Persian extract living in the Arab world curious as to precisely why your citizenship should not be equal to that of others in your country by virtue of your ethnicity. This is true, in fact mentioned in my upcoming book. But for now we stray. You just have to assume for these purposes that Israel is horrible because it is a Jewish state that discriminates against Arabs, which is different than an Arab state that regards vast numbers of its own citizens as Persians and Persians as unfit for equal citizenship in their societies. Make sense? Of course not, so let’s move on.)
But she said I’m not a Persian, in fact unbeknownst to me I’m not really a Shi’i. This is only became Shi’a a few hundred years ago, because our tribal leaders decided on that for political reasons. It was supposed to be a concession in my favor by a Syrian living in Beirut. It’s an interesting game as I see it. Can I play?
Hey Egyptians. You aren’t really Muslim, or that portion of you who claim you are Muslim aren’t. You only became Muslim when the Muslim Arab armies invaded. Hey Palestinians, go back to Byzantium. And don’t laugh you white Anglo-Saxons. Didn’t you know Charlemagne converted you, you guys are actually animists of some sort I think. Or maybe you’re Catholics but you certainly aren’t real Protestants, that was Henry VIII who did that. Fun! Now we must leave fantasy world where one’s commitments can be seriously evaluated on the basis of the reasons their forebears took particular actions and return to our regularly scheduled programming.
This, to be clear, passes for intelligent conversation among all too many of my Arab brethren, and again, it’s not as if I select as my own Sunni friends people likely to say such things, because I don’t. As Lebron says, they’re my friends. Still, set me at a dinner with a group of Sunnis who don’t know my sect, or who weren’t paying attention, and to me it’s more a gritting my teeth and hoping the subject does not come up. Because if it doesn’t, the dinner might have been pleasant, but if it does, it won’t end well with exceptions to that being marginal almost to the vanishing point. I’m too tired for the most part to keep arguing, besides which once they find out I am Shi’i they usually retreat and find a concession (like that we Iraqi Shi’a are Arabs and really aren’t as Shi’i as we think), which is even more exhausting to deal with.
Which of course explains remarkably well the abandonment of Bahrain’s Shia by vast majorities of Muslims, even those living in the United States. Either they’re actually Persians, and remember, it’s okay to kill Persians (see above) or the other one I’ve heard is that they are too “sectarian” because apparently a few protestors are caught on film beating up some random South Asian workers who appear as innocent as can be imagined, obviously a detestable deed. So to be clear a group of people who have lived their lives under pervasive, systematic and well documented discrimination on the basis of religious sect may not be supported because some small number are “sectarian”. It reminds me of some guy I heard once who pointed out how Nat Turner’s rebellion was suppressed not because of support for slavery but because of all the innocent white people, including women and children, his rebelling slaves killed. Because, see, that was the problem in the antebellum South. Too many racist slaves.
I suppose it is too much to expect much help from religious leaders when the general trends among educated and poorly educated, native and abroad alike, are so depressingly similarly bigoted. But in any case it isn’t there. Yusuf Qaradawi is more than happy to fan the flames of sectarian hatred for more television time, perfectly happy to abandon Bahrain’s Shi’a and talk seriously of democracy in Syria or Egypt. He lies unchallenged, Yusuf says what the masses want to hear, and it’s pretty clear they want to hear this. I used to regard his pronouncements with some detached bemusement, one day it’s okay to kill American soldiers in Iraq, the next it’s okay to be a Muslim American soldier in Afghanistan. What day of the week is it? I can tell you if it’s okay to kill Jewish children according to the Great Shaykh. It was a mistake to be so accommodating to Yusuf the shameless demagogue, his complete lack of scruples even as to human life deserved more criticism than I delivered. A prostitute exercises more discrimination than Yusuf Qaradawi, with due apologies to the prostitutes for comparing them to such a detestable man.
Are you a Palestinian Fatah supporter who wants to insult a member of Hamas? You call him a Shi’i. How about Hamas itself? They extol the virtues of a great Shi’a murderer of our times, Abu Mus’ab al Zarqawi. And Yasir Arafat of course was Saddam’s greatest friend, the greatest Shi’a murderer of our times. Yet I’m the one who has abandoned the “Arab cause” by not saying enough critical things about the Israeli occupation. I defend unlawful and immoral occupations of the sort in which Israel is engaged to nobody, but I do find it funny how having thoroughly been alienated, with murders against my brothers justified on the grounds that we are Persians, as if that’s possibly a reason to kill someone anyway, and told we are too stupid to know our revered Imam was in fact on their side, after all that, after Shi’is die on a holy day and it’s time to tell a joke about their dumb rites, then suddenly you say “Israel” and I’m supposed to snap like a loyal dog to attention because now it’s “our” cause and shouldn’t I be on “our” side. Ain’t gonna happen, and not just because I don’t believe in “sides” but rather demand independent thinking and judgment. In fact, it’s a good thing I demand independent thinking of myself, or otherwise who knows what “side” I’d be on, and who knows if I would characterize Israel’s occupation as illegal and immoral if I was supposed to be a side picking automaton who didn’t think. After all when it comes to picking sides, to paraphrase Muhammad Ali, I got no beef with the Jews. No Jew ever called me a traitor.
And I suppose one could argue that the Shi’a are “just as bad” which is probably true as far as it goes, but it doesn’t go very far as concerns the region. I’m perfectly happy to concede that within Iraq, it remains the obligation of the Shi’a majority to include the Sunni minority and they haven’t done enough. At times, at the height of anti Ba’ath hysteria, it’s been awful, miserable failure. If a Sunni Iraqi wishes to be more extreme, I can meet halfway, I can accept the validity of his claim and perhaps dispute its extent. But I can acknowledge, in my book, in my publications, elsewhere, that he has a point and that the Shi’a are overwhelmingly not as sympathetic as they should be and it is in the details where we differ. But by all means put the onus on us Shi’a and criticize. I do,publicly.
But in the region, it is the responsibility of the majority to make us feel included, and trust me when I say we do not. “Miserable failure” is to do too much justice to what occurs, because it implies effort, and I see none of significance. It isn’t as if the Sunnis of the Arab world, again with significant if very limited exception, think the Bahraini Shi’a have a point and deserve better treatment with the difference being a matter of how repressed they are, it is that they think of the Bahraini Shi’a, and let’s be charitable and stick to elites, are sectarian Persians who deserved to be crushed. I wish in this Iraq’s Shi’a could see the frustrations of Iraq’s Sunnis, and more broadly I wish all of the Shi’a could see the frustrations of all the “others” out there in the Arab world—not just the Kurds whose plight I know from my wife, but the Copts of Egypt and the Berbers of Algeria and Morocco, the Jews of Tunisia, the blacks of the Sudan and Libya, and develop a more liberal and cosmopolitan outlook. I wish we might ourselves defend churches, because we know what it is to be laughed at when we are bombed. (Though to be fair, laughed at is a rather extreme response, most Sunnis I know would never do such a thing for murders at Ashura. They’d just ignore it. Wouldn’t appear on the blogs or the databases, ho hum a few Shi’a died, how about those Steelers anyway? Now if a few Shi’a beat up a Pakistani custodian in Manama, an awful deed to be sure of course, THAT’s worth not only the blogs and databases, swamping the blogs in fact, but also provides a convenient basis to turn away again from the suffering of the Shi’a. That’s the general educated response, even the academics’ response. The street is usually worse.) In any event, we Shi’a don’t rise to that occasion, and that’s tragic too. I sense a betrayal of our Holy Imam Hussein on the anniversary of his death when we do not sacrifice for all the downtrodden, feel their plight as our own. Such is the way of things in the sad state they are today.
In any event, I’m sure after a while I’ll cool down and realize what unites me with my other Arab brethren is greater than what divides me, that change comes slowly, that the revolutions convulsing the Arab world will not alter anything overnight, and that all we can do is work persistently, evenly, patiently with the like minded of good will, of which of course there are many (even if a small minority,still a great many) in both sects, and across religions, ethnicities, genders to achieve a better and more prosperous Middle East. It is a time to hope and not despair. So my head has told me from the day a fruit seller brought a tyrant to his knees.
But today is the day of Ashura, our sacred holy day, the day of the martyrdom of the Prophet’s grandson, and after all that has occurred, and in great physical and psychic exhaustion, I wish to give license to my heart and not my head, for just this day, just this once, so you know how we,the others in the Arab midst, feel. Here’s what I think today, or feel rather, straight from the heart.
Tyranny or democracy, it’s always the same in the Arab world. You won’t accept us, you won’t even make an effort to see the world through our eyes. You demand loyalty and offer no tolerance. You ask for support, and abandon us or are silent when our children our killed. When you come to accept the others, and all the others, Jew and Christian, Shi’i and Druze, black and Berber, when you hear an insult as against a Shi’i on his holy day you take it as an insult to you, when you see a church bombed, you take it as a mosque bombed, when some modicum of mutual respect, honor and tolerance reaches or even just perceptibly registers somehow in civil discourse, penetrates even one tenth of a millimeter, give us all a call, we’d love to join in. Until then, go fuck yourselves.
Your faithful Persian,
HAH
Regulation and Risk Sharing in Islamic Finance
I am contemplating a law review article, probably for March distribution, that centers itself around the following regulatory irony in Islamic finance.
Ask your average proponent of Islamic finance what it is about the practice that makes it conceptually distinctive from conventional finance, the answer is, invariably “profit sharing” or at times “risk sharing.” That is, when the Islamic bank engages in a murabaha transaction with a homeowner, it buys the house and sells it to the homeowner at a higher price. It is true that the markup reflects the prevailing interest rate, in fact it can be pegged to that rate. However, the home was owned by the bank and then sold to the homeowner, a purchase and sale of an asset was involved, and hence the transaction was fundamentally different. Some would say the mere formal process of purchase and sale was sufficient to make it different (that is how I read Frank Vogel’s work), but most proponents go further and say that it isn’t the mere formality, but also the fact that the bank took a risk, no matter how small, and but for this risk, there is no shari’a compliance. Certainly Usmani says this in his work Introduction to Islamic Finance. (I should note some say the profit must be commensurate with the risk taken to be compliant with Islamic finance, but I find this position so at odds with the realities of the practice, so absurdly fantastical as an expression of anything resembling actual human experience that is best discarded. Nevertheless, you find it in the books, and when you do, your eyes should roll.)
So far, so good. Or not really perhaps, as I’ve pointed out the risk is more hypothetical than real in huge numbers of sharia compliant transactions, but let’s not go there, let’s take this at its word, the transaction, we will posit for argument’s sake, is different because the bank takes a supposed and alleged risk by virtue of ownership.
Here’s the problem. Banks in the United States (really in keeping with banking everywhere, but I want to focus on the US regulatory environment) are not permitted to own real estate. They can lend money to someone else to enable them to own real estate (i.e. a mortgage) but the ownership of real property actually is risky and precisely the type of speculative investment we don’t want banks to make as the potential for loss becomes all too real, and the federal government backs those institutions.
Yet the Office of the Comptroller of the Currency does not want to prohibit Islamic finance, or regulate it out of existence, it’s a practice after all with real commercial value and it isn’t particularly harmful, except to the extent that mimicking conventional finance techniques and clothing them in Islamic garb is per se problematic. So the OCC in the US permits the murabaha transaction, precisely because it’s not really a risk of land ownership the bank is taking on, it’s just a formal hoop to jump through. In fact, let’s be more specific, the OCC permits the murabaha as a banking transaction on condition that both the risk of payment default and the risk by virtue of land ownership are zero, or more precisely stated are exactly what they would be for a conventional loan. In other words, Usmani’s distinction, that of additional risk by virtue of ownership cannot exist for a chartered bank to engage in the murabaha. It’s all there in the interpretive letter.
That’s the risk on the portfolio side. What about the depositor side, where again the argument is the relationship is that of a mudaraba, or silent partnership, where depositor and bank share in profits and losses? Again, it’s not actually what happens, but let’s go along with the proponents of Islamic finance and assume the possibility of a hypothetical loss, however small that possibility might be. Again, a problem, because depositors cannot lose money in bank deposits, again by regulation (they are federally insured remember), and so the hypothetical loss may not exist. So you have to guarantee the deposits against loss. As a result, upstream and downstream, for investment and depositor, the risk profile has to match conventional finance exactly, or the bank cannot be licensed. Profit sharing and risk sharing is not only a practice that is merely hypothetical in conception, it is also a violation of core regulatory practice.
You can see the tension, as between what regulation requires, and what Islamic finance demands of itself as core justificatory commitment. It’s worth exploring, and to see it explored, hang around and I’ll pull something together soon enough.
HAH
Interpretive Constraints and Interpretive Authorities
As I am sure I have indicated many times on this blog, and elsewhere, Islamic law scholars can at times be obsessed with the tragedy of the destruction of the traditional schools of thought within Sunni Islam, the guilds to borrow Makdisi's phrase, as the moment when Sunni Islam went astray, and something of a methodological and exegetical free for all (to misapply the phrase of friend of the blog Andrew March) started to take its place. As a Shi'i and one who has spent some time focused on Iraqi Shi'ism, I have always been somewhat skeptical. Our schools of thought did not disappear, and yet many of the problems that Islamic liberals tend to find in Sunni Islam exist in Shi'i Islam as well. It is true that we do not have September 11 bombers and we have identifiable scholars who condemn such activity (run through the Najaf Grand Four and you get four condemnations), but we aren't exactly egalitarian on matters of gender, to take an example. It is true that recognized authorities constrain interpretation, but constraint works both ways, against nutcases, but also against progressives. The main benefit of the academy it seems to me is not that it constrains, but rather that it elevates the level of discourse. The reasoning behind such actions as 9/11 given the classical prohibitions against targetting noncombatants (largely, it's a democracy so their vote is combat) is so ludicrous it's hard to take religious reasoning seriously when that's the essence of the claim being made. In any event, a subject much discussed already.
What I thought I would raise in this post is the fact that while constraint is facilitated by recognized juristic authorities, it is not necessary for it. That is to say, one should not assume that in the absence of a juristic school, there can be no constraints on activity. Islamic finance provides the best example of coherence in the absence of authority.
There is no practice perhaps more diffuse in terms of its rule making than Islamic finance. Yes AAOIFI is a standard setting body, as is the IFSB, but the standards are voluntary, and frequently, as in synthetic murabaha, violated. The contracts within Islamic finance are governed by New York and English law more than sharia. The only authorities who ensure that any given transaction is shari'a compliant are the sharia review board, which is three people usually selected by those organizing the transaction. Under such standards, you might expect a devolution into entire incoherence, as random groups declare things acceptable, others challenge it, and the Islamic finance world divides into countless little islands of disputatious sectlike practices that are hard to consider unified under any sensible rubric.
Yet this is far from the truth. While some, such as Malaysia, may decry some practices such as tawarruq, while others, such as the GCC, embrace them, the practice overall displays remarkable levels of coherence. There is innovation, but when it extends too far, it gets shut down (as in the sukuk a few years back), and there is a general consensus about what is acceptable and what is not. There are some, like me, who find the entire exercise silly as it is merely a mimicry of conventional finance, yet for those who believe in it, the methods used within the industry are remarkably if not uniform generally unified.
Of course, there are strong and sound commercial reasons for this, the money benefits from having a practice that both is amenable to the legal and economic results demanded by conventional financial techniques while still paying sufficient adherence to sharia form and vernacular as to retain some minimum level of credibility, and banks and law firms work with each other across transactions to help ensure this. The money, that is, drives much of this, both in terms of being responsive to global requirements and Muslim consumer demand.
Yet what it demonstrates, to my mind, is that the reason that there is no coherence within the Muslim community over so many other matters is not so much because they have no authorities to whom to turn, or rather, it's not solely because of that. It's also because, unlike those involved in the game of Islamic finance, those Muslims don't agree on very much from whcih to derive a common interpretation. When you don't share the same basic ideological and normative presuppositions, there isn't an intepretive authority in the world that will unite you. When you share them with others entirely, there is no need for an authority, It's the in between where the authority is helpful. What that means for an increasing divided American polity as to the role that the Supreme Court can continue to play as unquestioned interpretive authority, that I leave for others to consider.
HAH
