Islamic Law In Our Times
A Realist's Assessment of Contemporary Islamic Law
Islamic Law In Our Times
Death on the Fortieth
I tend to be dismissive of the previous administration's good and evil, with us or against us, cowboy attitudes toward everything. The idea that you cannot blink when facing the enemy (Sarah Palin's preferred phrasing) to me is more symptomatic of a studied refusal to reason than in any sort of genuine military tactic. There isn't a successful general anywhere who doesn't blink when facing the enemy. They don't just blink, they study the terrain and the conditions, the exhaustion of their troops, they make decisions on when to engage, or whether to engage or retreat tactically and fight another time. When Longfellow tells Lee to withdraw from Gettysburg prior to the battle, he isn't suggesting weakness, he is saying blink, because those guys have the high ground, it's an open field, they are going to destroy us. And Lee clearly should have blinked.
But while the notion of rushing forward like some sort of unthinking unblinking maniac into a foreign country without much of a post occupation plan is rather dumb, at times it seems to me that the left makes rather silly conflations of its own, and fails at times to understand the nature of Al Qaeda and its offshoots and affiliates, collectively this violent Sunni extremist enemy that threatens the United States, and the Muslim world even more quite frankly. (Yes Shi'a extremism is bad too, and threatens US interests of course as well, and so is neoNazi extremism but this post isn't about any of that.)
Here is what happened today. At one of Shi'i Islam's holiest of days, commemorating 40 days from the death of one of Shi'i Islam's holiest personalities, a parked car exploded at the entrance to one of Shi'i Islam's holiest cities, killing a few pilgrims who had come to the city on foot to commemorate. Though perhaps obvious, it bears mentioning that people who walk from Baghdad to Kerbala over a period of days and sleep on the dusty roads and eat whatever food the people of the villages en route can provide are neither decisionmakers nor businesspeople nor professionals, they are simple peasants or the urban poor, come to do a religious duty, and killed by a car bomb at the Qantara Salam gate en route to doing that. The fellow who used to clean my home goes every single year. I never met a kinder or gentler man in all my life. He told me the story, though it's on media outlets as well in largely similar form.
If only that first explosion were all. The car was parked, it was some distance away, it wasn't intended to do much damage. What it did was send a panicked throng of poor villager pilgrims straight back onto the highway and running toward the Holy Mosque, away from the bomb and toward the only Sanctuary they could identify. God and His Holy Imam, the Prophet's Grandson whose body is buried in the mosque surely would protect them they reasoned, get to the Mosque, the Tomb, and all will be well. So they ran on the road in that direction.
Which is precisely what the terrorists had figured they'd do, and which is precisely why they had a second bomb waiting for them on that road, this time detonated by a suicide bomber when the panicked crowd approached. Hundreds were injured, close to a hundred dead.
That's what happened, and the person who thinks you are going to get people who do a thing like that to stop doing it by getting a court to let Saleh Mutlaq and the others excluded from the elections back in, is every bit the roses and perfume hippie stereotype the Bushies would make him out to be.
Now I don't mind letting Mutlaq back in, in fact I tend to have the American bias of let everyone run and let's see who gets what, I'm happy to let Saddam's daughter run too, because I don't think her party will get 5% of the vote. I'll agree that reversing the exclusion would help with reconciliation of millions of disaffected Sunnis who feel shut out of the process. I think reasonable minds can disagree on how shut out Sunnis really are, but we should all agree that reconciliation is a good thing and should be encouraged and we should work towards it.
I don't see how that has a damn thing to do with what just happened at Kerbala, because what happened at Kerbala was perpetrated by people who you don't reconcile with. You don't reconcile with folks who send pilgrims straight into a suicide bomb. What you do to them is you find them, you capture them, you try them, and you punish them severely (I'd say stick needles in their arms but will pull short to avoid a death penalty debate which is a side show. I don't mind if you throw them in prison and toss out the key, I can live with a 3000 year sentence).
Yet for some reason these things are always linked. This stuff is supposed to be connected to the whole election episode. read any media account today and they discuss these events as if one has something to do with the other. The theory seems to be Mutlaq is not included in the elections, and violence rises, and now the court has seemed to let him in and this thing happens which means maybe what the court did isn't enough. As if some group of people is cooking eggs in the morning poring over the court's opinion trying to decide if it's done enough or if they should carry forward with their plan of killing as many poor people as they can who have come unarmed and without property of any kind really to perform a religious obligation. If we were talking of violence against a minister, or against an empty government building, I could understand the theory to some extent I suppose. But we're not. To suggest they are linked is to give this violence legitimacy it cannot possibly deserve, to conflate a reasonable (if contested) belief of insufficient inclusion with tactics so barbaric and inhumane they are painful even to describe.
The fact is the people who did this aren't interested in who is or is not participating in an election, they don't like elections at all. They're probably happy there are exclusions to make the elections seem less legitimate. So by all means let's have some national reconciliation, let's air all the grievances on all sides, because everyone has legitimate ones, Sunnis claim they are excluded, Shi'a claim that Sunnis are in denial of demographics, Kurds claim nothing is being done on Kirkuk, and ask for painful compromises from all. But the reason to do that is to avoid private militias and guerrilla groups, to create a strong state, a functional state, one that serves its citizens well by developing infrastructure, fostering investment, encouraging education, and harnessing its domestic talent. And, yes, absolutely, keeping pilgrims safe from the likes of Al Qaeda through the unabashed use of an iron fist. Iraqis applauded when Maliki did that against the Shi'a extremist Mahdi Army in Basra, they'll applaud when he does it against Al Qaeda. It's got nothing to do with reconciliation, everything to do with crushing an implacable enemy which deserves nothing more than its own destruction.
HAH
But while the notion of rushing forward like some sort of unthinking unblinking maniac into a foreign country without much of a post occupation plan is rather dumb, at times it seems to me that the left makes rather silly conflations of its own, and fails at times to understand the nature of Al Qaeda and its offshoots and affiliates, collectively this violent Sunni extremist enemy that threatens the United States, and the Muslim world even more quite frankly. (Yes Shi'a extremism is bad too, and threatens US interests of course as well, and so is neoNazi extremism but this post isn't about any of that.)
Here is what happened today. At one of Shi'i Islam's holiest of days, commemorating 40 days from the death of one of Shi'i Islam's holiest personalities, a parked car exploded at the entrance to one of Shi'i Islam's holiest cities, killing a few pilgrims who had come to the city on foot to commemorate. Though perhaps obvious, it bears mentioning that people who walk from Baghdad to Kerbala over a period of days and sleep on the dusty roads and eat whatever food the people of the villages en route can provide are neither decisionmakers nor businesspeople nor professionals, they are simple peasants or the urban poor, come to do a religious duty, and killed by a car bomb at the Qantara Salam gate en route to doing that. The fellow who used to clean my home goes every single year. I never met a kinder or gentler man in all my life. He told me the story, though it's on media outlets as well in largely similar form.
If only that first explosion were all. The car was parked, it was some distance away, it wasn't intended to do much damage. What it did was send a panicked throng of poor villager pilgrims straight back onto the highway and running toward the Holy Mosque, away from the bomb and toward the only Sanctuary they could identify. God and His Holy Imam, the Prophet's Grandson whose body is buried in the mosque surely would protect them they reasoned, get to the Mosque, the Tomb, and all will be well. So they ran on the road in that direction.
Which is precisely what the terrorists had figured they'd do, and which is precisely why they had a second bomb waiting for them on that road, this time detonated by a suicide bomber when the panicked crowd approached. Hundreds were injured, close to a hundred dead.
That's what happened, and the person who thinks you are going to get people who do a thing like that to stop doing it by getting a court to let Saleh Mutlaq and the others excluded from the elections back in, is every bit the roses and perfume hippie stereotype the Bushies would make him out to be.
Now I don't mind letting Mutlaq back in, in fact I tend to have the American bias of let everyone run and let's see who gets what, I'm happy to let Saddam's daughter run too, because I don't think her party will get 5% of the vote. I'll agree that reversing the exclusion would help with reconciliation of millions of disaffected Sunnis who feel shut out of the process. I think reasonable minds can disagree on how shut out Sunnis really are, but we should all agree that reconciliation is a good thing and should be encouraged and we should work towards it.
I don't see how that has a damn thing to do with what just happened at Kerbala, because what happened at Kerbala was perpetrated by people who you don't reconcile with. You don't reconcile with folks who send pilgrims straight into a suicide bomb. What you do to them is you find them, you capture them, you try them, and you punish them severely (I'd say stick needles in their arms but will pull short to avoid a death penalty debate which is a side show. I don't mind if you throw them in prison and toss out the key, I can live with a 3000 year sentence).
Yet for some reason these things are always linked. This stuff is supposed to be connected to the whole election episode. read any media account today and they discuss these events as if one has something to do with the other. The theory seems to be Mutlaq is not included in the elections, and violence rises, and now the court has seemed to let him in and this thing happens which means maybe what the court did isn't enough. As if some group of people is cooking eggs in the morning poring over the court's opinion trying to decide if it's done enough or if they should carry forward with their plan of killing as many poor people as they can who have come unarmed and without property of any kind really to perform a religious obligation. If we were talking of violence against a minister, or against an empty government building, I could understand the theory to some extent I suppose. But we're not. To suggest they are linked is to give this violence legitimacy it cannot possibly deserve, to conflate a reasonable (if contested) belief of insufficient inclusion with tactics so barbaric and inhumane they are painful even to describe.
The fact is the people who did this aren't interested in who is or is not participating in an election, they don't like elections at all. They're probably happy there are exclusions to make the elections seem less legitimate. So by all means let's have some national reconciliation, let's air all the grievances on all sides, because everyone has legitimate ones, Sunnis claim they are excluded, Shi'a claim that Sunnis are in denial of demographics, Kurds claim nothing is being done on Kirkuk, and ask for painful compromises from all. But the reason to do that is to avoid private militias and guerrilla groups, to create a strong state, a functional state, one that serves its citizens well by developing infrastructure, fostering investment, encouraging education, and harnessing its domestic talent. And, yes, absolutely, keeping pilgrims safe from the likes of Al Qaeda through the unabashed use of an iron fist. Iraqis applauded when Maliki did that against the Shi'a extremist Mahdi Army in Basra, they'll applaud when he does it against Al Qaeda. It's got nothing to do with reconciliation, everything to do with crushing an implacable enemy which deserves nothing more than its own destruction.
HAH
Environmentalism and Islam in Our Times
If ever there was doubt that some sort of theory of environmentalism has taken root within modern Islamic discourse, Osama Bin Laden's recent diatribe against the West for global warming of all things probably puts an end to the matter. When the homicidal Bin Laden advocates some sort of ethic of environmentalism, you know this idea that in Islam we protect the environment has gone viral.
There are I think a few interesting observations that might be made about this. The most obvious is that it demonstrates I think a new direction to Islamic fervor that I have been writing about, see this piece on what I call the Death of Islamic Law. The piece itself focusses on what is the true source of law in Muslim societies. Shari'a might be selectively enacted by the state, and Islamist and secularist will not be engaged in debate about how much selective enactment there should be. But at the end of the day, selectivity is the standard to which all adhere, really conservative Islamic Party and really secular party alike, using no yardstick and no consistent standard (repugnancy is not a consistent standard in application anywhere, Islamic constitutionalism is therefore deeply overrated, that's part IV of the piece). Islamic law is really in our times for ALL (including Islamist groups) therefore just a set of ideas that a state might want to think about as it develops its largely transplanted legal and political system, nobody wants a comprehensive Islamic system based on classical juristic theory, everyone wants to drop some of those rules for Western transplants, the only question is where, and how many.
The objection I am receiving most often to this is one that seems to conflate "The Death of Islamic Law" by which I mean the use of fiqh as a means to create a legal system, as opposed to supply a few useful ideas here and there, with "The Death of Islam" which would mean nobody cares about the religion anymore. The latter I think you'd have to be living in a cave to think, but that Islam is important does not mean that "Islamic law" is the basis of the legal or political system.
Environmentalism is a good place to explore this precisely because there is no "Islamic law" on environmentalism, the vast corpus of rules that comprise the shari'a have no material on it. Go to the classical sources, you're not going to have an outline of what types of environmental practices are permitted, what are not, Sarakhsi has no Book on Ecology, nor does Qarafi or Kasani or anyone else. So whatever differences I have with many of my Islamic law studying colleagues on the importance of the integrity of the so-called legal tradition to Islam in understanding modern Islamic practices, I think they'd have to agree that in some areas, like environmentalism, the legal traditon isn't that relevant because it has nothing to say, and environmentalism is one of those areas. (Just as I'd have to concede on the limited nature of the relevance of the tradition in other areas where there were detailed rules and they still have some application of course).
Nor is shari'a going to be extended in any sort of fiqh like manner to cover environmentalism in any sort of comprehensive fashion. I don't doubt one might get clerics to start indicating that littering is a sin, or even edicts from Najaf, say, to Baghdad, that it is a government's obligation under Islam to clean the streets of trash, but that's not a legal system. That's random rules inspired from an ethic that are neither comprehensive, nor complete. Does Islam support cap and trade? Is recycling paper required by Islam? What if there is no recycling facility within 200 miles? What if one is 10 miles away but a person has no car? And so forth. And those, including perhaps not a few American Muslims, rolling their eyes and thinking "who approaches religion like that, you're missing the 'spirit' of the faith" should take a look at any classical work on shari'a, or any modern Najaf jurist for that matter and examine for themselves whether or not such casuistic hair splitting is or is not the essence of our legal tradition, because it is. I'm not suggesting that's a bad thing, or a good thing, but if we're going to talk of the legal tradtion, that's the tradition.
No, what you have instead in environmentalism is an environmental ethic, not a shari'a system. I would certainly argue that it is not one mandated by sacred text, the SAME verses used to support this ethic were used when I was a child to suggest environmentalism was a Western plot with no recognition in Islam. Essentially, and in dramatically reduced form, the pro-environment theory arises from the fact that the Qur'an is replete with verses pointing out the glory of creation, the heavens, the earth, the trees, the mountains, the stars, and so forth, as evidence of God's Beneficence. Humanity is left as khalifa, or God's representative, of this bounty. A fortiori, the representative has an obligation to protect his Lord's interests,which is the environment. Absolutely workable, absolutely legitimate.
But you could take those same verses, as people did in the 1970's, to prove its opposite. The bounty of the heavens and the earth is often, though not always, tied to humanity's exploitation of them, which God encourages. The verses do thus indicate that God spread the earth like a carpet before man so that he could travel on it, he made water in a manner that allowed ships to travel over it, he provided animals that could be eaten, springs that could be drunk, and from this a "representative" isn't one who has to protect it, but to turn it to humanity's use, to find more means (like digging for oil) through which God's bounty for humanity might be used by humanity. In the Qur'an, Mary is dying of thirst and God tells her to shake from this root, and from it will spring clear water. It is not a fantastic leap of imagination to move from this to an impoverished society that miraculously discovers oil beneath its worthless sand. Not to exploit that land is like turning down God's gift.
So certainly the doctrine is contingent,as all doctrine is, but as noted at the outset, when Bin Laden starts to advocate the first of these, the pro-environmental stance, it's fairly clear the stars are aligned for now in its direction. And in our times, with Islamic fervor running high, that might well mean that Islam will be used as an ethic to advance environmental policy, at least in rhetoric. But that's different from saying that "Islamic law" has to control the outcome in an Islamic state and people demand an Islamic state. In environmentalism, that's easy to see because there is no law to speak above. You're not going to be able to stand up in a legislature and demand cap and trade because God's Law is superior to man's law, you don't have the resources in the legal tradition to make that claim plausibly, the most you'll be able to say is God wants us to preserve the environment and this is the best way to do it. And that might well have some influence. And other points might have influence too, among them "this will cost too much", "my constituency could use the work", "the oil companies bribed me to say no" and who knows what else. The decision ultimatley taken is thus influenced by a strong ethic of Islam, and other factors, and the state decides which of these it's going to adopt. Islam counts, but so do other things that claim no heritage and no basis in Islam. It's not that political influences affect the outcome of what is Islamic, it's that the state uses Islam as one of many factors, in determining an outcome.
I'd only argue the same holds true when Islamic "law" is in play, that in other areas when the legislator can shout it's God's Law and you have to follow it and has rules she can bring forward with unquestined pedigree, she doesn't really mean that. She doesn't say that for all rules of fiqh which she's have to if she is serious. Instead, she consciously adopts (or more likely quietly supports) rules from Western law that have no basis in fiqh in other areas, my paper uses negligenceas the example, there are others. So the question "is codification of Islamic law a distortion of Islamic law", a debate my colleagues love after first posed by Schacht fifty years ago, to me is a red herring. who cares? The reason I say who cares is that even if it isn't, certainly in any state I can think of, codifications are more often than not NOT grounded in Islamic law but Western transplant, and that includes Iran and that includes Saudi and that includes the Tanzimat codificatins of the Ottomans except the Mecelle. Read Iran's Civil Code and explain to me how its definition of contract is based on Shi'i rules set forth by the Grand Ayatollahs. It's not, the theories of the Ayatollahs have been ignored in favor of French transplant, and that in a state run by Ayatollahs. That's worthy of some thought right there. If "God's Law is superior to man's", the rhetoric that supports countless Islamist movements, was real to them, how could you explain this?
I don't think you can, except by rendering this idea obsolete and more rhetoric than reality. Islamic law, thus, really isn't "law" anymore, it's more a political influence, one of many, to which the state might pay attention as it decides on a proper course of action with respect to any given field of law, accorded no more prima facie validity than a competing draft of legislation in the same area by a lobby which decries the use of shari'a in a modern state. State decides what to do then. Read the paper for more, welcome your comments after you've read it.
HAH
There are I think a few interesting observations that might be made about this. The most obvious is that it demonstrates I think a new direction to Islamic fervor that I have been writing about, see this piece on what I call the Death of Islamic Law. The piece itself focusses on what is the true source of law in Muslim societies. Shari'a might be selectively enacted by the state, and Islamist and secularist will not be engaged in debate about how much selective enactment there should be. But at the end of the day, selectivity is the standard to which all adhere, really conservative Islamic Party and really secular party alike, using no yardstick and no consistent standard (repugnancy is not a consistent standard in application anywhere, Islamic constitutionalism is therefore deeply overrated, that's part IV of the piece). Islamic law is really in our times for ALL (including Islamist groups) therefore just a set of ideas that a state might want to think about as it develops its largely transplanted legal and political system, nobody wants a comprehensive Islamic system based on classical juristic theory, everyone wants to drop some of those rules for Western transplants, the only question is where, and how many.
The objection I am receiving most often to this is one that seems to conflate "The Death of Islamic Law" by which I mean the use of fiqh as a means to create a legal system, as opposed to supply a few useful ideas here and there, with "The Death of Islam" which would mean nobody cares about the religion anymore. The latter I think you'd have to be living in a cave to think, but that Islam is important does not mean that "Islamic law" is the basis of the legal or political system.
Environmentalism is a good place to explore this precisely because there is no "Islamic law" on environmentalism, the vast corpus of rules that comprise the shari'a have no material on it. Go to the classical sources, you're not going to have an outline of what types of environmental practices are permitted, what are not, Sarakhsi has no Book on Ecology, nor does Qarafi or Kasani or anyone else. So whatever differences I have with many of my Islamic law studying colleagues on the importance of the integrity of the so-called legal tradition to Islam in understanding modern Islamic practices, I think they'd have to agree that in some areas, like environmentalism, the legal traditon isn't that relevant because it has nothing to say, and environmentalism is one of those areas. (Just as I'd have to concede on the limited nature of the relevance of the tradition in other areas where there were detailed rules and they still have some application of course).
Nor is shari'a going to be extended in any sort of fiqh like manner to cover environmentalism in any sort of comprehensive fashion. I don't doubt one might get clerics to start indicating that littering is a sin, or even edicts from Najaf, say, to Baghdad, that it is a government's obligation under Islam to clean the streets of trash, but that's not a legal system. That's random rules inspired from an ethic that are neither comprehensive, nor complete. Does Islam support cap and trade? Is recycling paper required by Islam? What if there is no recycling facility within 200 miles? What if one is 10 miles away but a person has no car? And so forth. And those, including perhaps not a few American Muslims, rolling their eyes and thinking "who approaches religion like that, you're missing the 'spirit' of the faith" should take a look at any classical work on shari'a, or any modern Najaf jurist for that matter and examine for themselves whether or not such casuistic hair splitting is or is not the essence of our legal tradition, because it is. I'm not suggesting that's a bad thing, or a good thing, but if we're going to talk of the legal tradtion, that's the tradition.
No, what you have instead in environmentalism is an environmental ethic, not a shari'a system. I would certainly argue that it is not one mandated by sacred text, the SAME verses used to support this ethic were used when I was a child to suggest environmentalism was a Western plot with no recognition in Islam. Essentially, and in dramatically reduced form, the pro-environment theory arises from the fact that the Qur'an is replete with verses pointing out the glory of creation, the heavens, the earth, the trees, the mountains, the stars, and so forth, as evidence of God's Beneficence. Humanity is left as khalifa, or God's representative, of this bounty. A fortiori, the representative has an obligation to protect his Lord's interests,which is the environment. Absolutely workable, absolutely legitimate.
But you could take those same verses, as people did in the 1970's, to prove its opposite. The bounty of the heavens and the earth is often, though not always, tied to humanity's exploitation of them, which God encourages. The verses do thus indicate that God spread the earth like a carpet before man so that he could travel on it, he made water in a manner that allowed ships to travel over it, he provided animals that could be eaten, springs that could be drunk, and from this a "representative" isn't one who has to protect it, but to turn it to humanity's use, to find more means (like digging for oil) through which God's bounty for humanity might be used by humanity. In the Qur'an, Mary is dying of thirst and God tells her to shake from this root, and from it will spring clear water. It is not a fantastic leap of imagination to move from this to an impoverished society that miraculously discovers oil beneath its worthless sand. Not to exploit that land is like turning down God's gift.
So certainly the doctrine is contingent,as all doctrine is, but as noted at the outset, when Bin Laden starts to advocate the first of these, the pro-environmental stance, it's fairly clear the stars are aligned for now in its direction. And in our times, with Islamic fervor running high, that might well mean that Islam will be used as an ethic to advance environmental policy, at least in rhetoric. But that's different from saying that "Islamic law" has to control the outcome in an Islamic state and people demand an Islamic state. In environmentalism, that's easy to see because there is no law to speak above. You're not going to be able to stand up in a legislature and demand cap and trade because God's Law is superior to man's law, you don't have the resources in the legal tradition to make that claim plausibly, the most you'll be able to say is God wants us to preserve the environment and this is the best way to do it. And that might well have some influence. And other points might have influence too, among them "this will cost too much", "my constituency could use the work", "the oil companies bribed me to say no" and who knows what else. The decision ultimatley taken is thus influenced by a strong ethic of Islam, and other factors, and the state decides which of these it's going to adopt. Islam counts, but so do other things that claim no heritage and no basis in Islam. It's not that political influences affect the outcome of what is Islamic, it's that the state uses Islam as one of many factors, in determining an outcome.
I'd only argue the same holds true when Islamic "law" is in play, that in other areas when the legislator can shout it's God's Law and you have to follow it and has rules she can bring forward with unquestined pedigree, she doesn't really mean that. She doesn't say that for all rules of fiqh which she's have to if she is serious. Instead, she consciously adopts (or more likely quietly supports) rules from Western law that have no basis in fiqh in other areas, my paper uses negligenceas the example, there are others. So the question "is codification of Islamic law a distortion of Islamic law", a debate my colleagues love after first posed by Schacht fifty years ago, to me is a red herring. who cares? The reason I say who cares is that even if it isn't, certainly in any state I can think of, codifications are more often than not NOT grounded in Islamic law but Western transplant, and that includes Iran and that includes Saudi and that includes the Tanzimat codificatins of the Ottomans except the Mecelle. Read Iran's Civil Code and explain to me how its definition of contract is based on Shi'i rules set forth by the Grand Ayatollahs. It's not, the theories of the Ayatollahs have been ignored in favor of French transplant, and that in a state run by Ayatollahs. That's worthy of some thought right there. If "God's Law is superior to man's", the rhetoric that supports countless Islamist movements, was real to them, how could you explain this?
I don't think you can, except by rendering this idea obsolete and more rhetoric than reality. Islamic law, thus, really isn't "law" anymore, it's more a political influence, one of many, to which the state might pay attention as it decides on a proper course of action with respect to any given field of law, accorded no more prima facie validity than a competing draft of legislation in the same area by a lobby which decries the use of shari'a in a modern state. State decides what to do then. Read the paper for more, welcome your comments after you've read it.
HAH
The Real Electoral Crisis in Iraq
For those of us who are comparatists by profession, we are I think to a person sensitive to what I might call the transference fallacy. This is the glib and unthoughtful effort to transfer of a set of lessons learned in one place into another without stopping to consider whether the lessons drawn are really the right ones given the different contexts, indeed without thinking about the contexts of all. I accuse the popular media and most policy experts of doing precisely this with Iraq as concerns the current electoral crisis.
The crisis, for those unaware, is that some hardline Sunnis, and some Shi'a (it is about a 50-50 split, conveniently ignored in the telling of the story elsewhere) have been excluded from the upcoming election, most notably Sunni hardliner Saleh Mutlaq, which has been disconcerting enough for the US to send Joe Biden out to mediate. (From my time in Baghdad, if I learned one thing, it's that the US will delay the Second Coming of Christ if necessary to get this election off, successfully, so they can start their major withdrawals. Any threat to the timetable or legitimacy of the election is taken very seriously, and this is precisely such a threat.)
Now if you are a journalist, meaning a reasonably intelligent person with some knowledge of the place but no more than 15 minutes to think about it before putting pen to paper, you might end up embracing the fallacy as follows:
In Iran, or Afghanistan, indeed generally, the reason you exclude candidates is because they might end up beating you. They are a threat to your victory, so you have to move them aside. This is also an attempt at electoral exclusion. Therefore, Saleh Mutlaq and his party, and Bolani and his party, are secularists who might end up beating Maliki and so Maliki is trying to move them out of the picture, so they don't weaken him.
The problem is, you'd have to be living in some sort of cave to think that the dominant parties after the next election are going to be anything but Shi'a middle Islamist. Mutlaq himself, the so called patriot of this tale, is actually a hardline borderline bigot, a man who has had the temerity to describe a vast number of his countrymen as being more loyal to Iran than Iraq, whose party members have referred to Kurds as locusts, and whose base of support is therefore the Sunni heartland, and if he's lucky give him 15% of the urban secular Shi'a vote. He is no electoral threat, Allawi his partner is no electoral threat, they will be a loud and perhaps annoying party in the upcoming legislative session, but really, the idea that Maliki is scared of him is silly. He can't touch Maliki's base and honestly Maliki can't reach his either. Ban Mutlaq or leave him, he won't get those votes.
So the model is wrong, Mutlaq is despised by overwhelming majorities of Kurds and Shi'a, he isn't going to win anything. But then why exclude him, earn America's concern, Sunni wrath and the rest of it? Why not let him run like the Chinese let democratic advocates run in HK so long as their minority status is assured as surely it is here?
The reason, simply enough, is that Maliki will lose votes if he tries to relent. Not to Saleh Mutlaq, that's silly. To the INA, the other Shi'a party. The reality is that the Shi'a by and large, the base, the religious core that dominate the Shi'a, are deeply, fundamentally, viscerally anti-Ba'ath, and former members of the party make them sick. Mutlaq's efforts to woo the former Ba'athists back, promising to be their vehicle, has offended the base. So at some point, a move was made to exclude the guy, one couched in the language of law by the way (making overt political interventions theoretically off limits, but as I mentioned two posts ago, America isn't so concerned about the rule of law when its interests are threatened). At that point, Sunni ire was raised, but so was Shi'a rage, less reported in the Western news though prevalent in Iraqi media. The Shia don't want him around, and there are two coalitions vying for the Shia vote, the INA and Maliki's Rule of Law. If Maliki backs down, the INA is going to use it to the last day, "Maliki, friend of the Ba'ath and friend of Saleh Mutlaq" their outlets will say. He's not scared of Mutlaq, he's scared of looking like a friend of Mutlaq, which would be electoral disaster for him. He cannot do that, and if the New York Times wants Maliki to ignore the constituency and do it anyway, well then frankly democratizing the place wasn't the way to go. You can't call for elections and then get upset when people who aren't liberals don't vote liberal and their officials don't act liberal. What the hell did you expect?
What's the REAL lesson we then learn from this? That Iraq's Shi'a and Sunni communities remain bitterly divided over the form of the state and the exercise of power within it. One leans to soft federalism and wants harsh justice for all Ba'athis of the past, stringing them to the lamposts if you can, banning them from politics if you cannot, and that includes people who left the party in the 70's. Sort of like banning LA from the playoffs because they stole the Dodgers fifty years ago. The other is quite enamored of the former Ba'ath and more or less seeks a return to their rule, (and implicitly Sunni resurgence within it). Not in terms of the disaster of Saddam, Saddam's Ba'ath predecessor is more the model, a strong and when necessary brutal central government that keeps people (ie other groups) in line.
Now that you know the problem, imagine trying to solve THAT by early March. You can't, all you might be able to do is paper over the problem, delay it for another day, something Iraqi officials have become deft at over the past half decade. But solving it? Impossible.
Haider
The crisis, for those unaware, is that some hardline Sunnis, and some Shi'a (it is about a 50-50 split, conveniently ignored in the telling of the story elsewhere) have been excluded from the upcoming election, most notably Sunni hardliner Saleh Mutlaq, which has been disconcerting enough for the US to send Joe Biden out to mediate. (From my time in Baghdad, if I learned one thing, it's that the US will delay the Second Coming of Christ if necessary to get this election off, successfully, so they can start their major withdrawals. Any threat to the timetable or legitimacy of the election is taken very seriously, and this is precisely such a threat.)
Now if you are a journalist, meaning a reasonably intelligent person with some knowledge of the place but no more than 15 minutes to think about it before putting pen to paper, you might end up embracing the fallacy as follows:
In Iran, or Afghanistan, indeed generally, the reason you exclude candidates is because they might end up beating you. They are a threat to your victory, so you have to move them aside. This is also an attempt at electoral exclusion. Therefore, Saleh Mutlaq and his party, and Bolani and his party, are secularists who might end up beating Maliki and so Maliki is trying to move them out of the picture, so they don't weaken him.
The problem is, you'd have to be living in some sort of cave to think that the dominant parties after the next election are going to be anything but Shi'a middle Islamist. Mutlaq himself, the so called patriot of this tale, is actually a hardline borderline bigot, a man who has had the temerity to describe a vast number of his countrymen as being more loyal to Iran than Iraq, whose party members have referred to Kurds as locusts, and whose base of support is therefore the Sunni heartland, and if he's lucky give him 15% of the urban secular Shi'a vote. He is no electoral threat, Allawi his partner is no electoral threat, they will be a loud and perhaps annoying party in the upcoming legislative session, but really, the idea that Maliki is scared of him is silly. He can't touch Maliki's base and honestly Maliki can't reach his either. Ban Mutlaq or leave him, he won't get those votes.
So the model is wrong, Mutlaq is despised by overwhelming majorities of Kurds and Shi'a, he isn't going to win anything. But then why exclude him, earn America's concern, Sunni wrath and the rest of it? Why not let him run like the Chinese let democratic advocates run in HK so long as their minority status is assured as surely it is here?
The reason, simply enough, is that Maliki will lose votes if he tries to relent. Not to Saleh Mutlaq, that's silly. To the INA, the other Shi'a party. The reality is that the Shi'a by and large, the base, the religious core that dominate the Shi'a, are deeply, fundamentally, viscerally anti-Ba'ath, and former members of the party make them sick. Mutlaq's efforts to woo the former Ba'athists back, promising to be their vehicle, has offended the base. So at some point, a move was made to exclude the guy, one couched in the language of law by the way (making overt political interventions theoretically off limits, but as I mentioned two posts ago, America isn't so concerned about the rule of law when its interests are threatened). At that point, Sunni ire was raised, but so was Shi'a rage, less reported in the Western news though prevalent in Iraqi media. The Shia don't want him around, and there are two coalitions vying for the Shia vote, the INA and Maliki's Rule of Law. If Maliki backs down, the INA is going to use it to the last day, "Maliki, friend of the Ba'ath and friend of Saleh Mutlaq" their outlets will say. He's not scared of Mutlaq, he's scared of looking like a friend of Mutlaq, which would be electoral disaster for him. He cannot do that, and if the New York Times wants Maliki to ignore the constituency and do it anyway, well then frankly democratizing the place wasn't the way to go. You can't call for elections and then get upset when people who aren't liberals don't vote liberal and their officials don't act liberal. What the hell did you expect?
What's the REAL lesson we then learn from this? That Iraq's Shi'a and Sunni communities remain bitterly divided over the form of the state and the exercise of power within it. One leans to soft federalism and wants harsh justice for all Ba'athis of the past, stringing them to the lamposts if you can, banning them from politics if you cannot, and that includes people who left the party in the 70's. Sort of like banning LA from the playoffs because they stole the Dodgers fifty years ago. The other is quite enamored of the former Ba'ath and more or less seeks a return to their rule, (and implicitly Sunni resurgence within it). Not in terms of the disaster of Saddam, Saddam's Ba'ath predecessor is more the model, a strong and when necessary brutal central government that keeps people (ie other groups) in line.
Now that you know the problem, imagine trying to solve THAT by early March. You can't, all you might be able to do is paper over the problem, delay it for another day, something Iraqi officials have become deft at over the past half decade. But solving it? Impossible.
Haider
America's Two Muslim Communities
If you go to any city in the United States with a Muslim community of almost any size, you are nearly guaranteed to find at least two mosques. One of those mosques will be largely African American, and the other will be largely immigrant. This split is far more common even than a Sunni Shi'a split. Until the Shi'a community reaches a particular nucleus, they often don't even bother with a separate mosque, they might do Shi'a things in homes and the like, but otherwise go to the Sunni mosque. But there will almost certainly be a separate mosque for African Americans. Growing up in Columbus Ohio this was certainly the case, and even here in Pittsburgh where there is a Shi'a mosque, it was opened recently, long after there were several Sunni mosques, among which were, as you might guess, predominantly African American mosques and predominantly immigrant mosques.
At one level, to one focussed more on doctrine than the social context in which that doctrine is located, this is perplexing. Islam is nothing if not race neutral, particularly in our time, particularly on a docrinal level. Why wouldn't the substantially more significant Sunni-Shi'a split, with the thorny questions about the first three caliphs, the doctrine of the Imamate, the notion of the returning Mahdi, end up being the first division? Why would it be black and immigrant when they're both Sunni and more or less believe the exact same thing?
To those of us more accustomed to looking at things in their social context, the Realists, it's not so surprising. First, America is a society riven by race in myriad ways. Whether it's television shows, movies, the people a person chooses as friends, neighborhoods, schools, there is a stark divide between black and white that is quite clear in American society that only a fool would fail to recognize immediately. Second, when brown people from other countries move into that social space, they effectively have to decide which of these two camps they are going to belong to. Are they going to be like white people, or are they going to be like black people. And to the legitimate dismay of African American Muslims, they almost always choose to be white people, and yes I think racism has something to do with that. Not Bull Connor racism, of course, American Muslims of the immigrant variety inhabit the social space of contemporary America, not 1950's Alabama, so it's not like they won't pray behind black people, or won't let a black imam lead the prayer, or will bar the doors to black people entering the mosque, any more than white people today demonstrate to prevent blacks from entering their schools. Most American Muslims would react violently to the notion that they are racist, they would regard it as the same insult that white Americans would. But if the question becomes do they want their daughters marrying African Americans, and let's make it easy and say African American Muslims, I think you'd find those preferring that over those preferring a white non Muslim entirely would be a very small minority. this despite the doctrinal ban on interfaith marriages of this sort (Muslim women can only marry Muslim men, reverse though it's a bit more open) and, as noted above, total race neutrality on marriage as a doctrinal matter.
But it's not just racism that causes them to choose to be white on the white black divide. Immigrants who come to the US tend to be from communities and places where they have had exposure to an America that isn't black, both in visitors who have come to them, in the colleagues who go to them to teach, and the like.
It really doesn't matter what the reason is, the point is, Muslims enter the US, and their doctrine doesn't recreate the social space, rather they adapt themselves to the social space. They adjust themselves to the social space, it becomes their lived practice. They become "white", they have white friends and like white movies and live in white suburban neighborhoods. And like most whites, they tend to forget there's a whole group of underprivileged black people living not too far away, such that the difference between the immigrant mosque and the black mosque in terms of facilities and their disrepair is rather stark. Again, not overt racism, more benign neglect. An African American imam if he comes to the immigrant mosque and tells the tale of his mosque, and of course he'll be invited, might gather a lot of cash, he will gather a lot of cash actually. What he won't gather is many visitors even if he pleads that they come take a look. A few might think about it, fewer still might venture over once or twice, and that will be that. The immigrants mean well, but they don't treat the brother as their own, they neglect the whole notion of the race blind brotherhood they are supposed to be following from the sacred texts, they send far more money back to their home countries for charity than they do to their coreligionists in the same city.
They adapt, that is, their doctrine to the social space, not so much by overtly changing the doctrine, but more by practicing parts and ignoring other parts to match the social space, which in this context is America's perduring racial divide. It's not pretty, in fact it's rather shameful and ugly, and even if I've overstated my case (meaning there is more cooperation and more intervisitation than I've allowed in these short remarks), that divide, among American Muslims, is tragically more real than I think many of us care to admit.
HAH
At one level, to one focussed more on doctrine than the social context in which that doctrine is located, this is perplexing. Islam is nothing if not race neutral, particularly in our time, particularly on a docrinal level. Why wouldn't the substantially more significant Sunni-Shi'a split, with the thorny questions about the first three caliphs, the doctrine of the Imamate, the notion of the returning Mahdi, end up being the first division? Why would it be black and immigrant when they're both Sunni and more or less believe the exact same thing?
To those of us more accustomed to looking at things in their social context, the Realists, it's not so surprising. First, America is a society riven by race in myriad ways. Whether it's television shows, movies, the people a person chooses as friends, neighborhoods, schools, there is a stark divide between black and white that is quite clear in American society that only a fool would fail to recognize immediately. Second, when brown people from other countries move into that social space, they effectively have to decide which of these two camps they are going to belong to. Are they going to be like white people, or are they going to be like black people. And to the legitimate dismay of African American Muslims, they almost always choose to be white people, and yes I think racism has something to do with that. Not Bull Connor racism, of course, American Muslims of the immigrant variety inhabit the social space of contemporary America, not 1950's Alabama, so it's not like they won't pray behind black people, or won't let a black imam lead the prayer, or will bar the doors to black people entering the mosque, any more than white people today demonstrate to prevent blacks from entering their schools. Most American Muslims would react violently to the notion that they are racist, they would regard it as the same insult that white Americans would. But if the question becomes do they want their daughters marrying African Americans, and let's make it easy and say African American Muslims, I think you'd find those preferring that over those preferring a white non Muslim entirely would be a very small minority. this despite the doctrinal ban on interfaith marriages of this sort (Muslim women can only marry Muslim men, reverse though it's a bit more open) and, as noted above, total race neutrality on marriage as a doctrinal matter.
But it's not just racism that causes them to choose to be white on the white black divide. Immigrants who come to the US tend to be from communities and places where they have had exposure to an America that isn't black, both in visitors who have come to them, in the colleagues who go to them to teach, and the like.
It really doesn't matter what the reason is, the point is, Muslims enter the US, and their doctrine doesn't recreate the social space, rather they adapt themselves to the social space. They adjust themselves to the social space, it becomes their lived practice. They become "white", they have white friends and like white movies and live in white suburban neighborhoods. And like most whites, they tend to forget there's a whole group of underprivileged black people living not too far away, such that the difference between the immigrant mosque and the black mosque in terms of facilities and their disrepair is rather stark. Again, not overt racism, more benign neglect. An African American imam if he comes to the immigrant mosque and tells the tale of his mosque, and of course he'll be invited, might gather a lot of cash, he will gather a lot of cash actually. What he won't gather is many visitors even if he pleads that they come take a look. A few might think about it, fewer still might venture over once or twice, and that will be that. The immigrants mean well, but they don't treat the brother as their own, they neglect the whole notion of the race blind brotherhood they are supposed to be following from the sacred texts, they send far more money back to their home countries for charity than they do to their coreligionists in the same city.
They adapt, that is, their doctrine to the social space, not so much by overtly changing the doctrine, but more by practicing parts and ignoring other parts to match the social space, which in this context is America's perduring racial divide. It's not pretty, in fact it's rather shameful and ugly, and even if I've overstated my case (meaning there is more cooperation and more intervisitation than I've allowed in these short remarks), that divide, among American Muslims, is tragically more real than I think many of us care to admit.
HAH
On the Chimera of the Rule of Law in the New Iraq
Fans of the blog may well note that I've grown increasingly skeptical of the term "rule of law" over the past several years, mainly because I am not sure what it's supposed to mean, other than something we in the U.S. have that other countries don't and it is our American Burden to pass it on to them. Or something. Recent events in Iraq have only come to fortify this conclusion of mine, though I have to add the U.N. as coequal culprits, the institutions liberals love and conservatives despise and I've come to lose nearly all respect for in my time in Baghdad.
If "rule of law" means anything, it's supposed to mean noninterference on the part of other, supposedly more political, branches of government in the affairs of the judiciary, and that, mostly I guess as a consequence, "law" should reign supreme over other interests and forces in the social order. That's as thin a definition as "rule of law" can come by. But recently, in Iraq, we know for a fact that an independent commission disqualified a number of candidates, including Sunni firebrand Saleh al Mutlaq, that the matter has gone to a court for determination, and that the US and UN are exerting pressure to have that decision reversed. Now it would take some form of idealism to imagine that the US and the UN were taking this position because they are just certain that the determination to exclude Mutlaq was just wrong as a legal matter. They are paying no attention to policy ramifications, they've just read the Accountability and Justice Law and they disagree with the conclusions made, really? Of course it's political. And yes the decision to exclude him was political, get the annoying Sunni removed, but the effort to reinstate him is also political, don't antagonize the Sunnis, neither one of these is "law" in the sense that "rule of law" is supposed to mean. These positions aren't dependent on statute or code or interpretations thereof, they are based on political preference.
Though at least with the Mutlaq episode, if one actually bothers to look at the law, plausible arguments can be drawn all around, because the law concerning who to exclude, and indeed the responsibility and authority of the Accountability Commission to do it, are matters of legal debate. Yet even when the arguments are more difficult to make, or better stated limitations of time and resources make the fashioning of good arguments impossible (precisely what happened in Bush v. Gore, the arguments of the Supreme Court were awful and as a result too overtly political, and time constraints made them bad--since then better positions have been developed), America hardly seems in the camp of the "rule of law" when it's political interests run contrary.
We know for a fact that America has quietly urged the Iraqis NOT to hold a referendum on the Status of Forces Agreement even though Iraqi law calls for it, because frankly America is afraid of losing the vote. Lawyers who knew something about Iraqi law we know for a fact, an absolute certainty, were told not to say anything, because anyone with an ounce of credibility would have pointed out the requirement for a referendum, and that's not what America wanted.
There are other examples involving the recent election crisis and how to count the time necessary to respond to presidential vetoes, but that's for another time and perhaps another forum. But it's very much about ignoring law and seeking to influence courts and institutions to ignore law, or to develop the flimsiest and most transparent of positions to circumvent law in a time crunch. Again, not necessary to develop in depth here.
The point is, in a fundamental manner, it's not about the Rule of Law, it never is, and it never was. The United States has a rule of law section in its Embassy, and I don't dount the sincerity of its personnel in their belief in this thing called a "rule of law" and in their sincere desire to spread the message of its importance to Iraq and elsewhere for the benefit of Iraqis. But those people aren't the ones who get to make the decisions when America's central political interests (consensual politics, lack of sectarian strife, and most of all, an on time election that permits and justifies a troop drawdown) are involved. When those core interests come into play, suddenly Iraqi law isn't so important, America's interests, or the UN's interests are more important. Heck you can even overhear the UN people at parties in the Green Zone say it, "nobody actually follows Iraqi law anyway" and "what are we supposed to do follow the law and watch the country go to pieces?" are two things I've overheard myself which I can relate without betraying confidences since they weren't told to me directly or indirectly, I overheard them. So there's the point then--law is secondary when other interests are involved.
In the old days, I suppose we could all just blame W. and say it has something to do with his disregard for law, but now the constitutional law professor is our President, and still, US interests are US interests. That's not to say they always control, because judges have interests in some level of autonomy, and Iraqi political actors have interests, and the UN has interests, and Iraq's neighbors have interests. Always is thus, and always shall be.
But what strikes me as silly is the naive belief that somehow, "rule of law", which given the thinnest definition above has to involve handing more power to the judiciary over decisionmaking in individual cases and in applications of statutes, can be "taught" to developing nations. The reality is that whoever the hell is doing the teaching has interests, and those interests are never going to be in perfect harmony with those being taught. And then they're not, the judiciary is going to find, understandably, some level of hypocrisy on the part of the teachers who are ignoring their own lessons when convenient.
So it seems to me the United States, and the United Nations, should probably stop spreading the message of "rule of law" like some fervent crew of maniacal evangelicals. At least in Iraq, both of them are looking increasingly ridiculous in the process.
HAH
If "rule of law" means anything, it's supposed to mean noninterference on the part of other, supposedly more political, branches of government in the affairs of the judiciary, and that, mostly I guess as a consequence, "law" should reign supreme over other interests and forces in the social order. That's as thin a definition as "rule of law" can come by. But recently, in Iraq, we know for a fact that an independent commission disqualified a number of candidates, including Sunni firebrand Saleh al Mutlaq, that the matter has gone to a court for determination, and that the US and UN are exerting pressure to have that decision reversed. Now it would take some form of idealism to imagine that the US and the UN were taking this position because they are just certain that the determination to exclude Mutlaq was just wrong as a legal matter. They are paying no attention to policy ramifications, they've just read the Accountability and Justice Law and they disagree with the conclusions made, really? Of course it's political. And yes the decision to exclude him was political, get the annoying Sunni removed, but the effort to reinstate him is also political, don't antagonize the Sunnis, neither one of these is "law" in the sense that "rule of law" is supposed to mean. These positions aren't dependent on statute or code or interpretations thereof, they are based on political preference.
Though at least with the Mutlaq episode, if one actually bothers to look at the law, plausible arguments can be drawn all around, because the law concerning who to exclude, and indeed the responsibility and authority of the Accountability Commission to do it, are matters of legal debate. Yet even when the arguments are more difficult to make, or better stated limitations of time and resources make the fashioning of good arguments impossible (precisely what happened in Bush v. Gore, the arguments of the Supreme Court were awful and as a result too overtly political, and time constraints made them bad--since then better positions have been developed), America hardly seems in the camp of the "rule of law" when it's political interests run contrary.
We know for a fact that America has quietly urged the Iraqis NOT to hold a referendum on the Status of Forces Agreement even though Iraqi law calls for it, because frankly America is afraid of losing the vote. Lawyers who knew something about Iraqi law we know for a fact, an absolute certainty, were told not to say anything, because anyone with an ounce of credibility would have pointed out the requirement for a referendum, and that's not what America wanted.
There are other examples involving the recent election crisis and how to count the time necessary to respond to presidential vetoes, but that's for another time and perhaps another forum. But it's very much about ignoring law and seeking to influence courts and institutions to ignore law, or to develop the flimsiest and most transparent of positions to circumvent law in a time crunch. Again, not necessary to develop in depth here.
The point is, in a fundamental manner, it's not about the Rule of Law, it never is, and it never was. The United States has a rule of law section in its Embassy, and I don't dount the sincerity of its personnel in their belief in this thing called a "rule of law" and in their sincere desire to spread the message of its importance to Iraq and elsewhere for the benefit of Iraqis. But those people aren't the ones who get to make the decisions when America's central political interests (consensual politics, lack of sectarian strife, and most of all, an on time election that permits and justifies a troop drawdown) are involved. When those core interests come into play, suddenly Iraqi law isn't so important, America's interests, or the UN's interests are more important. Heck you can even overhear the UN people at parties in the Green Zone say it, "nobody actually follows Iraqi law anyway" and "what are we supposed to do follow the law and watch the country go to pieces?" are two things I've overheard myself which I can relate without betraying confidences since they weren't told to me directly or indirectly, I overheard them. So there's the point then--law is secondary when other interests are involved.
In the old days, I suppose we could all just blame W. and say it has something to do with his disregard for law, but now the constitutional law professor is our President, and still, US interests are US interests. That's not to say they always control, because judges have interests in some level of autonomy, and Iraqi political actors have interests, and the UN has interests, and Iraq's neighbors have interests. Always is thus, and always shall be.
But what strikes me as silly is the naive belief that somehow, "rule of law", which given the thinnest definition above has to involve handing more power to the judiciary over decisionmaking in individual cases and in applications of statutes, can be "taught" to developing nations. The reality is that whoever the hell is doing the teaching has interests, and those interests are never going to be in perfect harmony with those being taught. And then they're not, the judiciary is going to find, understandably, some level of hypocrisy on the part of the teachers who are ignoring their own lessons when convenient.
So it seems to me the United States, and the United Nations, should probably stop spreading the message of "rule of law" like some fervent crew of maniacal evangelicals. At least in Iraq, both of them are looking increasingly ridiculous in the process.
HAH
Worship of the same God in the Muslim and Christian paradigms
There is an enduring question that seems to arise in any number of contexts respecting whether or not the Muslim "Allah" and the Christian "God" are one and the same that I think deserved more considered treatment than it has been receiving, because what the question is trying to address is I think somewhat different than what appears. I began thinking about this after the fascinating debates that have surrounded this issue in the United States and Malaysia. In the US, Muslims are desperate to get people to recognize they worship the same God as Christians, and Jews. Opposing this are some elements of the fanatic right who deny this and insist we worship "Allah" instead. In Malaysia, it's the Christians who just received hard fought court permission to use the word "Allah" to describe God, and it has sparked violence on the part of the Muslim religious fanatics there. Which is rather fascinating, Christians fighting to use a word for God that America's fanatics regard as satanic, and Muslims denying them the right to use it in a manner that confounds American Muslims, who would be delighted if everyone just started calling God "Allah".
The question is very, very much different than a question in almost any other context on whether or not X is the same as Y. "Am I reading the same book as my friend Fu'ad", or "are you the same Professor Hamoudi who taught my brother," are what we normally mean by "same" and are totally inapplicable in this context. In the cases of the book or me, you are looking for a total identity match, meaning it is precisely one and the same. yes in the case of the book you don't mean the physical paper, but what you mean is the same printed words, but in the case of me, you mean me, only me, not my brother or some guy that looks like me. I suppose you could get into some rather deep philosophical inquiries about how you know who I am, that I exist, that I existed then, what identity means and how it is determined, but I'm going to leave that one to the philosopher friends of the blog and pull out the lawyer's copout, to paraphrase Justice Stewart, I know me when I see me, and I know the same book when I see it, and so does everyone else.
Surely we don't mean this by the same God, because then clearly Muslims and Christians worship a different God in that the Muslim God doesn't have a son, and the Christian one does, the Muslim one sent an angel to speak to Muhammad and the Christian one didn't, and so forth. But then again, by that same standard, Chrisitans and Jews don't worship the same God either. Nor do those in the American north who despised slavery and thought Jesus did too worship the same God as those in the American South who felt that God endorsed slavery. Nor do the Copts who believe that the Father and the Son are of the same substance worship the same God as Orthodox Christians who are heterophysites. Or for that matter the Muslim who doesn't get up at dawn to pray and figures if God is All Forgiving, surely he'll forgive that as compared to the real horrors that occur in this world worships a different God than the guy who says breaching the rules is a terrible offence to God.
I could go on, the point is, one isn't really asking in using the adjective "same" a complete identity match, but a substantial enough one. Are there enough characteristics that are similar that they are basically the same? At one level, the question is silly. Who cares? It's sort of like asking (now I'm paraphrasing Richard Dawkins, Allah please forgive me for this horrible sin. . . . ) whether or not Newton or Einstein or Darwin was the greatest scientist of all time. It's not a football game, Newton developed the physical laws that govern our world as we can see it with the eye, Einstein refined it for very high velocities and broad spaces, Darwin defined how life has blossomed into admirable diversity, they all made breathtaking contributions to humanity's understanding of itself,and should be celebrated on their own terms, "greatest" doesn't mean anything.
Similarly, Muslims and Christians and Jews believe that there is one True Eternal God, that He loved humanity so deeply that he sent to it a series of messengers and prophets and that he will judge them at the end of time for all they do. They disagree on who the Messiah is, and whether or not he is Divine, and the mission of Muhammad. You want to call that the "same" or "basically the same", fine. You want to call it different, okay. You want to call it fettucine alfredo that's fine too. It's just a label the similarities and differences are what they are.
But at another level, there is a world of importance to this rather subjective determination of what is and is not substantial enough to be the "same". What one is trying to do when they say you are worshipping the same God is setting forth a position of deeper social, and at times political, legitimacy. When a Malaysian Christian wants to use the term "Allah" in his prayers, and points to the Koran itself which indicates to the People of the Book "your deity and ours are One" as proof that he should be able to, he is seeking some level of recognized legitimacy to his faith, and the Muslim who opposes him is doing the opposite, he is seeking to exclude him from some aspects of the social order on the grounds that his God is somehow different. Similarly American Muslims are seeking some sort of legitimacy from and inclusion in a broader national religious fabric commonly described as "Judeo-Christian". As to why Iraq and even Egypt with its current religious tensions managed to avoid this problem of distinguishing God by name, I think the reason is just the realities of the Arabic language. Ignoramuses in the US and Malaysia aside, the word "Allah" means "God" in Arabic, and Christians and Jews have used it from the Prophet's time. To devise another name would be to break with centuries of tradition. You'd have to make up a new word for God, which would never be done lightly. That's not to say the religious tensions are less as a result necessarily, though it has to help when the deity has the same name, but that they aren't manifested in this linguistic acrobatics.
The same would apply intrafaith I might argue. I think you'd be hard pressed to find a serious person today who would say that the Monophysite Copts worship a different God than the Heterophysite Orthodox, same substance, different substance, I think people don't put that into the category of social exclusion anymore. But I think I could find quite a few people on the left who might say if you think God hates gays, then you believe in a different God. It's not really a question of theological compatibility, but rather of whether the other believer is close enough that you consider him in some way part of a broader religious ethic in a particular social order, within the larger tent, that is.
Of course, for those of us deeply, deeply respectful of (and believers in) faith and the role it can play in the life of a person, and indeed in the story of humanity, yet who simultaneously are ardently secular in our insistence that none of this can relate to political systems such as the modern nation state, it is distressing that all of this should matter as much as it does for the political purposes to which it is often put. Whatever the value of deciding that a follower of another faith does or does not worship the same God, and it may be substantial, surely it must have nothing to do with that person's equal political citizenship in the nation state.
HAH
The question is very, very much different than a question in almost any other context on whether or not X is the same as Y. "Am I reading the same book as my friend Fu'ad", or "are you the same Professor Hamoudi who taught my brother," are what we normally mean by "same" and are totally inapplicable in this context. In the cases of the book or me, you are looking for a total identity match, meaning it is precisely one and the same. yes in the case of the book you don't mean the physical paper, but what you mean is the same printed words, but in the case of me, you mean me, only me, not my brother or some guy that looks like me. I suppose you could get into some rather deep philosophical inquiries about how you know who I am, that I exist, that I existed then, what identity means and how it is determined, but I'm going to leave that one to the philosopher friends of the blog and pull out the lawyer's copout, to paraphrase Justice Stewart, I know me when I see me, and I know the same book when I see it, and so does everyone else.
Surely we don't mean this by the same God, because then clearly Muslims and Christians worship a different God in that the Muslim God doesn't have a son, and the Christian one does, the Muslim one sent an angel to speak to Muhammad and the Christian one didn't, and so forth. But then again, by that same standard, Chrisitans and Jews don't worship the same God either. Nor do those in the American north who despised slavery and thought Jesus did too worship the same God as those in the American South who felt that God endorsed slavery. Nor do the Copts who believe that the Father and the Son are of the same substance worship the same God as Orthodox Christians who are heterophysites. Or for that matter the Muslim who doesn't get up at dawn to pray and figures if God is All Forgiving, surely he'll forgive that as compared to the real horrors that occur in this world worships a different God than the guy who says breaching the rules is a terrible offence to God.
I could go on, the point is, one isn't really asking in using the adjective "same" a complete identity match, but a substantial enough one. Are there enough characteristics that are similar that they are basically the same? At one level, the question is silly. Who cares? It's sort of like asking (now I'm paraphrasing Richard Dawkins, Allah please forgive me for this horrible sin. . . . ) whether or not Newton or Einstein or Darwin was the greatest scientist of all time. It's not a football game, Newton developed the physical laws that govern our world as we can see it with the eye, Einstein refined it for very high velocities and broad spaces, Darwin defined how life has blossomed into admirable diversity, they all made breathtaking contributions to humanity's understanding of itself,and should be celebrated on their own terms, "greatest" doesn't mean anything.
Similarly, Muslims and Christians and Jews believe that there is one True Eternal God, that He loved humanity so deeply that he sent to it a series of messengers and prophets and that he will judge them at the end of time for all they do. They disagree on who the Messiah is, and whether or not he is Divine, and the mission of Muhammad. You want to call that the "same" or "basically the same", fine. You want to call it different, okay. You want to call it fettucine alfredo that's fine too. It's just a label the similarities and differences are what they are.
But at another level, there is a world of importance to this rather subjective determination of what is and is not substantial enough to be the "same". What one is trying to do when they say you are worshipping the same God is setting forth a position of deeper social, and at times political, legitimacy. When a Malaysian Christian wants to use the term "Allah" in his prayers, and points to the Koran itself which indicates to the People of the Book "your deity and ours are One" as proof that he should be able to, he is seeking some level of recognized legitimacy to his faith, and the Muslim who opposes him is doing the opposite, he is seeking to exclude him from some aspects of the social order on the grounds that his God is somehow different. Similarly American Muslims are seeking some sort of legitimacy from and inclusion in a broader national religious fabric commonly described as "Judeo-Christian". As to why Iraq and even Egypt with its current religious tensions managed to avoid this problem of distinguishing God by name, I think the reason is just the realities of the Arabic language. Ignoramuses in the US and Malaysia aside, the word "Allah" means "God" in Arabic, and Christians and Jews have used it from the Prophet's time. To devise another name would be to break with centuries of tradition. You'd have to make up a new word for God, which would never be done lightly. That's not to say the religious tensions are less as a result necessarily, though it has to help when the deity has the same name, but that they aren't manifested in this linguistic acrobatics.
The same would apply intrafaith I might argue. I think you'd be hard pressed to find a serious person today who would say that the Monophysite Copts worship a different God than the Heterophysite Orthodox, same substance, different substance, I think people don't put that into the category of social exclusion anymore. But I think I could find quite a few people on the left who might say if you think God hates gays, then you believe in a different God. It's not really a question of theological compatibility, but rather of whether the other believer is close enough that you consider him in some way part of a broader religious ethic in a particular social order, within the larger tent, that is.
Of course, for those of us deeply, deeply respectful of (and believers in) faith and the role it can play in the life of a person, and indeed in the story of humanity, yet who simultaneously are ardently secular in our insistence that none of this can relate to political systems such as the modern nation state, it is distressing that all of this should matter as much as it does for the political purposes to which it is often put. Whatever the value of deciding that a follower of another faith does or does not worship the same God, and it may be substantial, surely it must have nothing to do with that person's equal political citizenship in the nation state.
HAH
Free and Hurr: On the redefiniton of Islamic terminology
One of the most moving stories told during the Ashura processions, commemorating the death of the Prophet's grandson, the Imam Hussein, killed by the sixth caliph for refusing to swear loyalty to him and generally dated as the origin of the Shi'a Sunni split, is that of Hurr. Hearing Imam Hussein speak just before the onset of the battle, with only a few dozen fighters by his side while the caliph commanded an army of tens of thousands, Hurr began to tremble in terror. His compatriots asked what was wrong, he was the great Hurr, commander of men, how could a single men with a few dozen people scare him? And the answer returned was that he, Hurr, was afraid of no swords but when the son of the Apostle of God spoke, he saw his soul fluttering between Paradise and Hell. He switches sides, obviously ends up getting killed, but as he is taking his last breath, Imam Hussein says to him:
You are Hurr, and so you shall be. Hurr in this life and Hurr in the next.
Hurr would generally be translated by any modern linguist as "free" and indeed that's how I have always thought of it as a modern Arabic speaker, familiar with modern Arabic in its modern forms particularly as concerns the law. Hurriya is freedom, political freedom, memorialized in constitutions throughout the Arab world as such. It's a transplanted idea, but one that has taken root. If you adopt it in the Hurr context, the idea would be that Hurr acted freely, he chose to distance himself from the constraints of command and post, and follow his conscience. It was in that sense an ultimate act of freedom, of breaking the bonds that tie one in this life, and earn them freedom in the next.
But I've been thinking about this rather modern understanding recently and realize of course I'm imposing modern meanings on older words. There is another moment recounted in the battle of Kerbala, where Imam Hussein tells to the gathering barbarian hordes who have come to kill him
آل أبى سفيان.ان فان لم يكن لكم دين وكنتم لا تخافون الميعاد فكونو احرار في دنياكم
or roughly translated, "Family of Abu Sufyan: if you have no religion, and you have no fear of the appointment, then be free in this life of yours"
Now given that these are Shi'i accounts, Imam Hussein can't be understood to be asking the family of Abu Sufyan to be free to follow their conscience. They have none, that's the point of the whole story of Ashura, they are unconstrained in their willingness to soil the religion by murdering the Prophet's grandson and desecrating his corpse, none of it works as a defining legend of a faith if the bad guys are acting not according to their own evil intentions, but because they are constrained by other forces they are too cowardly to contest. There is someone in the tale who occupies that role, the Judas of Kerbala, Omar ibn Saad, but those who Imam Hussein addresses in this account aren't going to be swayed by conscience.
Things became much clearer once one starts to think about the matter of the word "Hurr" more carefully. Generally the term is used, even in the Qur'an, as a contrast to "slave". So the verse on retaliation for murder (life for life unless blood money paid instead) says the free for the free, the slave for the slave, so you don't take the live of the free person for killing a slave. That much everyone knows and yet that still works for the modern mind, other than that slavery could be tolerated, but that's another matter Muslims have largely dispensed of. The point for the meaning of the word Hurr is that clearly a slave isn't free, and so Hurr still means free as in politically free.
Yet thinking in terms of class distinctions, and classical Islamic law is rife with them particularly in marriage (another fact that seems to escape the notice of many modern Muslims, who seem to think Islam never believed in social class), the opposite of a slave is not just a "free" person, but also a "noble" one. A man with property, with means, a man of substance and depth. And in early Islamic sources, it's pretty clear "noble" works better than "free" in most instances when the term is used without reference to slave.
And so Hurr, your name is Hurr, and so you shall be. Noble in this life, and noble in the next. And so Family of Abu Sufyan, if you have no religion, and you don't fear the appointment, then at least be noble in this life of yours.
It works quite well, there are many other examples. What is the point of all of this? Mainly that "freedom" meaning political freedom as understood by a liberal, isn't a term that has any meaning in early or classical Islam. The word doesn't mean what we take it to mean, it means something else in the sources of law. That isn't to say that liberal freedoms are incompatible necessarily with classical Islamic law. To take an easy example, I think you could talk about the "right" to an education, or the "freedom" to learn, and make a pretty good case that the sources presuppose that. Still, they don't say it, in fact it's more an individual duty than a public freedom, it takes some transformation to make the one into the other. The notion that learning has to do with "freedom" would be baffling to anyone from earlier eras, they might well retort "but the duty to learn is incumbent on everyone, slave and free, it has nothing to do wth that status."
So in sum, we invent new concepts, like freedom. We go back to classical sources to justify them. We use words for them that would have meant completely different things to different generations of people. And yet the notion that we reinvent the religion to suit the times is met with stiff resistance. Why that is, I will never know.
HAH
You are Hurr, and so you shall be. Hurr in this life and Hurr in the next.
Hurr would generally be translated by any modern linguist as "free" and indeed that's how I have always thought of it as a modern Arabic speaker, familiar with modern Arabic in its modern forms particularly as concerns the law. Hurriya is freedom, political freedom, memorialized in constitutions throughout the Arab world as such. It's a transplanted idea, but one that has taken root. If you adopt it in the Hurr context, the idea would be that Hurr acted freely, he chose to distance himself from the constraints of command and post, and follow his conscience. It was in that sense an ultimate act of freedom, of breaking the bonds that tie one in this life, and earn them freedom in the next.
But I've been thinking about this rather modern understanding recently and realize of course I'm imposing modern meanings on older words. There is another moment recounted in the battle of Kerbala, where Imam Hussein tells to the gathering barbarian hordes who have come to kill him
آل أبى سفيان.ان فان لم يكن لكم دين وكنتم لا تخافون الميعاد فكونو احرار في دنياكم
or roughly translated, "Family of Abu Sufyan: if you have no religion, and you have no fear of the appointment, then be free in this life of yours"
Now given that these are Shi'i accounts, Imam Hussein can't be understood to be asking the family of Abu Sufyan to be free to follow their conscience. They have none, that's the point of the whole story of Ashura, they are unconstrained in their willingness to soil the religion by murdering the Prophet's grandson and desecrating his corpse, none of it works as a defining legend of a faith if the bad guys are acting not according to their own evil intentions, but because they are constrained by other forces they are too cowardly to contest. There is someone in the tale who occupies that role, the Judas of Kerbala, Omar ibn Saad, but those who Imam Hussein addresses in this account aren't going to be swayed by conscience.
Things became much clearer once one starts to think about the matter of the word "Hurr" more carefully. Generally the term is used, even in the Qur'an, as a contrast to "slave". So the verse on retaliation for murder (life for life unless blood money paid instead) says the free for the free, the slave for the slave, so you don't take the live of the free person for killing a slave. That much everyone knows and yet that still works for the modern mind, other than that slavery could be tolerated, but that's another matter Muslims have largely dispensed of. The point for the meaning of the word Hurr is that clearly a slave isn't free, and so Hurr still means free as in politically free.
Yet thinking in terms of class distinctions, and classical Islamic law is rife with them particularly in marriage (another fact that seems to escape the notice of many modern Muslims, who seem to think Islam never believed in social class), the opposite of a slave is not just a "free" person, but also a "noble" one. A man with property, with means, a man of substance and depth. And in early Islamic sources, it's pretty clear "noble" works better than "free" in most instances when the term is used without reference to slave.
And so Hurr, your name is Hurr, and so you shall be. Noble in this life, and noble in the next. And so Family of Abu Sufyan, if you have no religion, and you don't fear the appointment, then at least be noble in this life of yours.
It works quite well, there are many other examples. What is the point of all of this? Mainly that "freedom" meaning political freedom as understood by a liberal, isn't a term that has any meaning in early or classical Islam. The word doesn't mean what we take it to mean, it means something else in the sources of law. That isn't to say that liberal freedoms are incompatible necessarily with classical Islamic law. To take an easy example, I think you could talk about the "right" to an education, or the "freedom" to learn, and make a pretty good case that the sources presuppose that. Still, they don't say it, in fact it's more an individual duty than a public freedom, it takes some transformation to make the one into the other. The notion that learning has to do with "freedom" would be baffling to anyone from earlier eras, they might well retort "but the duty to learn is incumbent on everyone, slave and free, it has nothing to do wth that status."
So in sum, we invent new concepts, like freedom. We go back to classical sources to justify them. We use words for them that would have meant completely different things to different generations of people. And yet the notion that we reinvent the religion to suit the times is met with stiff resistance. Why that is, I will never know.
HAH
Realism and the Right to an Attorney: Lessons from Iraq
I realize that I have not written in some time, perhaps my longest respite from the blog since it began. But Thanksgiving came and went, and then we were thrown into an election law crisis and my is there much to discuss there, but virtually none of it can I talk about right now (it's coming, it's coming) and beyond that I had almost no time to think about anything, hence the delay. Starting in the New Year, I will be returning to the US after my many months in Baghdad, and will of course be much more assiduous about keeping current the blog.
For today's post, I did want to raise an issue I have been thinking about for some time now, which is Realism and the right to an attorney, spurred by a conference I attended some time ago here in Iraq, where as I've noted Realism has no purchase in the slightest and the strictest forms of formalism reigns, where basically legal interpretation is akin to a mathematical formula that leads one clearly to a right answer, or a wrong one.
At this conference, held some time ago, and I don't want to go into more detail about it at this point, but let's say it was some pretty significant personalities in the world of Iraqi law, and it became clear to me that these fellows had a pretty hard time in justifying the point of an attorney in a criminal trial, and their strict formalism had something of a role.
In the United States, the right to an attorney in criminal cases was established as Realism began to creep into the legal academy, and the processes I submit were related. When one believes, as I do, and as we in the US came to believe, that under just about any given set of facts, there are several equally plausible doctrinal arguments (and we don't have to go to the reverse extreme of Iraq's formalism and say under ANY set of facts, ANY argument can be made to make the point here, the softer one, which I think the huge majority of lawyers in the US would accept as true, will do), then it is rather important to have a lawyer. He is going to know where the strengths of the case are, where its weaknesses are, what arguments can be presented, what cannot, and without this, the defendant is at a tremendous disadvantage.
But if you posit two things--first, a nonadversarial system where the determination of the facts is not done by the attorneys (prosecution or defense) in the first instance, but by an investigative judge (because plainly factfinding is the most important function of any attorney at an adversarial trial), and second, you presume that law is a mathematical formula, the purpose of a lawyer is I will certainly not say nonexistent (that would be plainly untrue) but a little less obvious. That is, if it's a formula, why can't the judge just apply the formula and get to a right answer? Why in the world would you need a lawyer? Or that might be a first instinct at least.
And indeed, you had some pretty senior Iraqi legal personalities saying some rather horrifying things, stuff you'd expect maybe at these tea party rallies or whatever they seem to be having in the US or did at some point anyway (I'm out of the loop, I didn't even realize Tiger Woods was a "moral authority" before this stuff. I thought he was a golfer), but not by important figures. The role of the lawyer is not to defend criminals, but to defend the nation, one guy said. (So my lawyer should take the other side if he thinks it's in the national interest? Seriously?) Or quite commonly it was said that lawyers often don't follow the law, they just say something that helps their clients, they're more interested in getting money from their clients and serving their interests than in serving the law. Of course where we come from if a lawyer isn't zealously advocating for his client by making the best arguments available he's engaging in malpractice. Yet if legal interpretation is a mathematical formula, making good arguments that are "wrong" is clouding analysis, not supporting a fundamental right. This I heard often enough to be rather depressed by it.
To be absolutely clear, the Iraqi constitution does contain an absolute right to an attorney in criminal matters. And the argument for it can be made, and indeed was made quite eloquently by the head of the Iraqi Bar Association at the conference, even in the ultra formalist mindset. Simply, the judge can err in his mathematical derivation. We know, the IBA head said, that this happens, we've seen reversals at cassation of convictions made at trial and sustained on the first appeal. So the lawyer is a defender then not of the nation, but, in his words, of truth, of making sure the derivation is right and if not right to the derogation of the client, to fix it. That certainly does restrict the lawyer's role in a manner that would pretty clearly be unethical in the US context (I can make it an argument, I think it will work, it is nonfrivlous and legitimate, it's entirely unethical in our context not to present it because the lawyer happens not to like it or find it "true" whatever that means in legal argumentation) but it certainly points to why a lawyer might be necessary. And certainly the man has a point. If it is a mathematical formula, clearly it's not an easy one if there are reversals at cassation.
Still, given this cultural difference alone, it shouldn't be hard to imagine the daunting task any group of American lawyers would have advising Iraqis on much of anything in a manner that is likely to succeed. And I haven't even touched forensics, or the role of confessions, or much of anything else.
HAH
For today's post, I did want to raise an issue I have been thinking about for some time now, which is Realism and the right to an attorney, spurred by a conference I attended some time ago here in Iraq, where as I've noted Realism has no purchase in the slightest and the strictest forms of formalism reigns, where basically legal interpretation is akin to a mathematical formula that leads one clearly to a right answer, or a wrong one.
At this conference, held some time ago, and I don't want to go into more detail about it at this point, but let's say it was some pretty significant personalities in the world of Iraqi law, and it became clear to me that these fellows had a pretty hard time in justifying the point of an attorney in a criminal trial, and their strict formalism had something of a role.
In the United States, the right to an attorney in criminal cases was established as Realism began to creep into the legal academy, and the processes I submit were related. When one believes, as I do, and as we in the US came to believe, that under just about any given set of facts, there are several equally plausible doctrinal arguments (and we don't have to go to the reverse extreme of Iraq's formalism and say under ANY set of facts, ANY argument can be made to make the point here, the softer one, which I think the huge majority of lawyers in the US would accept as true, will do), then it is rather important to have a lawyer. He is going to know where the strengths of the case are, where its weaknesses are, what arguments can be presented, what cannot, and without this, the defendant is at a tremendous disadvantage.
But if you posit two things--first, a nonadversarial system where the determination of the facts is not done by the attorneys (prosecution or defense) in the first instance, but by an investigative judge (because plainly factfinding is the most important function of any attorney at an adversarial trial), and second, you presume that law is a mathematical formula, the purpose of a lawyer is I will certainly not say nonexistent (that would be plainly untrue) but a little less obvious. That is, if it's a formula, why can't the judge just apply the formula and get to a right answer? Why in the world would you need a lawyer? Or that might be a first instinct at least.
And indeed, you had some pretty senior Iraqi legal personalities saying some rather horrifying things, stuff you'd expect maybe at these tea party rallies or whatever they seem to be having in the US or did at some point anyway (I'm out of the loop, I didn't even realize Tiger Woods was a "moral authority" before this stuff. I thought he was a golfer), but not by important figures. The role of the lawyer is not to defend criminals, but to defend the nation, one guy said. (So my lawyer should take the other side if he thinks it's in the national interest? Seriously?) Or quite commonly it was said that lawyers often don't follow the law, they just say something that helps their clients, they're more interested in getting money from their clients and serving their interests than in serving the law. Of course where we come from if a lawyer isn't zealously advocating for his client by making the best arguments available he's engaging in malpractice. Yet if legal interpretation is a mathematical formula, making good arguments that are "wrong" is clouding analysis, not supporting a fundamental right. This I heard often enough to be rather depressed by it.
To be absolutely clear, the Iraqi constitution does contain an absolute right to an attorney in criminal matters. And the argument for it can be made, and indeed was made quite eloquently by the head of the Iraqi Bar Association at the conference, even in the ultra formalist mindset. Simply, the judge can err in his mathematical derivation. We know, the IBA head said, that this happens, we've seen reversals at cassation of convictions made at trial and sustained on the first appeal. So the lawyer is a defender then not of the nation, but, in his words, of truth, of making sure the derivation is right and if not right to the derogation of the client, to fix it. That certainly does restrict the lawyer's role in a manner that would pretty clearly be unethical in the US context (I can make it an argument, I think it will work, it is nonfrivlous and legitimate, it's entirely unethical in our context not to present it because the lawyer happens not to like it or find it "true" whatever that means in legal argumentation) but it certainly points to why a lawyer might be necessary. And certainly the man has a point. If it is a mathematical formula, clearly it's not an easy one if there are reversals at cassation.
Still, given this cultural difference alone, it shouldn't be hard to imagine the daunting task any group of American lawyers would have advising Iraqis on much of anything in a manner that is likely to succeed. And I haven't even touched forensics, or the role of confessions, or much of anything else.
HAH
Aspirational Constitutionalism in the New Iraq
I had the distinct pleasure of reading some of the latest work of my colleague and mentor Michael C. Dorf of
Professor Dorf’s work, Aspirational Constitutionalism, is primarily an attempt to answer from a different perspective a question that seems rather prominent among constitutionalists—that of the philosophical justification for the “dead hand”. Why, in other words, should a bunch of dead, white, Protestant, slaveowning (in many cases, anyway) men have any right to rule from beyond their graves by virtue of a document that is almost impossible to amend, someone like me, who is neither dead, nor white, nor Protestant, nor slaveowning (though I am a man, I’ll cop to that one)?
Some rules, such as structural rules, Professor Dorf indicates, might well be justified because by setting forth ground rules, they help focus later generations on substantive policy questions rather than reinvent the wheel every single time. This is the first of many parts that is relevant to
But this notion of ground rules is harder to explain when it comes to rights. The general explanation to justify the dead hand, Professor Dorf indicates, has something to do with “anti-backsliding”, meaning the establishing generation knows pretty well what rights are important to be respected, and they know that at times of crisis, there is “backsliding”, and if we start to ignore these rights during these periods, we will come to regret it. The Founding Fathers, much like Ulysses with the Sirens (Dorf’s analogy, I can’t take credit for it), bind us so we don’t do something we ourselves know we will regret. Much analysis follows concerning backsliding, its justifications, and whether or not it is largely accurate, but I will omit here in this cursory reflection. I highly recommend the very readable article, however (77 GW Law Review 1631) to get a fuller flavor.
Dorf indicates, however, that very often the drafters of an amendment aren’t trying to prevent a status quo from backsliding, they are trying to create a change, and entrench it. So backsliding isn’t what it’s about. The 19th Amendment is about giving women the franchise when they didn’t have it in a great number of states, the 13th Amendment is about freeing the slaves. It’s not like the
My thoughts on this are two as they relate to
For Americans, I suppose it’s natural given the structure of our constitution to imagine drafters thinking one way about structural rules (change the past) and another way about rights (prevent their regression) because our rights are largely amendments, our structure largely articles. It breaks down prettily that way. Few other constitutions do. The argument that rights are about preventing backsliding seems to suggest constitution drafters in other countries think one way about Chapter One, and then another about Chapter Two and yet another about Chapter Three. Like I said, odd and unnatural.
Even more obviously is the fact that most emerging democratic countries did NOT enjoy the rights they are granting and in fact struggle mightily to determine what rights, particularly of the social and economic type, should be ruled by the dead hand, and what should be left for future policy. I’ve been reviewing closely the constitutional provisions of the
Moreover, there is no doubt that many of these articles have aspirational elements, again particularly as concerns social and economic rights. In Iraq, they are so broad, so extensive, so generous, that they are hard for the state to realize, and the fact that much of the direct language (guarantees of “appropriate income” to the unemployed) were replaced with more general phrasings that appear now suggest a strong measure of (unstated) hope of progressive realization in the future.
So I suppose my own limited comparative view causes me to endorse rather enthusiastically the notion of the reality of aspirational constitutionalism, though the same experience causes me to wonder whether there might be harm of a different variety associated with it that Professor Dorf does not anticipate or at least does not mention. I wonder whether aspirationalism might be a feel good method for current decisionmakers and elites to avoid what they recognize to be a moral responsibility to the disadvantaged through effectively inviting some later generation to worry about the problem rather than addressing it themselves, however imperfectly.
In
And I wonder whether or not I might make a similar (if not existential) argument in the
But like I said, all of this is but momentary reflections from a different perspective on a much more deeply considered piece.
HAH
Islam and State According to the Grand Ayatollahs of Najaf.
At the below link is my latest and perhaps last contribution for now on insights from my latest trip to Najaf. I saved the best for last, this is the role of religion in the state in the view of the Grand Ayatollahs, definitely the most interesting aspect of the trip for a legal scholar like me. enjoy.
http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=30&article_id=108305
http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=30&article_id=108305
