Two thoughts, not necessarily connected, respecting the recently vetoed Arizona religious freedom bill, Muslims and Islamic law.
First thought. The dominant fear of Muslims can be rather funny at times.
Of all the rather amusing things I found throughout the discussions of the now vetoed Arizona bill that would have permitted individuals to refuse service to someone if providing such service violated their religious obligations, the most was the rather broad discussions respecting the law being "too broad", so broad, in fact that it might permit Muslims to refuse to serve Christians on the grounds that they are infidels (the CNN version) or it might permit a Muslim cab driver to refuse to pick up a woman without a male guardian on the grounds that they aren't supposed to be out alone (the NY Times version). Notice I left aside the Fox News versions, too obvious to merit comment in their case.
Personally I'm rather amused by these examples, as I wonder why it is that the assumption appears to be that (i) there are significant numbers of Muslims who adopt more extreme interpretations of Islam than are common in much of the Islamic world, and (ii) that such individuals have a viable business plan in Arizona by putting these ideas into action. As to (i), it is common in much of the Arab world in particular (Iraq, Egypt, Jordan) and even in Iran for a woman to take a cab alone. In fact, it is often preferred to taking a cab with a male colleague. If I'm teaching a class in Beirut, Basra, or Qatar, as I have done and continue to do from time to time, and I offer a woman a ride home, the reaction is almost as if I had offered to kiss her on the lips. Because the scandal! Obviously if I'm giving her a ride home then halfway there our libidos will get the better of us and we'll be ripping off each other's clothes and having wild sex, which surely happens whenever a professor and a student ride home together as is well known. Anyway, sarcasm aside, it's scandalous. By contrast, a woman riding a cab home alone is not. Nobody thinks a random female student is engaged in a relationship with a guy who she doesn't know and whose cab she hailed to go home. Libidos not presumed to run quite that high.
So this Muslim who doesn't pick up this unaccompanied female is more conservative than cab drivers in Iraq, Iran, Jordan, Syria, etc. But such people do exist, and countries do exist where a woman cannot ride a cab unaccompanied with grounds being given related to Islam, so he exists, and let us presume that somehow for some reason he got it in his head with these ideas that he'd move to Arizona and become a cab driver. The brother is ill advised, I guess. His plan now is not to pick up women, because it's sinful. And I'll assume he's no more or less racist than your average NYC cabdriver, by which I mean he won't pick up black men either, because he assumes they'll rob or shoot him. So his plan is just to cruise the streets waiting for white guys to pick up? Will he not pick them up if they're going to a bar? Or from one? Surely that's worse than women alone. How is this going to work?
Muslims not serving Christian infidels is even dumber, as I cannot conceive of a version of shari'a that permits residence in the non Muslim land and prohibits commercial engagement with non Muslims. Some classical authorities have argued the reverse (trade with anyone, live in the Abode of Islam) but this version is odd, I dare say completely unprecedented. And, of course, it's entirely self defeating. Arizona Christians are honestly worried that the 1% Muslim population of Arizona is going to somehow cut off their business? Can I say as a Muslim I'd be more worried about the 99% doing business with me than the reverse?
Why didn't the New York Times or CNN give that as the example ("for example, Wolf, Christians might end up refusing to serve Muslims on the grounds that they are all violent terrorists, and it is a sin to serve them, and as a result the entire Muslim population would be relegated to a ghetto.") Unlikely you say? Sure. But a Muslim dude opening a pizza place and then denying service to 99% of his customer base (or lets say 99.5% since he won't serve unaccompanied Muslim women either), adopting a thoroughly unorthodox and unheard of interpretation of shari'a to do it--this is likely?
Second thought. The bill isn't too "broad" as drafted because it lets Muslims discriminate against random single women or random Christians. It's just precisely the same discrimination as proposed in the bill itself, the only real distinction being that it is discrimination directed against the drafters.
When one describes a piece of legislation as "too broad", what they mean is that it covers circumstances that are really beyond the scope of what is intended to be regulated. Hence, for example, a ban on vehicles on a gravel path that runs from Pittsburgh to DC is too broad, as the whole point of it is to create a bike path, and a bicycle is a vehicle. (This is a real example, somewhere on that road I always pass a sign on my bike that says "No vehicles." My letters indicating the sign should read "No MOTORIZED vehicles" have gone unanswered. As nobody enforces that sign as against bicycles I have chosen not to pursue the matter further.)
In any event, I presume the point is clear. There are reasons that one would ban cars and motorcycles from a paved surface on which bicycles and pedestrians are welcome. To ban the bicycle through a ban on vehicles is "too broad", a mistake in fact.
To describe the law as "too broad" because it permits Muslims to discriminate against Christian infidels or unaccompanied women is a misnomer, as the same wrong would be committed, just by different people. In fact, to describe it as not narrow enough is either anti Muslim or anti gay. Anti Muslim in the sense that discrimination is not acceptable only when practiced by them, anti gay in the sense that discrimination is acceptable only when practiced against them.
It's actually probably both. As in:
1. Christians refusing service to gay people because it violates their religious freedom to do that. (Religious freedom) 2. Muslims refusing service to gay people because it violates their religious freedom to do that.. (on the borderline) 3. Muslims refusing service to Christians because it violates their religious freedom to do that. (too broad).
Of course that's the conservative version, the one advanced by the supporters of the Arizona bill. The liberal version is not necessarily different, however, at least when advanced by those who find the law bad, but also "too broad." It would go like this:
1. Christians refusing service to gay people because it violates their religious freedom to do that. (Bad) 2. Muslims refusing service to gay people because it violates their religious freedom to do that. (Worse) 3. Muslims refusing service to Christians because it violates their religious freedom to do that. (Now do you see the horrible thing you idiots have done?????).
Or we could just say that any attempt by any of these people to discriminate against any of these people in providing services that are not in their core religious in nature (nobody is forcing priests, rabbis or imams to do anything) will not be tolerated because they are all, you know, different examples of the same damn thing.
As anyone who has even casually picked up my book would surely know, footnote 20 on pages 251-52 refers to a decision made by the Iraqi Federal Supreme Court, Decision 43 of 2010, which denies to the Iraqi legislature the power to create and enact its own law. Anyway, you know it, for who among you has not read footnote 20 on page 251? So in Iraq, the law must be presented by the government, and then enacted by the legislature if it so desires. I've written about this elsewhere on Jurist as well. I've described it as the worst decision of the court in its decade long tenure, and I stand by that.
To be clear, Iraq is a parliamentary system, and so it is not at all unusual in parliamentary systems for just about every law to originate from the executive in practice. The executive is, in a parliamentary system, merely a creature of the legislature, and can be recalled by the parliament upon a simple vote of no confidence. So long as the executive enjoys the legislature's confidence, the theory runs, it should be able to formulate its own legislative program. Government bills can be rejected at times by the parliament certainly, but a bill enacted that the government opposes is comparatively rarer. This, importantly, distinguishes it from a presidential system, such as the United States, with its strong separation between executive and legislature, and where the idea that the Congress would not write its own law would be on balance insane.
Still, it is a legislature and you would think it would have the power of the rest of the legislatures in the world, which includes the power to enact law without needing it provided by another branch first. I have had debates over whether it matters that this theoretical power is taken away, and to me it does have important symbolic effect that does change how the legislature sees itself, though I do find myself on the opposite side of many Realists on the question with whom I normally agree, given the realist focus on result and their awareness that legislatures in parliamentary systems rarely write their own bills.
An interesting question, but a somewhat dated one by this point. I raise it now because many Arab jurists have defended Decision 43/2010 (unlike some realists, who don't so much defend it as see it as inconsequential) on the grounds that the Iraqi legislature just does not have the capacity to draft a good law. Leave them to it, and heaven knows what will emerge. They're all demagogues and grandstanders, the theory runs, they lack the skills necessary. I'll leave without comment the dubious position that somehow it is Iraq's legislature alone that is overpopulated by demagogues and grandstanders. But more broadly if this is true, then one would expect quality laws emerging from Iraq at this point to the extent they do emerge. Not necessarily ones that address all of Iraq's problems, the law still has to pass the legislature after all, but at least technically well drafted and well considered ones. Right? because the pros in the government are doing it, and running it through the Shura Council (those familiar with the French system, substitute the Conseil d'Etat and it works well enough) and hence we should be sure that the laws are much better now that we've removed the technical aspects of lawmaking from the hands of the demagogues.
And so now do we turn to Law No. 2 of 2013, enacted not so long ago really, and I provide it in its entirety:
The Law Prohibiting Toys/Games (العاب--which I will translate as "games") That Incite Violence
Article 1 - Prohibited are the importation, manufacture, trade or sale of games in all their forms that incite violence.
Article 2 - (a) Each person who imports or manufactures games in all their forms that incite violence shall be punished by prison of no less than three years or a fine of no less than 20 million dinars (roughly $18,000). (b)Each person who sells or trades in games in all their forms that incite violence shall be punished by prison or a fine of no less than 3 million dinars (roughly $2,500).
Article 3 - The Ministry of Trade is authorized to dispose of seized materials in accordance with the law.
Article 4 - The Ministry of Trade shall issue regulations to facilitate the implementation of this law.
Article 5 - This law shall be put into effect 90 days after its issuance in the Official Gazette.
My favorite article is article 3. What seized material? Shouldn't you first authorize the seizure before you go around telling a ministry what to do with the stuff once seized? That's kind of important. You are taking someone's property after all, you shouldn't be doing that by negative implication. So much for elegant drafting.
But more centrally, it's hard to see how anyone even remotely familiar with international human rights norms would not realize the obvious problem of legality inherent in these extremely vague formulations. Crimes have to be defined clearly, and "toys that incite violence" like "insulting Islam" is about as ambiguous as they come. The latter I get, by which I mean I understand why these formulations respecting religious defamation remain despite their vagueness, but there is no comparable reason why any decent drafter knowing what the hell they are doing would not think to define "toys that incite violence" with more clarity. Are we talking about toy guns? Squirt guns? Gory video games? Space invaders? What is a toy that incites violence?
Sorry, but that law made that whole line of reasoning respecting professionals writing laws nonsensical to me. Nobody drafting such a law as this one can really refer to themselves as a professional draftsperson. They are really bad at drafting, and really bad at understanding the background law within which to navigate.
There has been much discussion recently respecting proposed changes to the Afghan criminal procedure code that would prevent family members from testifying against one another in criminal court. These, it appears, are proposals being advanced by “Muslim conservatives” and naturally are opposed by human rights organizations staffed largely, though not entirely by Westerners.
Anyone paying the slightest bit of attention to this blog would be able to discern rather quickly which side of the debate I would be on—with the human rights activists, against the conservatives. But there is an irony to all of this. This notion, that family members should not testify against one another in court, that to do so is somehow an invasion of the sacred marital union and familial privacy, and that the state should not therefore interfere with such private affairs, is one that is Western in conception, Western in its normative framework, and Western in its historic application. It is, let me absolutely clear, absolutely and entirely foreign to the shari’a—conceptually, normatively and in application.
Those who want to find a Muslim acting as a shari’a apologist should go elsewhere, I’ve been fairly clear on where I stand respecting the shari’a, certainly not in entirety but as it has been mediated through the work of medieval scholars producing the classical fiqh—and I have described that historic work as severely problematic on any number of fronts, women’s rights among them. Hence, for example, the other proposed Afghan legislation getting attention, making child marriage easier for a father to engage in (or so we are told) does have shari’a antecedents, those which I have set forth at length elsewhere. This, however, does not.
Even those elements of the classical fiqh that might be fairly described as gender discriminatory demonstrate this. How does a man dissolve his marriage under the classical rules? He declares himself divorced. How does a woman? She has to have cause, and she then has to go to court. The judge evaluates the case and is empowered to dissolve the marriage. In other words, she sues her husband. Nor is dissolution the only basis upon which a wife might sue her husband. She can sue him because it is his obligation to maintain the family home, and she can attach his assets if he fails to fulfill that obligation. Ottoman court records are filled with such cases, to say nothing of the extensive Egyptian and Iraqi court files I have myself reviewed on this subject.
The notion that a couple cannot both be in court and be married is grounded in a different conception of marriage, one in which marriage is sacred covenant, not earthly contract. In other words, Christian, not Muslim. Hence spousal evidentiary privileges, and restrictions on prenuptial agreements, and the like, are all creatures of Western legal systems, not Eastern ones. In the Muslim world, we not only permit parties to figure out what a husband is going to give a wife if he divorces her, we require it as a condition of the marriage. What kind of contract lacks a dissolution clause after all? The Islamic conception has thus long been, without question, without ambiguity, that it is no more unusual for a wife to sue a husband and continue to live with him than it is unusual for a contractor to sue an owner and for them to continue to work together. Just business, you see.
Now it is true that this legislation only concerns criminal matters, and so would not change the relationship of the parties in family court. Yet once one considers the Islamic conception, the whole raison d’etre of the provision evaporates. Why in the world would it matter which court parties are testifying in? If we accept that the state’s job is to administer and adjudicate relationships as contracts, then surely that role cannot disappear when the husband is no longer a philanderer, no longer a deadbeat who won’t provide for his home, but is a wifebeater and a criminal. The normative framework disintegrates into total incoherence. So what the Muslim conservative is doing in this instance is not seeking to uphold shari’a, it is to import Western conceptions and Western laws. He’s aping the West here, not resisting it.
Some may object, and indicate that surely a beaten wife may testify against her husband in state court in the West, and prenuptial agreements are more common than ever. True, as it is true that the colonial era is long behind us, but when it existed, these conceptions did exist. They disappeared in the West, they were grabbed onto in much of the East, and ironically, by the most antiWestern of all political and social forces.
A similar story exists with sodomy laws, which were also largely introduced by the colonials and hence most of the anti gay laws that exist in places like Qatar, home of the upcoming World Cup, are actually colonial remnants, held to firmly by Islamic conservatives and described as retrograde by the very leaders of the very countries that introduced them decades ago. But at least in that instance, the condemnation and indeed criminalization of homosexuality has some resonance in the shari’a. Here it has none, this is not an Islamic conception, and never was one. And yet here are the “Muslim conservatives” demanding it, over the objection of those whose historical traditions are replete with ideas of this sort.
For those unaware, yet another cleric has found trouble with soccer (this link in Arabic), a Saudi one, Ibrahim al-Zubaidi, quite upset at some of the slogans used by those who support the Nasr club, which just won the Saudi cup. These folks refer to themselves as the Nasrites, and apparently coopted some Quranic phrases as part of their team's identity. So, "We sent thee not, save as a mercy unto the peoples of the world" became "We sent thee not, save as a fan for the Nasrites". (It rhymes in Arabic و ما ارسلناك الا دعما للمتصدرين for those who speak it. The one that really got him riled up was:
"إن الذين قالوا حبنا النصر ثم استقاموا تتنزل عليهم الصدارة ألا تخافوا ولا تحزنوا وأبشروا بالبطولة التي كنتم توعدون"، معتبرا إياها استهزاء بالآية القرآنية التي استلهمت منها
Those who say we like Nasr and then hold to it with rectitude, on them shall fall a place of preeminence, so that they shall not fear, nor shall they grieve, and they shall be given glad tidings on the championship which they were promised.
I think the obvious religious references surely come through even in the English. Glad tidings to the Gardens of Paradise becomes glad tidings to a soccer championship, and so forth. All rather tongue in cheek clearly, guilty of no sin to my mind beyond being somewhat sophomoric and silly.
But, says our Shaikh Zubaidi, "what is blasphemy after this blasphemy?????"
I'd give the good Shaikh examples of far worse blasphemy (merely as example, not for the truth of the blasphemy so asserted) but then I have this principled position of wanting to stay alive. As did many Nasserites, who defended themselves not, as I might sitting in the safe confines of America, with "you've got to be kidding me, go find some real sin to rile on about, leave me the hell alone" but rather demonstrations of their strong and abiding faith in Islam and its One True God.
In any event, in this our Wahhabi strong Sunni sheikh can join hands with his strong Shi'i counterpart Muqtada al-Sadr, who probably disagree about most things, and indeed whose followers would probably be involved in violence against one another if they lived in the same country, but who can certainly agree about soccer. I've indicated in a previous post Muqtada thinks the whole thing is a conspiracy to get Muslims obsessed with sports so America can keep the Muslim world subdued. His awareness of America's absolute mania over sports is obviously quite limited.
I find this sort of nonsense amusing in its own right, but also quite remarkable given the rather strong contrast between it and prevailing American attitude towards sport. For me the formative image of American football is the poster of "John 3:16" being waved behind the Dallas Cowboys endzone. I didn't even know what John 3:16 was, but I remember it as clearly as Tom Landry in that odd looking hat. Precisely what "For God so loved the world that He gave His only begotten Son, that whosoever believeth in Him should not perish, but have everlasting life" has to do with the Dallas Cowboys I remain uncertain. But there is God, there is America, and there is football, and it all seems to blend together into this remarkable amorphous mixture of entertainment and piety that admits no boundaries. It is all encompassing in its own way, but eclectic in its source selection in a manner that seems almost haphazard. I do not discount the possibility of fringe sects decrying the supposed blasphemy in this rather motley assortment of inconsistent loyalties, but they are fringe--by and large, the most faithful and churchgoing are probably the ones most likely to be wanting to hold up "John 3:16" at football games.
Our clerics, by contrast, seem obsessed with purity and noncontamination. If there is a loyalty beyond the Islamic one, then it is a threat, and to be stamped out. Hence the Shaikh's concern not merely with the supposed blasphemy, but in the manner that in his view the obsession with soccer pulls away from obedience to God, dilutes it, leads one to think of other things and stray from the Path. Muqtada likewise thinks it pulls us away from divine duty and economic development all at once.
This becomes evident even during our religious holidays, when American Christians manage to throw together a mythical supernatural being who distributes gifts out of his beneficence with a supernatural being in whom they deeply believe who distributes love and mercy out of his beneficence, and don't much seem to care about the obvious theological implications. Suffice it to say, we in the Muslim world have no Eid Claus. Even the telenovelas and late night shopping draw the ire of clerics, who feel the religiosity of the holidays are being lost in the distractions. Never mind that those "distractions" and that changed atmosphere create an aura that awes the heart of every Muslim child, warming him to the beauty of Ramadan just as much as any American Christian child warms to Christmas. Strip it away, and you have purity I suppose, but it is sterile, vanilla, bland purity, certainly consistent and yet utterly, utterly boring.
So I'll thank God for being merciful enough to allow us as a people to ignore the Zubaidis and Sadrs of this world. Leave it to them, and Islam would be no fun at all.
In my new book on the Iraq constitution, one of the points I make is that the popular culture often exaggerates the role of the judiciary in actually effecting meaningful constitutional change relative to the political branches of government--specifically the legislature and the executive. This is not, let me be clear, my own invention, Jack Balkin among others has said it long before I ever did, and before him there is ample discussion from Bruce Ackerman to George Fletcher to Barry Friedman respecting the limited power of the court to define the constitution relative to the people.
But the point nevertheless deserves emphasis, both because the popular misconceptions surrounding the powers of courts abound, and because even in academia, while the claim that the courts are not as powerful as we think is regarded almost as ho-hum, it does nothing to change the dominant pedagogy in American law schools respecting the evolution of the constitution. One damn Supreme Court case after another.
In reality, more often than not, what the Courts merely do is put their imprimatur on questions on which there is a broad popular consensus, and often one on which at least one of the other political branches has already staked a decision. The Supreme Court has not decided that same sex unions deserve constitutional protection, but plainly the executive branch is taking significant actions to advance the notion of marriage equality. As are state legislatures. Eventually, I submit, the Court will come around, and drag along the reluctant opponents, but it cannot be considered the driver of the legal or constitutional change. In fact, when the court attempts to take a lead on which social forces are bitterly divided, the result is usually a disaster. Opponents castigate it as illegitimate, ignore it, suggest it need not be heeded, and all of a sudden this supposed glorious judicial review power is brought into some level of contempt, by actors who take the constitution quite seriously. Just look at Lincoln's description of the Dred Scott decision in the Cooper Union speech to get a sense. The same Lincoln who did not believe for years he had the power to end slavery for no reason other than that the constitution did not allow it. American courts learned from Justice Taney's foolishness in that case.
The question of federalism is the one that divides Iraq, quite bitterly, much like slavery did America in its time. Except Chief Justice Medhat Mahmoud isn't quite as foolish and Chief Justice Taney--Medhat knows a tough question when he sees it, and he's not about to throw himself and his reputation into the middle of the federalism maelstrom. So the key is to find ways to avoid such federalism questions whenever one can.
Witness the recent Supreme Court decision of the Iraqi Federal Supreme Court, decided nine days ago, between the Ministry of Foreign Affairs, led by a Kurd (and hence a strong federalist) and the Ministry of Higher Education and Research, led by a Sunni Arab who is as centralist as they come. What basically happened was that some members of the Ministry of Foreign Affairs sought to have their college degrees recognized by the Ministry, thereby entitling them to some higher salary and increased perquisites. This often happens when employees obtain their degrees abroad, or in universities that are not certified and controlled by the Ministry of Higher Education. Someone needs to demonstrate that whatever degree they got from wherever they got it is equivalent to an Iraqi bachelor's degree.
I attempted it once with my US degrees, and ran into a host of problems. First, it took about seven months to get over the stumbling block that the name of my undergraduate institution was the Massachusetts Institute of Technology--the term Institute translated into Arabic (ma'had) denoting a community college. Once we managed to clear that by designating MIT as a university (mainly by changing its name to MUT for these purposes), there was the problem that my graduate degree was in law, whereas the undergraduate degree was in physics. Apparently, this rendered my law degree worthless. Who knew. I then tried the tack of describing my JD as a bachelor's degree, and a JSD as a doctorate, but that didn't work because where was the masters? And then the original bachelor's degree which I thought was on track to near completion turned out not to be because they needed more than a MUT diploma, they also needed a high school equivalency. By this time 22 months had passed, I was only planning to be in Iraq for 24 months for this stint, so I gave up. When working for foreign contractors in Iraq, I'm a doctor. If I want to work for the Iraqis, I'm a high school dropout. High standards is how they like to think of it. Bloody idiots is how I do. But I digress.
Anyway, these employees got their degrees recognized through some formal process, but by the Ministry of Higher Education in Kurdistan, not Baghdad. As the Ministry of Foreign Affairs has national employees working in a Baghdad based office, and regulations clearly indicate that degrees have to be from Iraqi universities or recognized as equivalent by the Ministry of Higher Education in Baghdad, this was a legal problem. So the Ministry of Foreign Affairs then asked the Baghdad Ministry to certify them as well, on the basis of the Kurdish certifications. Baghdad refused, saying if it's federal, then it's federal. We don't control that sovereign, we don't supervise its agents, we're not going to recognize their factfinding and their decisions. If these folks want their degrees certified through us, tell them to do it again and follow our procedures. (Why didn't they just do the whole process over again in Baghdad, you ask? See previous paragraph.)
The Ministry of Foreign Affairs was then sort of caught, as between employees demanding increased salaries and benefits they felt they deserved, a Kurdistan Higher Education Ministry insisting that they had the rights they demanded, and a Baghdad Ministry with the power to recognize the degrees and refusing to heed the demands to do that. The attempts of Foreign Affairs to negotiate this through some sort of big reconciliation committee with members of both Ministries on it that would recognize the degrees together also met with Baghdad's refusal on the grounds that it knows how to do its own business.
So the Ministry of Foreign Affairs tried something else. They sued on grounds of constitutionality. They said that under the Constitution, and Article 114 thereof, the drawing up of national education policy was a shared power, and this was (kinda sorta, if you squint a little) related to that, meaning Baghdad had to work with Erbil to get this done. The reconciliation committee, that is, was a constitutional obligation on Baghdad, and if it would not share power, then the Kurds could do it alone. (Why couldn't the Kurds argue reverse supremacy--that they could amend or alter any laws they want from Baghdad? No legislation at issue here, merely regulatory practice, by three Ministries--Foreign Affairs, and Higher Education in Kurdistan and in Baghdad).
This of course puts the Court in a bind, and one it immediately recognized as such. Rule with the Kurds, and Baghdad will be quite upset. And Baghdad, of course, is where these judges are, and surely they are not wont to seek to reduce its power. But rule with Baghdad, and surely the Kurds will stick their figurative middle fingers in the air and pay no attention at all, recognizing even more degrees and exacerbating the division and certainly not doing much to enhance the legitimacy of the judiciary. So the court found the escape it needed.
It's really not the problem of the Ministry of Foreign Affairs, they pointed out. They don't really have a dog in this fight, they don't actually "lose" if the Court rules in favor of the Baghdad Ministry of Higher Education. They keep their employees and in some ways they win because they can pay them less. By contrast, their victory likewise gains them nothing but employees they need to pay more. So there's no standing, a requirement for the court to be able to declare a regulatory practice void, and a technique used often by US courts to achieve similar results over the decades.
The societies and legal cultures are quite different, but when it comes to avoiding divisive social questions, my would the American forebears be proud of the manner in which the Iraqi judges have deployed these inherited techniques so skillfully.
Back in 2008, a young man named Suryani sought redress in the Indonesian Constitutional Court over an Indonesian law known as the Religious Courts Law case. That law more or less did what such laws do throughout much of the Islamic world do as to religious courts, which is assign matters of personal status to them and let secular courts do everything else. Suryani objected, and claimed that this restriction of jurisdiction was unconstitutional because it restricted his religious freedom to be bound by Islamic law well beyond the confines of personal status. He specifically mentioned the hadd for theft, it being somehow important to Suryani that he get his hand amputated if he steal, and that his religious freedom is being violated if that isn't applied. You'd think he could avoid this problem by but adhering to the original Islamic mandate not to steal in the first place, but let us not judge Suryani, lest we be judged.
In any event, there are various interesting points that one can make of this claim, but what I found most interesting was the Constitutional Court's initial response, which was to say that more or less Suryani was seeking a remedy it could not provide. A court can invalidate legislation it finds unconstitutional, the court explained, but of course it cannot simply dramatically expand the jurisdiction of a court by writing a new law for it. This is sort of basic constitutional structure stuff and to a lawyer more a high school lesson than particularly complex legal analysis, one that begins rather than ends the inquiry into the nature of law in our times.
Yet of course Suryani did not know it, nor is there any reason as a religious school student he should have. And his confusion on the point I think juxtaposes well into the rather inflated expectations of various Islamist groups on precisely what can be provided by constitutional formulations that prohibit laws contrary to Islam, referred to commonly as "repugnancy clauses". While Suryani's claim was not grounded in repugnancy (Indonesia has no such clause) but religious freedom, surely any court anywhere would have said the same thing if it had been.
Thus, imagine two states, A and B, both claiming to be Islamic, and both grounding much of their Islamicity in the notion of constitutional control over legislation. State A has no laws whatsoever on brothels. The criminal code is absolutely silent on it, so you can just open one up without a license, without a health inspection, without anything really because prostitution is entirely unregulated, and let's just say for the sake of argument, rather rampant. State B has a rising prostitution problem and so it has enacted a law requiring all prostitution to take place in licensed facilities, such facilities to lie no closer than 500 yards from a school or mosque, etc etc etc. (With brothels, perhaps this is fanciful, though State A resembles Turkey until recently, and state B resembles Turkey now, as to alcohol).
The problem should be obvious--no court in state A could do a single thing to address this rather obvious unIslamic aspect of its society because a court cannot make up a law pursuant to a repugnancy statute, it can only repeal it. Only State B's law could be challenged, though even there, the only thing the court could do is strike it down, resulting in. .. . State A. Hardly a result any Islamist would seek. So the laws permitting prostitution will remain, it seems.
And yet it is hard to see how any Islamist would regard state A in particular as sufficiently Islamic. Were this to happen, he'd thus find himself without constitutional weapons to force Islamicity he demands. You could tell me that the Islamist relies on the legislature in this instance, and legislatures broadly prohibit prostitution in the Islamic world, which might be true, though it does then mean that the state's commitment to Islamic law isn't so much essential to its existence as it is a majoritarian preference to be discarded when the majority changes its mind. That hardly seems consistent with all the constitutional demands Islamist parties make. They don't trust legislatures to be Islamic enough, and the judiciary is far more impotent than they imagine.
I think what Islamists envision is that the classical Islamic state is one wherein the government is somehow constitutionally bound to ensure that broad Islamic principles are upheld through law. That absolutely includes an obligation to shut down brothels. Not of course every single point of fiqh need be held to, but broadly agreed principles, and if the state failed to do it, then somehow some core violation was taking place, and there was some corrective mechanism to fix it. That certainly seems to be what poor Suryani wanted and it is a fair reading of what authorities did in the classical era through offices such as the muhtasib.
The problem, however, is that modern Westphalian nation states have no such mechanism generally, and repugnancy is an imperfect instrument at best. So you either need to change the fundamental nature of the nation state, and add institutions such as those that exist in Iran, or you need to give up on having all the instruments at the ready. It's a choice every Islamist group will have to face, if a state starts to secularize and legislate secular rules in a manner that Islamists find deeply, fundamentally objectionable.
For those who have not seen it, Ross Douthat had a very interesting op-ed a few weeks ago respecting three different views of Christianity active in the United States today. But to reduce it considerably, and blame me for that, there was (i) traditionalism, which more or less took the religious tradition seriously in negotiating modern ethical divides, (ii) spiritualism, which more or less suggested there was some core important spiritual truth underlying the faith and not to "sweat the details," and (iii) the new atheism, which more or less derided traditional faith as the silly delusions of idiots. Douthat's respective criticisms of the three is that the first proved inflexible in the face of massive social change, the second lacked rigor, and the third had an entire disconnect between its scientific certainties and its moral ones.
From what I've seen, Douthat has received his fair share of criticism on the third of these, though I never really thought the man was claiming to describe atheism, only a particular contemporary populist species of atheist evangelism which both considered anyone who believed in God as an idiot because science has proved otherwise and who was equally morally certain about liberal values that of course have no scientific grounding. But that's not my point.
My criticism, as someone who is probably the Muslim equivalent of Douthat's second group if I must reduce myself to a stereotype, is that the first has been mischaracterized when described, relative to the second, as rigorous. To be clear, I claim no rigor lies in the second group. When I do not think I should treat my wife as my child, (i.e. as a human being with dignity but one whom it is my responsibility to discipline), but instead think I should treat her as an equal, it is fair to say I am not "sweating the details." "Pissing on the fiqh" would be the more irreverent way to say it, but the point is the same. And I would repeat that as to slavery, as I have in a previous, popular post. (My claim relates here to a moral position, not that I am somehow perfectly living my own moral precepts. Everyone has their failings, and their beliefs.)
Yet if this blog stands for anything, and if my scholarly career has been built on anything, it is the principle that this entire notion of a rigorous tradition is something of a mirage. Much as the American Legal Realists derided legal doctrine as being somehow determinate through dedicated engagement with a corpus of primary material, so do I in the context of the Islamic legal tradition, deride similar conclusions of determinism through rigor. It is not "rigor", it is merely ideological preference disguising itself as rigor.
So the Muslim traditionalist, and I, both piss on the fiqh as it concerns slavery. The traditionalist might disguise this by coming up with plausible reasons that abolition is somehow consistent with Islamic practice even if not mandated by it, but really, that's not her moral position. Her moral position is mine, which is William Lloyd Garrison's, which is decidedly not the position of the fiqh-every slave is a stolen man, every slaveowner a man stealer.
Yet of course the Muslim traditionalist, and I, disagree as to the matter of a wife's obedience. Here the traditionalist will point to the tradition, and expose its clear descriptions, and maintain I have made a mockery of that tradition by suggesting that somehow a wife is not obliged to obey her husband. Indeed that this is her primary marital obligation, much more so than rearing children or maintaining a household, even as it is a husband's marital obligation to provide for the household.
Have I made such a mockery? Yes, I've pissed on the fiqh once again I'm afraid. Have I done it as a moral preference? Yes. And yet I still call myself a Muslim, still sincerely bow my head to an Almighty God who sent an angel to talk to the greatest of men in the cave of Hera? Yes. And in all of this, I claim no distinction from the traditionalist, who has likewise rejected the moral prescriptions of the tradition as they concern slavery, but one. He grasps hard to the tradition on the issue of marital relations because that's how he likes his marriage to be. Not because it is more rigorous to do so (his position respecting the moral outrage of slavery prevent that possibility), but because he prefers it, even as I prefer its opposite.
Why is this so important to expose? Because whenever a moral issue arises, whether it is slavery in the nineteenth century, gender equality in the twentieth, or gay rights in ours, a "tradition" rears its ugly head, and we are told change is not possible because it is not consistent with the tradition. It would lack rigor to change, we are told, one cannot simply adopt newfangled ideas and yet manage to somehow render the tradition coherent. And progress is held back decades on this basis.
And yet, all of a sudden, at some point, it all breaks, the change occurs, the tradition swallows it, manages to domesticate it, and somehow the supposed rigorous tradition survives, only to have the cycle start up again with the next major social change. That's not rigor. That's social conservatism. Let's be clear, I claim no reason that my moral preferences are superior, so I don't mind when someone describes themselves as a social conservative, indicates they don't like my ideological and moral preferences as a social liberal and challenges me to political debate on that basis. I'll win that argument sometimes I suspect (equal rights for Muslim citizens) and lose it on others (the right to multiple marriage). That's political argument, democracy is as best a way as I can imagine to contest it peacefully, and I can live with its results.
But what I do mind is when the social conservative seeks to delegitimize my position on the grounds that it is somehow lacking in sufficient rigor and that if I only understood the tradition better, I would understand how antithetical to it my ideas are. That, I think, is the falsity the Realists tried to expose in their times as to American law, and the one I'll continue to work to expose as to the shari'a in mine.
PS This is a "sort of" reply in that my expertise lies in the Islamic
legal "tradition", not the Christian one. Yet if I've seen legal
doctrine debunked through American Legal Realism, and if I see Islamic
legal doctrine worthy of a similar debunking, then it is hard to see why
Christianity would be different. That is admittedly facile, and hardly a response
to one who insists that the Christian religious tradition has rigor
where others do not, but I'll leave the more nuanced argument to those more
versed in the subject than I.
I was in New York this past weekend attending the annual American Association of Law Schools meeting, and then visiting a friend. My friend mentioned her means of getting her children to perform chores was through the medium of a "contract" to be in the family. Engaging in this contract required the children to undertake some obligations, as it required the same of the parents, and performance thereof was an ethical and moral duty. I asked what might happen if one of the children chose not to be part of the contract, given Edwin Patterson's famous dictum that one has freedom from contract and as much as they have freedom to contract. The response was that the mother would then say she chooses not to perform her obligations under the contract, such as take the child to a promised basketball game or cook the kid dinner. The father then added it works because kids have no leverage.
Given this background, where the child may starve or sign, this contract resembles no contract I've ever seen, and if it did, one would immediately dismiss it as unenforceable. I am aware of course that this mother would never starve her child, she'd just get upset and order him to do the damn chores and feed him. Which of course is why it's not really a contract, the background obligations exist on both sides and this is merely post hoc justificatory exercise.
The same of course could be said of the social contract. I never signed it, never negotiated it, have no control over its terms and yet somehow I'm bound to it and cannot exit. If I tried, I'd be subject to the criminal law. Nice contract.
Musing over this, I wonder whether or not the contract model is merely a method by which the secular hyperindividualist West generally, and the secular super hyperindividualist United States in particular, seeks to rationalize and legitimate the imposition of core obligations that would otherwise appear unseemly to impose to a hyperindividualist, and yet must be imposed if the unit is to persevere.
To elaborate, the most hyperlibertarian libertarian I think agrees that the state can use its force to ensure that an individual who has voluntarily bound themselves to contract to do something actually does it. (If not, I fail to understand how commerce works in the libertarian universe.) There is something inherently fair when one is bound to obligations undertaken through voluntary association therefore, something altogether lacking when the obligations are undertaken through imposition by a more powerful force.
So to an Iraqi, there is no particular need for a contract to be in the family. You are my son and as my son it is your duty to obey me. The "fairness" such as it is belongs to God, and perhaps it might well be pointed out that the father has significant obligations also imposed by God that run to the son, and that it isn't a one way street. Hence my father would never agree to give us allowances, as we had no right to them. A present, yes, but that's a dispensation by discretion not an entitlement by right. And if we needed a book, he would get it and point out his obligation to educate his children.
You don't need, in other words, a justification beyond the Divine, Robert Cover's point about Jewish law (and Islamic law too) as more focused on obligation than right being applicable here. Though in Iraq you often don't even need that. There are few phrases more common, and more infuriating, in Iraq than "mai seer", roughly translated as "it doesn't work that way." Try any innovative commercial transaction and somebody somewhere will tell you that pretty quickly. It's intended to shut down debate.
Yet "you must obey me because God ordered you to" does not work to the secular mind, and "mai seer" doesn't work to the individualist one. Why doesn't it work? I want to do it, I get to do it. And that attitude has its advantages in innovation and personal and social advancement in the commercial realm certainly and undoubtedly the cultural one as well. The more Iraqi just keep your head down and do your thing because that's your obligation tends not to lead anywhere useful so far as I can tell. Yet, of course, no society or family could actually function unless you impose a priori obligations on its members that they owe to the collective whether they individually choose them or not. It's nice to say your army is voluntary, but your tax collection system can't be, for example.
So we end up moving ourselves into this strained conception of obligation through voluntary association, i.e. contract. The child has a "contract" with the parents. They agreed to the deal, and therefore it's fair to impose it.
The father who seeks to compel his daughter into marriage is not, somehow, violating a core liberal truth claim which we impose on him. No, he's part of a social contract that he's now breaching. Never mind that he never signed such a contract, never agreed to it, cannot get out of it, and he doesn't think the alternative to giving up this power to compel his daughter into marriage is a state of nature where anyone can do anything to anybody without consequence. That's because it's not. The alternative is the replacement of the state with other forms of order--tribe, religion, whatever--that he finds normatively preferable. But we don't have that preference, and we're not comfortable just saying our liberal religion rules here, and so we talk of "contracts" to avoid a "state of nature" that nobody's ever seen and couldn't possibly exist.
Even more telling are how such items are often reported in the news using a crude version of social contract that is on its face completely unsustainable (and of course one all too crude and inaccurate to be defended or articulated by any competent political theorist or philosopher). He agreed to come to this country and these are the rules here, I've even heard some say in such context on CNN, presumably because it sounds fairer. He asks to come in, he has to accept the ground rules and he didn't, so jail. breach of a social contract. Except of course it's a complete red herring. Could he compel his daughter into marriage if his ancestors were brought over by your ancestors in a slave ship? Or is he still part of the social contract in that instance? Guess it's not about immigration then.
There is a great deal of rhetoric surrounding chapter 4, verse 34 of the Qur'an which seemingly gives a husband license to strike his wife under certain circumstances, and I find most of it misguided and unhelpful. Mostly, it's either folks trying to demonstrate that Muslims are at heart wife beaters and so their values are fundamentally inconsistent with what it means to be an American and so let's ban shari'a, or ban Muslims from planes, or ban Muslim visas, or something. Or it's Muslims arguing in fact that the verse isn't about abuse and to argue it is results in misunderstanding the verse. In either case, it's substituting the real ethical dilemma for a false legal one that while being more politically appealing in our sound bite spin it how you like it culture, is more obscuring than it is clarifying.
Here's the verse and I'll use Yusuf Ali's translation so nobody accuses me of making words up. (If you want to accuse him of that, you can, but it's not like I made the man authoritative):
Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all).
I underlined the beating part. Now anyone who knows anything about legal evolution can tell you that if your real problem is the physical abuse of wives by husbands based on this, on its own the verse is not the problem. Limit, distinguish, qualify, and pretty soon you're left with a pretty thin rule. You already see it in the translation above by Yusuf Ali. Note the "lightly" in parentheses. That's because it's not in the actual text. But it's certainly a plausible interpretation, certainly qur'anic verse is qualified like that all the time through reference to other interpretive techniques and other revelatory text including the Sunna. Even more plausible is that it is a "last resort", to be used after admonishment and refusing to share a bed. Notice the "first" and "next" are also in parentheses, but I'm sure you could see how a modern Muslim opposed to spousal abuse would say that these things are listed seriatim for a reason. You start with the first and move up, you can't start with the last. (The other reading would of course be that these are different options given to a man to use at his discretion in whatever order he pleases). And finally there is the act that has to earn the rebuke, which is the woman acting in a fashion described as nushuz. I know what that means in classical and traditional fiqh, it means she isn't obedient, but notice here it becomes "disloyalty" and "misconduct" which sounds worse. Again, plausible.
So could you read this verse to permit a husband to beat his wife badly more or less any time she doesn't listen to him, with limited exceptions? Probably, at least on its own, though surely some would point out the Sunna clearly wouldn't permit that I suppose. In any event, do you have to read it that way? No. And in a modern world in which there is a preexisting disfavor toward physical abuse of wives, how do you think it's going to turn out? Easy.
First, the wife has to have acted particularly badly. Then you have to admonish her. Then if she keeps doing it, you abstain from sex with her (note the pervasive Islamic attitude on female sexuality--women crave sex more than men, so if you want to set a woman straight, deny her sexual pleasure, and she'll come around), and then, and only then, if she really persists, then you can hit her lightly without using an instrument and not in the face and if you do more it's a severe sin and you are a criminal if you do even that you're really not a great Muslim but it's thinly and barely acceptable and it should be symbolic and not painful and all the rest of it. And that's plausible too.
Go from there to a determination that there is a public interest problem with people misreading the verse to authorize really hurting their wives, as Fadlallah said, as I think even Qaradawi said though I don't remember, and it's pretty easy to get to a ban on hitting your wife via exercise of state's discretionary power and earning the full support of Muslim imams to that end. Really, honestly, it's not a hard set of steps, lawyers see this sort of evolution in constitutional interpretation all the damn time and it is perfectly plausible and does not engender problems of legitimacy as a technique when social forces push to that result. You can easily get to we will call the local police on you if we see so much as the slightest bruise on your wife so get straight or go to jail.
(I leave aside less plausible interpretations by the way, such as that the term used in the verse does not mean "strike", but "go away from", as in take off for a while if your wife is that rebellious. If you can just make words mean whatever you want then of course nothing is a problem. But if they do mean things, then dharaba means strike. So when God tells Moses strike the rock with your stick and then says out from it exploded twelve water springs from which Israel could drink, as the Qur'an does, surely it doesn't mean go away from the rock with your stick and let it explode. You'd have to ask in any event why God would use such a confusing word if He wanted people to just walk out when their wives were rebellious).
So the problem isn't spousal abuse, or put better to the extent that spousal abuse is a problem in the Muslim world (and it is, as it is elsewhere including the United States) it's not because the Qur'an offers no alternative option. In that sense, the Islamophobes have it wrong. But in refuting the matter, I think Muslims fail to then grapple with the deeper problem, which is what the verse clearly maintains as an ethical (i.e. not legal) sense about spousal relations.
To illustrate, if we assumed the verse was about the treatment of children, then I think we'd be done here and no ethical problem presents itself. I just plausibly gave you the interpretation you need. Admonish your kid if he disobeys. Abstain from addressing him (I'm leaving out the part about sex that occurs as between husband and wife because obviously it wouldn't apply here). Then if that doesn't work, strike him, lightly, not in the face, without an instrument, in a symbolic fashion, and if you take this as license to do more, then we'll take your abusing ass to jail. I see no problem. I slap a kid's hand all the time if he grabs something he shouldn't. Not hard obviously, but as a rebuke to show disapproval, and add a disapproving look to make it clearer.
Clearly however, that's not how I and most of my Muslim friends see our wives. They are our partners. We seek their advice and counsel, as they seek ours. We share with them our troubles, as they share ours. And of course we disagree, but then we communicate and work through it as partners. And that's our very strong ethical sense of how things should be. And yet that sense of equality and sharing is simply not represented, at all, in this verse. I don't mean you cannot get it from other verses, because you can. I mean you cannot get it from this one, which treats a wife as if she were a child to be admonished and set straight by a husband who has a degree over them.
And that's the bit that should trouble any Muslim, me very much included.
As those who have read it know, my book discusses sectarian divisions within Iraq at length, because they are quite serious and problematic and help to define the primary constitutional challenges facing the state as it moves forward. Moreover, I've been on a few listservs where the broader issue of the Shi'a Sunni divide, well beyond Iraq, seems to have arisen almost in coordination across the different sites. Those are private listservs so obviously I won't reveal the substance of any discussions there. However, it did inspire me to consider the matter and where it stood in this particular time of rising tensions. To which end, I have come up with three principles that help I think illuminate the issues.
The first is that the underlying theological divide is quite serious once one actually thinks through it. The reason is simple enough--Shi'ism defines as core doctrine the principle of the Imamate. God designated twelve successive people following the death of the Prophet Muhammad to act in a uniquely authoritative role in the community. They are not merely political or even religious leaders. Rather, they are infallible. They understand hidden and esoteric meanings of the Qur'an. When they say something, it is foundational text, as the utterances of the Prophet himself are, as the Qur'an is. They are not quite apostles, God does not speak to them through angels, but they are divinely blessed and divinely inspired. Sunnism does not have that, and instead delegated executive authority to figures of much much less religious significance known as caliphs. (Michelle Bachman will tell you that Iran wishes to restore a caliphate. This is not true as Iran is Shi'i, which means they didn't much like the caliphate the first time around).
In any event, if you believe in the Imamate in this fashion, then you have to think that people who don't, and let's add Companions of the Prophet who didn't, are in some way deficient in the faith. You can't both think the Imamate is so fundamental and clear, enunciated by the Prophet himself, and also think that when a group of Companions decides on the appointment of a political leader of minimal religious significance they call a caliph, even as the person God appointed Imam is washing the Prophet's body for burial, that they haven't strayed in some important way. Similarly, you can't actually reject the Imamate doctrine and not find those who consider it core and fundamental to be in some way off in their beliefs. It's one thing if they argue Ali should have been caliph and you think Abu Bakr. That you can sort of consign to history. But when one says Ali has a title Imam, and that has strong religious significance, it's hard to ignore.
That's the bad news but the good news that tempers it significantly is that more often than not, very few people actually think through the theology, and those who do are usually eggheads with little real world significance (i.e. me!). You can quite literally sit for hours among Iraqi Shi'a and not hear a word about Abu Bakr as first caliph, while hearing quite a bit about Sunnis. Most of the talk will be about how the Sunnis used to be privileged, how far too many (though not all, they will say) want to be privileged again, how they will not accept equality of citizenship but instead have to reinstitute apartheid and how that kind of attitude must be met with force. And talk to Sunnis and they'll mention how all too many Shi'a (again, not all, they will say) are really Iranians or at least obedient dogs ready to do Iran's will and they aren't real Iraqis willing to stand for the real Iraq. Is this a problem? Umm, yeah, a pretty big one. Is it theological? Clearly not. Nobody is talking about caliphs or Imams, and even when they do get into religion, they mix up the genuinely problematic (the authority of the post prophetic leaders) with the tangential, such as whether Shi'a should prostrate on little rocks rather than directly on the prayer carpet. That really is of no moment. When the foundational text being interpreted orders the believers to prostrate on the "earth", then whether or not "earth" means "dirt, rocks, etc." or whether it just means the damn floor, is truly trivial. That's a standard interpretive dispute, classical Islamic law has many of those. Even the favorite Shi'i doctrine whipping boy, the pleasure marriage, is not theologically significant. It's merely interpretive difference, a point of fiqh, not of core tenet.
People in other words don't think through the theology, or care much about it in any real sense. When times are bad, it might come up though in this jumble that more identifies distinctions than actually characterizes them in a recognizable theological pattern. When times are good, they sort of throw both sects together in some sort of hazy Islamic essence and leave it at that. So this brings us to the third principle, which is that from a theological perspective, it usually works out better when the sides stop talking about theology. This can be done if any given person, Shi'i or Sunni, merely applies the principle that it is not a compromise of one's beliefs to fail to be an ass to people who disagree. So if I'm a Shi'i, and I actually take seriously the Imamate, then as I said before I probably don't think terribly highly of the first three Rightly Guided Caliphs, who after all usurped the successorship properly belonging to Imam Ali. But then as a Muslim, I have to think even less highly of the Prophet's avowed enemy, Abu Lahab, as the Qur'an itself explicitly curses that guy. But then when was the last time I said "death be on the hands of Abu Lahad, death! His wealth and his earnings shall not profit him, and he shall reach the fire with flames . . . ." A few years at least never read those verses, just don't get around to it. And I'm not derelict in my religious obligation in failing to curse a guy God condemns who nobody likes, so why curse a guy who other people like when I know it bothers them? It's not taqiyya, I'm not dissembling or misleading, stand me up and make me tell you what I think of Omar ibn al Khattab, I will. but I try not to, because I'm just choosing not to be an annoying ass to people who like him. Same way I don't run off and tell the guy who is so proud to be a descendant of Robert E. Lee that he should be ashamed to be of the stock of a racist traitor. Leave the man and his delusions of the positions of his ancestors alone. If we don't talk about it, maybe we can get along. And so it goes with Ohio State fans and Michigan fans, Turks and Greeks, and yes, Sunni and Shi'a.