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
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
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
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