I'm back from summer break, and with a vengeance I am afraid.  This time, it's personal.

Normally I'm rather bemused by Tom Friedman's McEditorials, really idle randomness of thought packaged as Grand Theory, but today I was rather outraged by this latest gem.  The central theme, the lamenting of the lack of courage on the part of Middle Eastern political leaders, was a thought I have myself shared before, and thus I do not object to it terribly much.  It was in the closing paragraphs, where he dismisses the entire recent debate over the Ground Zero Mosque (really a community center with a prayer room in it two blocks north of Ground Zero) as a, and I quote, "sideshow", that I took deep offense. 

There are two problems with this outrageous characterization, in this context.  The first of them, in fact the more minor, is that for we American Muslims who are being told our religion involves the worship of monkey gods, who are being equated with Nazis, who are told by awfully hateful and intolerant people that our Prophet was the hateful and intolerant one, do not regard very much of this vitriol that suggests our presence in our own land is not welcome as "sideshow".  It may well be a "sideshow" to the future of Islam in the way that the Final Solution was a sideshow to the outcome of World War II--that is to say, the Allies did not really win or lose the war because of the Holocaust.  Yet I think a better word might be chosen than that--and no the Islamophobia that is hitting the airwaves is not remotely comparable to Hitler's outrages, obviously, the analogy is only to point out that to refer to a well orchestrated campaign of discrimination and marginalization of any type (horrificly unique as in the Holocaust or distressingly banal as in our case) as a "sideshow" shows markedly little sensitivity to the victims of that campaign.

The second, quite serious concern is that while I sympathize with the idea (and as I have said, I have myself posted about it ) that there is a failure of Muslim courage at times, an unwillingness to (in Friedman's words) "surprise" others by doing something they never thought a person they regarded as the enemy would do on their behalf, it is both shocking and irresponsible to do that in the very same editorial in which the community cebter with a prayer room two blocks north of Ground Zero controversy is dismissed as sideshow.  Why?  Because if you want that "surprise", then Imam Feisal is the one who delivers it.

Want a surprise? How about a Muslim imam walking into a synagogue and declaring, as Daniel Pearl was forced to just before being beheaded by Muslim extremist fanatics, I am a Jew.  Imam Feisal did that, in a service attended by Pearl's own father described by attendants as moving.  That certainly surprised me when I heard it, and would surprise anyone even vaguely familiar with the level of antiSemitic vitriol of the most pathological variety that dominates all too much of the Arab media.

Want another surprise?  How about a Muslim imam who said in a public interview that he is a "supporter of the state of Israel".  Friedman describes Sadat as courageous--yet no Egyptian politician worth his weight in salt calls himself a "supporter of the state of Israel" they only admit to grudging recognition.  Of course nobody mentions that public act of courage by Imam Feisal on the airwaves, the only part of that interview they want to cover is the part where Imam Feisal doesn't describe Hamas as terrorist.  I'll get to that in a second.

How about an Imam in America who spoke out forcefully and repeatedly against 9/11?  Funny that when 9/11 happened, all sorts of people wanted to know where the Imams were who were willing to criticize it.  Nobody seemed to want to cover Imam Feisal then.  It's only when this community center with a prayer room two blocks from Ground Zero was being built that people thought it important to pay some attention to what Imam Feisal has been saying, in many cases so as to misrepresent him.

In fact, at times I think Imam Feisal has been too willing to surprise.  The Swiss pass a law banning minarets (not buildings over a certain size, which is fine, but specifically and exclusively minarets), and he suggests that nothing requires Muslims to build a mosque with minarets, in fact they are often built to harmonize with their cultural and geographical surroundings. True, but, and I say this with the greatest respect to Imam Feisal, irrelevant.  The point isn't what Muslims may build, the point is a law that prohibits us, and only us, from building a house of worship as we please because the state in question does not want to see expressions of our faith.  But we're here in the West, we're not going to hide, we shouldn't have to, so get used to it.

Instead of focusing on Imam Feisal's repeated and genuine attempts to surprise, Friedman dismisses it as a sideshow, which is akin to dismissing Mandela's efforts to revive the South African rugby team as a "sideshow", and turning elsewhere, wondering why Mugabe is seizing white farmers land in Zimbabwe, surely more important to white Africans than a rugby team.   But in some ways I am being too harsh to Friedman, because at least he doesn't call Imam Feisal a terrorist sympathizer, a Nazi, a hater, and whatever other vitriol is being spilled on this man.  So far as I can tell, unsupported nonsense aside, the only really substantive objections are that they haven't ruled out taking money from interests connected to Saudi which as Jon Stewart points out is a sin of which Fox News is far more guilty with the billions of Saudi money invested in it.  (Though the hypocrisy in this case points in both directions in the view of this iconoclastic Muslim.  Prince Alwaleed, dear brother, seriously man.  What are you doing?  Fox?  I cannot fault you more than the rest of Wall Street for being interested in profit over principle but isn't there a line somewhere?  2.7 billion bucks to THEM?  After this?  Sell, tank their price, it'll cost you, and them, but both will recover.  And my will a point have been made.)

The more substantive objection is the refusal to describe Hamas as terrorist, and let me take a second on this one precisely because it is more substantive.  I personally am not a bridge builder, as Imam Feisal is.  I cannot help but call a scoundrel a scoundrel, it's my nature, and in fact it is why I have chosen to be a scholar and a professor, where I can present my ideas as I see fit to present them and leave others to make whatever use of them they will. (As a scholar, naturally as a teacher the role is different).  So it is easy for me to say that when you as an organization send a child of sixteen with bombs on a belt, and nails in his pockets onto a city bus to explode himself, as Hamas clearly does by its own admission, you are a terrorist organization, period, and no level of Israeli military activity, no matter how overbearing, egregious or oppressive, can possibly justify such horrible activity.  I've got no sympathy for Hamas, those people were on Jazeera for ages describing Zarqawi as a martyr and a noble fighter in God's cause, I think my views on that type of Sunni extremism have been published often enough to make that clear. 

But because of that, I cannot build bridges. I can be effective as a scholar with ideas on law in any number of places in the Muslim world, I can present ideas on constitutionalism and let them flower, or antimonopoly laws or dumping laws, all of which I have done in Iraq for a long time now.  But I'm not building bridges, I'm offering my own ideas on important matters of less sensitivity, and letting the sausage making of legislatures take its course.  And even then when something like women's rights comes up, and some jackass calls it the global standard that citizenship passes via the paternal line only and that the world's women do not consider this relevant to the question of gender discrimination, I cannot help but call him on it, describe his position as empirically wrong, a clear violation of CEDAW and then alienate him in the process, making me the guy with much knowledge and some interesting ideas, but not the guy who can find the compromise that will please everyone, in fact he'll only manage to upset them all.  Imam Feisal would try to make everyone get along, I would be the one telling the jackass to read CEDAW if he thinks he knows so much about global standards on discrimination against women.

The point is, if you want a bridge builder on sensitive political matters, then you have to take into account what they are building a bridge to.  I said this to liberals who wanted to know why Obama was spending so much time engaging conservative ideas and taking seriously Republican plans (or at least in their view he was, won't enter into that debate now).  He said he was a bridge builder, what did you expect I ask them.  Similarly, you want to send a Muslim over to the Middle East, or even make it a non-Muslim, to build bridges, what precisely are you going to do?  Lecture them on how great you are?  Save the taxpayer money and cancel in that case. Or are you really trying to find areas of common ground, aware that there is much in dispute, in the hopes of advancing a particular set of interests, whatever those might be.  If the latter, then you have to take into account that certain views are so entrenched, or so marginal, that it's best not to start with them.  So for example a bridge building exercise that starts in Iraq with gay rights is probably strategically a little dumb, because gay rights are so marginal in Iraq you aren't likely to get anywhere.  All respect to the folks who say it's about principle and we don't care what's strategically smart, in fact like I said that tends to be where I come from, but that's not where the State Department comes from or where they can afford to come from given what they do.  On the entrenched side in terms of ideas in the MIddle East is very much support for Hamas.  They are extraordinarily popular in so much of the Middle East that to describe them as the terrorists they are will effectively end the bridge building exercise.

In fact, there is some level of hypocrisy by critics of the community center with a prayer room two blocks north of ground zero on this matter given the ubiquity of that opinion.  So, for example, we are told by Christopher Hitchens or Rick Lazio that this Imam is some sort of terrorist sympathizer because he won't condem Hamas as terrorist.  But they are also categorically supportive of the intervention in Iraq that led to the fall of Saddam Hussein and generally supportive of the fledgling Iraqi democracy.  The problem being, you won't find one Iraqi politician of import who would describe Hamas as terrorist.  You won't find one who describes themselves as a supporter of Israel, as Imam Feisal does.  You won't find one that even is willing to admit they'd shake hands with an Israeli government delegation.  I exclude Mithal al-Alusi, he is marginal, but anyone from Ayad Allawi to Moqtada Sadr would not describe Hamas as anything but freedom fighters, and would if accused of shaking hands with Israeli delegations, as the secular Ayad was, object vehemently and vociferously, as the secular Ayad did.  And if that's Shi'i dominated Iraq, despite Hamas affinity for Zarqawi, you can imagine the balance of the Muslim world. 

I wonder why Lazio and Hitchens then don't think that the Iraqi intervention has led to the election of terrorists?  The views of as I said even the most moderate major Iraqi politicians are far more extreme than those of Imam Feisal.  There is some irony to the Lazio insistence that there are millions of peaceful Muslims but Imam Feisal isn't one, when in fact if he applied the absurdly stringent test he applies to Imam Feisal he's not going to find a single Muslim leader of import, one with a genuine following in the Muslim world, who isn't a terrorist sympathizer.  Let him try if I be wrong, these peaceful Muslims don't actually exist in the books of the Islamophobes, they never manage to attach names to them (or if they do they are nonbelieving, cultural Muslims--Salman Rushdie the most famous.  No beef with Rushdie but if you have to be a nonbelieving Muslim to be a good Muslim in the book of these folks, not sure how you can possibly claim to have no problem with Islam or anyone who reveres it as a faith).  For the most part, these "good Muslims" are only paraded about as abstractions to prove a lack of objection to the faith that is at the core of so much of the vitriol.  Gingrich, for example, thinks that you can be a Muslim and a patriotic American he says, there are lots of peace loving Muslims he says, yet putting a community center with a prayer room near Ground Zero is like putting a swastika near the Holocaust museum. 

Hmmm.  So there are peaceful Muslims, millions of them, namely the ones who accept the equating of Islam with swastikas.  Nobody has managed to find those folks.  Also absent are the bulk of the Republican party which seems more intent on misrepresenting Imam Feisal than on castigating Gingrich for an outrageous analogy like that.  I used to wonder with some bemusement how there could be gay Republicans.  Legitimate as economic conservative ideas might be, legitimate as much of the core Republican message of smaller government and lower taxes might be (not saying I agree, but certainly well within the core of legitimate debate), and sympathetic as some within the gay community might have been to that message, the determined efforts to marginalize homosexuality by Republican leadership to stoke votes seemed so sinister that I would have thought a gay person of conscience could not really vote for the party at least at the national level (naturally individual candidates are another matter).  After the really sick stereotyping of Hispanics during immigration debates, I began to think the same thing about Hispanic Republicans.  And now, despite the traditionally pre-Bush strong ideological affiliation of many nonblack American Muslims to the Republican party (I can understand why--I have seen what excessive regulation, bloated governments and socialized industries can do to an economy in Iraq), I am starting to wonder how those few Muslims who remain Republican manage to justify it to themselves--when a national Republican leader, a former House Speaker, compares Muslims to Nazis, and nobody in the party rushes to object.  All rather shocking.  But hey to Friedman it's a sideshow so let's pretend it doesn't exist and then criticize the Middle East for some obvious failings, and also point out (often, elsewhere) how they always blame others for their problems rather than looking at their own internal problems.  We in the US don't do that.  We just call those problems sideshows.  Good for us, big pat on the back.

To conclude, and in the interests of fairness and completeness, I do not think much, or actually most, public objection to the community center with a prayer room near Ground Zero is actually based on bigotry, only the most outspoken.  All of it is wrong, but some is based on I think ignorance, but of the geographical not ethnocentric variety.  Two blocks from Ground Zero would, in the context of Dublin Ohio where I spent most of my childhood, be awfully close, hence the comparison to the past objection of a Carmelite convent near Auschwitz.  But this is Manhattan, where I spent much of my adult life (or at least that part of it I lived here and not the Muslim world whether Indonesia or Iraq), and two blocks is nothing.  You're back in the city at that point. Those of us who have been to Auschwitz know there is nothing there--it's not a city, it's a moving memorial to horror of the most brutal variety imaginable.  You stick a convent there, then there's a memorial to horror, and a convent.  If that was what we were talking about, the opposition would be viable at least.  It doesn't work in the context of Manhattan, where a block away there's a strip club (Pussycat Lounge, passed it a number of times) and a couple of liquor stores on the same block.  I promise you if Auschwitz was where it was, and two blocks away there was a liquor store, and three blocks away there was a Pussycat Lounge, and in between some nuns wanted a convent, and then some organization opposed the convent, but not the Pussycat Lounge or the liquor store, both of which they were fine with, then I'd have to wonder whether the "Sacred Ground" objection was genuine.  As I said, I think most Americans haven't really understood these facts, or at least have not internalized them, which might help explain why Manhattanites in particular have less a problem than others in the country, and why a majority of Americans don't mind a mosque two blocks from their house, but oppose the community center with a prayer room two blocks north of Ground Zero

HAH   

I've written before about how so much within Iraq is mired in the thought of the late 1970's because that was the last time that the country was thoroughly connected with the world around it, and that a nation does not, upon opening up to the outside world, suddenly develop a mentality that is consonant with contemporary ideas.  Hence Iraqi economic nationalism sounds like the thoroughly discredited nonsense one used to associate with the Non-Aligned Movement, where to grow only what one eats, or to drill for oil without the assistance of foreign enterprise was a sign of strength as opposed to stupidity. 

But this is equally true, or perhaps even more true, in law.  One of the interesting things about watching Iraqi criminal procedure is the extent to which it relies on assumptions and paradigms that have shifted over the past several decades, so that one is almost witnessing a 19th century French trial  The types of qualifications and limitations that developed on the inquisitorial method, for example to allow for a more robust cross examination, are not really present, and it is a purely judge driven enterprise from beginning to end. 

Another, more recent way in which this has been exhibited, and the subject of this post, relates to the concept of judicial review.  Judicial review, or the power of a court to declare void a statute which is in conflict with the constitution, tends to feel more harmonious with the common law, where it originated, than in civil law systems.  The reason is partly that the civil law has tended to view its statutes as we do our constitution--sacred symbol of nationhood, nearly sacred text--but also partly that the very nature of judicial review seems to privilege the judge as the primary source of interpretation.  That is, the idea that the civil law is about codes and the common law is about cases is simplistic and silly--we have statutes (though admittedly fewer codes), they have judges.  The real issue to my mind is where interstitial authority is located--or in plain English how do you fill in the gaps.  The civilians tend to rely on commentaries which might discuss a few cases but primarily develop elaborate explanations that seek to clarify code provisions which are then additional source material, whereas we in the common law might cite a law review article or two, but primarily use cases to add to the source material of the original statute.  In both cases you construct a doctrine from a few words on a page, but the materials used do differ.

Judicial review necessarily makes some high court the supreme authority for what the constitution says, not subject really to alternative consideration.  So that if courts interpret the civil law, for example, one might pay attention to what one or another says, but it's not a binding interpretation, it's at most a very tiny addition to the doctrine, nothing compared to the academic discursions of the real experts in the law, the professors.  The same cannot be said when you create a Constitutional Court, as surely that court's decisions must be the major source of the doctrine, or the doctrine will be entirely divorced from anything real.  

Now while I think that's true, and maybe written on, who knows, it's also true that civilian countries are pretty comfortable with constitutional courts or councils as the case may be notwithstanding the civil law history, even as we are comfortable with the near complete codification of most common law doctrines.  Iraq, however, continues to stand out as this odd exception.  Hence, for example, not two days ago Mohammad Allawi of the Iraqiya list insisted in an interview on Hurra in Arabic that he didn't care that the Court had ruled against his party on the meaning of Article 76.  The reason he said was that the Court's function is merely to relay the meaning of the drafters, it's not like they add meaning.  That's not problematic, or rather it's typical Iraqi formalism and is not dissimilar from the types of originalist theories advanced here. Some find it morally objectionable, others (Realists like me) find it laughably preposterous as a descriptive matter (go ahead, be consistent and ban paper money if you think that, see how long you stay credible after that) but the point is, it's not inconsistent with the very concept of judicial review to say this.  But M. Allawi continues.

If the point is to find original intent of the drafters, well then the Court isn't really the final say, his theory goes, but the drafters themselves are.  They are still alive, there are records, we need to ask them, the Court's opinion on the matter is, to quote the man precisely, of no weight.   Now you've lost the originalists, and in fact the entire system of judicial review falls apart. Something like this might work in the case of an interpretation of the Civil Code. Not precisely, obviously a court judgment always has weight as to the litigants it is deciding between, but as a source of authority as a prospective matter, it's easily challengeable.  By which I mean, the fact that you can point to a decision by a similar court, even the same court (though you'd think it would be a different judge in that court as a strategic matter), that has the same facts and went against me isn't dispositive.  I can definitely say the judge's job is to interpret the law, and if he made a mistake, you cannot afford it weight, go back to the law itself (which will probably involve resort to the academic commentaries too).  In our world, well the Second Circuit interpretations of the law ARE part of the law for the district courts in that circuit.  In the civil law world, they are tangential.

But M. Allawi's theory cannot be right if judicial review is to work.  It has to be that if we're going to argue about who can form a government, and the high court says the clause means X, then forever more, it means X, or at least it does until you manage to convince the court to change its mind.  You can't, as you would tell a judge deciding YOUR case after an earlier case had been decided in a civilian system, that the judge isn't the authority the Law is, and the leading authorities say the Law means this.  But that's what he wants to do, except using the drafters as the leading authorities which is of course an additional problem because those guys aren't just alive, they're also still politicians with a significant stake in the outcome.  (That's probably because he has no choice, there's no scholarly authority to whom to turn). 

There is a danger in reading too much into the statements of one politician, and I don't mean to draw too much out of it.  in fact, I'm usually critical of Western accounts that pay far too much attention to the self interested statements of various politicos to decide a law is confusing in Iraq.  If that's the standard, go listen to what different people have said of the Arizona law, take ALL of them seriously and make it coherent.  So the point I would make is not so much that one politician thinks we should ignore the court, but the very interesting biases and assumptions that form the basis of his objection. As to whether this will lead to anything more significant, we will have to see.

HAH

There has been an uproar in the Arab press recently concerning Kurdish smuggling crude oil into Iran, it seems, for refining.  Unlike the American press, which focusses on the implications as concerns the sanctions regime, nobody in Iraq really cares about that and instead the real issue is the revenue.  Under current agreements as between the Kurdistan Regional Government and Baghdad (and Article 111 of the Constitution), that revenue is supposed to be split 83-17 in favor of the central government, based on the population of Iraq (naturally the same holds for the Rumeila oil field which lies nowhere near the Kurdish region, suffice it to say, the deal works for both sides.)

Anyway, smuggling I am sure works in both directions, I am not much concerned about who is responsible for what, I'm sure blogs will pop up as they always do criticizing me for hating Kurds, or being an Arab sellout who loves Kurds too much, or whatever.  Every time I help bring students to the US from Iraq I get the same criticism (if they are Kurds, I'm the sellout, if they are Arabs, it's because I secretly hate Kurds), I can handle all that.  The really interesting issue to me is how difficult it seems to be for people to change their roles from what they have always been to something new.  My  friend and colleague Feisal Istrabadi laments the lack of willingness of all sides in Iraq to trust one another.  Read his piece in the Texas Law Review where he discusses this if you want to see more, I don't agree with all of it, but it is intelligent and well reasoned.  I think he's right on much of what he says. I'd only add to it that the failure of trust seems to arise from a fundamental cowardice, a failure of courage on all sides. 

I think much the same happened between Arafat and Sharon.  Sharon was just too used to the Arabs as his enemy, Arafat too used to playing the guerilla who resisted authority and didn't embody it, holed up somewhere in Army fatigues swearing eternal enmity long after the age in which the notion of a Palestinian nationality was denied a time when he had cause enough.  Neither of them I think had the courage to change, and you see some of that in Iraq today.  Barazani in particular has spent his life in some level of contest with the Arabs, it's wrong to say just as eternal enemies, Barazani himself called Saddam in about a decade ago (maybe a decade and a half) to help him aganst Talabani, and Kurdish politics varies between using and demonizing Arabs, even as the Arabs, not to mention the Shah of Iran, use Kurdish resistance movements for their own ends and then sell them out , subejcting Kurdish peoples to counless miseries whenever it suits them.  The point ultimately is that I think the Kurdish leadership is used to being the outsider, suspicious of the Arabs, not trusting of anyone outside the family let alone the community (just go see the positions distributed to the clan in charge) and it's just so much easier to play guerilla.  There was cause at one time, only a moron would deny the reality of oppression of the Kurds.  The problem is there isn't the same cause now, it's time to create one nation, and that's awfully hard to do.

Lest I be accused of taking one side over another, the Shi'a can be accused of the same thing, of being so used to being deprived of power that they don't want to share it, the Sunnis can be accused of being so used to being into power they don't want to leave it, all of this can be said, and countless examples provided.  My point isn't that one party is to blame, it's patently untrue when asserted.  My point is that in order to create the trust that Istrabadi wants to see, there has to be courage, you have to be willing to part with the older ways, look at former enemies as friends, stop smuggling and start reporting revenues.  I see precious little of it in current authorities.  Barham Saleh, the head of the Kurdish parliament, certainly seems to want to turn a new page.  I'd say the same of Adil Abdul Mahdi, or Mithal, or even Ayad Samara'i on the Arab side, Sunni and Shi'a.  But by and large, I think they're all finding it hard, their colleagues who run things are too used to their old roles, sticking to the way they've always done it, and of course, as comfortable as it might be, the way they've done it has led to untold miseries to all of their peoples.  It is remarkable, tragically so, how unwilling people seem to be to change, even when their methods are so clearly unavailing.

HAH

As I've spent a fair amount of time advancing Realist notions, I thought it might be time about three years into the blog to note some limitations in my mind on the Realist position I so strongly advance at times.  In so doing, I invite you to consider a hypothetical universe in which it is suggested that our preamble be changed to the following:

We the People of the United States, One Nation under God, in order to form a More Perfect Union . . . .

To the non-Americans who are unaware, it's the One Nation under God bit that isn't there now.  I think it's fairly uncontroversial to say two things.  The first of these is that the most likely reading of this by a Court is that it isn't what a Realist like me would call "legal".  In other words, it doesn't actually change the application of the Constitution in any meaningful way.  It doesn't permit establishment of religion, it doesn't permit restricting the free exercise of religion.  It is possible that the provision could be read to advance a narrower view of the Establishment Clause, I would of all people emphasize the contingency of doctrine, but I think that if you thought solely of application, you'd have to think of this clause as being of relatively marginal importance and potentially, depending on how it unfolded, meaning wrapping in all the extralegal factors that go into adjudication, of no application whatsoever. You could say that it would allow symbolic references to God in governmental proceedings because the constitution mentions God now, but guess what, symbolic matters are already allowed, Justice Douglas tells us the Constitution presupposes a Divine Being (don't know how, but okay), prayers are recited all the time in Congress.  So in application, again, potentially meaningless. 

The second thing I would say is uncontroversial is that such a proposal would whip up a firestorm of controversy--from passionate defenders ready to devote hours on end to enactment to uncompromising opponents who would seriously consider giving up US citizenship if it was enacted.   And yet, again, not very much of it would be related to anything that would actually affect very many people in this country.

Much the same can be said of the endless debates in Islamic constitutional states respecting whether the shari'a is or should be "a source", "a foundational source" "the source" "the main source" or whatever of legislation. I've pilloried fellow scholars who take this seriously and in true Realist fashion have described it as transcendental nonsense.  At one level, it is, and I defend my criticisms against those who try to make the clauses mean something in their application.  They don't, legislatures aren't using the shari'a as a basic source of legislation in commerce, or even a source except at the real margins.  There IS shari'a on commerce, there ARE juristic rules on sale, nobody drafting modern law even knows what they are, let alone cares about them.  Or that's my experience advising Arab lawmakers.  So on one level, this is a red herring (exception for Egypt where the SCC did interpret the clause to mean something though exactly what nobody really knows it's too idiosyncratic to make sense of I submit, kudos to Clark Lombardi in any event for not musing on what the words mean but going into what the SCC actually does). 

But then at another level, a level I guess I'd call the nonlegal, obviously it means something to people.  Otherwise you wouldn't be able to explain precisely why there is so much passion in the debates.  In other words, it's not that Realism is wrong, Realism is the tool by which one may identify what this debate is NOT about.  It is NOT about recreating fiqh in commerce, for example, because nobody is really seeking to do that.  I don't retreat an inch on this, I think the academy is wrong because of its incessant desire to make some of these clauses mean something in application that they don't. 

But Realism isn't telling you what it is about.  The debate clearly is about SOMETHING, you'd have to dismiss the whole lot of impassioned arguments as the rantings of lunatics to decide otherwise. Now on its own my Realist side doesn't mind that passion is aroused about SOMETHING, I can't imagine Karl Llwellyn the Doyen of Realism would mind it either--I imagne he'd just tell you this phenomenon of excitement is not law whatever it is.  That doesn't make it stupid, it's just nonstupid nonlaw is all.

And that's true on some level, but there is a rub.  If one wishes to say this isn't law, and leave it to others to explain, then one is then saying necessarily that a great deal of constitutionalism isn't about law and abandoning much of the field to others.   OK, but in that case no person could credibly be describing what the constitution IS, in any society, without going beyond the law.  Realism isn't wrong, I'd be the last person to say that, but it cannot possibly describe a constitution, in negotiation or evolution, on its own because it excludes too much. 

I've come to think of this as I consider the Iraqi constitution, review its provisions over which there is deep division, and realize to my own Realist tended surprise that a good half of them have nothing to do with anythng that anyone would ever consider applicable in any meaningful way.  It's fascinating to see,and important to consider but it has to be in a prism that views the constitution as being more than an instrument applied by a neutral judiciary.  Too much debate goes well beyond that prism, and the story would be missed if the focus remained so narrow.

This is all dealt with in much more thoughtful detail in my upcoming book, which will be out soon. Or not really soon, but I'll keep everyone posted.

HAH

Reading Anthony Shadid's article in the New York Times yesterday--on the manner in which Iraqis struggle with the issue of not divvying up government positions by quotas AND YET the resilience of the practice remains nonetheless--reminds me of a parliamentary session in Iraq I had seen last year (watching on closed caption in the offices of the head of the Foreign Relations Committee of the parliament) respecting the approval of Ambassadors by the parliament.   A Turkoman got up and delivered a speech where he indicated that he decried the quota system  ( نظام المحاصصة for the Arabic speakers).  He requested and demanded the parliament end these quotas, where they decide on Ambassadors based on who is Shi'i or Sunni or Kurdish or Turkoman or whatever.  They represent Iraq and they should be Iraqis, nothing else, he boomed, finger in the air for emphasis.  It sounded good, though it didn't actually serve much purpose, other than making the process of appointment longer by virtue of having to listen to him go on and on about it, but that it seems is the nature of legislative process in any country.   In any event, that's not interesting.  What was interesting was seeing this particular fellow, not an hour later in the offices of the Foreign Relations Chair of the parliament, complaining that not a single one of the 42 appointees was a Turkoman, and trying to secure a promise that in the next batch, there would be at least three, though he was prepared to negotiate the number.

The point is not this particular representative, a fellow I actually like as a personal matter and whose name I have not used so as to avoid any particular embarassment to him.  But it does point not only to the phenomenon of quotism in Iraq, which Shadid describes well, but also the mechanism by which it stubbornly persists, which I think evades him.    I agree with him that it's not that Iraqis are simply pretending not to be fans of quotas for optical purposes as some have argued--to please the international community or whatever portion of it still pays attention to Iraq.  They have nonsmoking bans for that purpose.  They genuinely do not like quotas, just like Iraqis genuinely don't like corruption, and sincerely wish that they could wave a magic wand and make it all go away.  But I disagree with the use of the conventional explanation he adopts, which is that this is somehow related to a lack of national identity, or the unwillingness to engage in establishing the communal bonds that define "citizenship", to use his words.  So maybe there isn't really an Iraq, or so the theory goes. 

Part of this confounds me because he says in the beginning that America had a "decisive role" in helping create this state of affairs where sect and ethnicity have become the axis around which Iraqi politics are made.  So does that mean America obliterated the Iraqi national identity that was there before?  I think we can dismiss that possibility as utterly preposterous and one we would all dismiss.  People don't give up national affiliations to which they hold strongly justt because someone invaded them a few years ago, if anything it's the other way around.  Nothing cements national identity better than foreign invasion, Saddam learned to his dismay when he invaded Iran in 1980.  So then if there is no national identity now, there couldn't have been in 2003.  But if that is the case, I wonder, then surely politics were going to revolve around some axis other than the national interest, correct?  So what precisely is it that the United States did that was so "decisive"?  It is hard to understand how both America and a lack of national identity can manage to occupy the same space by way of explanation for Iraqi quotism. 

But contradictions aside, mostly I think this conventional wisdom is wrong, or perhaps better stated, deeply exaggerated.  I heard it back in the Iran Iraq war to suggest that there might be a Shi'a defection to Khomeini's side, because sect means more than nation.  There was no such defection.  I heard it when the Kurds set up their de facto independent state following the 1991 uprising--this was it, Kurdistan was never returning to Iraq.  It did, and its population went hornhonking insane when the Kurdish Talabani was named president.  (You don't like the vuvuzelas, try tens of thousands of car horns honking outside your house all night while you are trying to sleep).  I heard it when Peter Galbraith and Leslie Gelb and Joe Biden were all running around claiming that Iraq should be divided into some loose confederation, an arrangement that the constitution contemplates.  Not only did that not happen, not a single non-Kurdish province could get together 10% of its voters necessary to put the question on the ballot, even in the most "federal" of the provinces, Basra.  I just wonder how many facts need to establish themselves before it is more broadly acknowledged that there certainly IS an Iraqi identity, and that quotism isn't really about the lack of one. In fact the lamenting that one hears about the practice helps to establish more than anything the reality of the national identity in the contemporary period.  If one doesn't care about the nation, then surely quotism wouldn't be something anyone would be ashamed about.  I don't care about the World Cup beyond America's participation in it (or iraq's if they ever make it again).  At this point, I will stop watching the 2010 World Cup.  I don't hide that fact, I don't lament it, it's not a game I care about and so that's that.  To claim that I do care would be to demonstrate some sort of broader commitment that I don't have. 

Moreover, I don't really think it's fair to say that nobody in the national government thinks about Iraq at all.  I am perfectly happy to jump on the bandwagon on poor governance that leads to deep dissatisfaction with the government (check the immediately preceding post--I think this is UNDERreported) but of all the criticisms of electricity, it obviously has nothing to do with sectarian difficulties, or mor precisely stated the attempt to favor one sect over another in the provision of electricity.  Or water.  Or schools.  Or the distribution of the rations. If only the problem were that the Shi'a get all the electrity, the Sunnis all the rations, the Kurds all the water--THAT would be easier to solve.  In fact, nobody gets enough of any of these. Parochialism obviously hampers any efforts to improve these problems (have to get everyone on board to back it, and if you demand consensus, it takes longer), and it certainly means legislators behave as if they are less accountable to the public (wrote about that for the Harvard International  Law Journal Online--check it out here http://www.harvardilj.org/articles/Hamoudi.pdf  but this isn't quite the same as saying that nobody thinks about Iraq. 

The problem to my mind is that while there is a national identity, and there is national commitment, there are ALSO simultaneously other commitments as there would be in many places, not only to sect and ethnicity, but also clan and class as Shadid discusses.  These actually interact with each other- the only people Saddam REALLY trusted, the ones in the inner circle, were his clansmen from his hometown of Tikrit and its neighboring villages.  They're all Sunnis but a small subset of the broader Sunni population.  Or to take another context where class is MORE important than sect or ethnicity if you want something done in a government office, it's best if you know someone there who can help you.  More often than not, that's a relative, or a relative of a friend, or something.  So it could be someone in your social class--you are a Shi'i member of the high class Hunting Club, your Kurdish friend from college is too, his daughter is having a problem at a Ministry where you have a high position.  That Kurd is going to have a heck of a lot easier time getting her problem solved with your help than some Shi'i who walks in, chants a few things about Imam Ali and hopes that the staff help him out because he is a Shi'i just like the Minister.  And the Kurd wouldn't BE in the Hunting Club if she weren't from the right family.  Just like no Shi'i would be there from Sadr City, they'd never be allowed in.  The Sadrist who wants something done finds someone if he can in the neighborhood who works at the Minsitry, or maybe a local council member who might know somebody or something.  Better to be the Kurd in the Hunting Club in any event. 

All of that said, all of these distinctions count, but in politics, which is the real focus here, the ethnic and sectarian ones count most of all.  That is not distinct to Iraq--Americans are also Catholics, or Texans, or New Yorkers.  And New Yorkers are also Upper West Siders, etc.  But it was Iraq's traditional marginalization of Shi'a and Kurds that more or less made quotism inevitable if it was ever to become a democratic state in the manner that it has to date. I think that there was little that could have been done to prevent the current state of affairs where quotism runs rampant if Iraq was going to strive for more inclusiveness.

To understand why, say you are a Shi'i elite, say Sistani.  You do care about all of Iraq, I think it's wrong to say that Sistani only cares about the Shi'a, he could have done a great deal of damage if that were the case.  At the same time, as a Shi'i cleric you are deeply, fundamentally troubled by the fact that the community to which you are closest, the Shi'a, have never really been represented in high levels of government in any numbers beyond the token.   So a Shi'i could always be Dean of Baghdad Law School, or a member of the Hunting Club, but in politics, generally Minister of Education was about as high as a Shi'i was ever likely to get.  There might be an odd Shi'i in a higher role, but imagine the Republicans that serve in a Democratic Cabinet, or vice versa, and that more or less is how it ends up working out.  So you want to change that, and to do that you have to focus on numbers, which is what the Shi'a did.  We are a majority, the arugment goes, you've shunted us aside, we demand our majority to be recognized.  But of course the Kurd likewise feels pretty insecure and wants representation too.  Once the Sunni who used to have everything sees this happen, he wants to make sure he still has a role.  Then the Turkoman figures heck what about me.  And so on.  And most importantly, it can all happen in a state where there are feelings of citizenship, just feelings that are overwhelmed by a combination of strong overlapping identities and the realities of past forms of discrimination that, when redress is sought for them, result inevitably in quotism.  Everyone regrets its happening, but it seems impossible to avoid.

The United States, after all, hasn't entirely escaped this process either, it's just been more benign for demographic reasons.  I am thinking less of immigrants who are a smaller fraction of the population and easier to integrate over time, as their numbers increase very gradually, than the massive programs to finally give blacks basic civil rights in the 1960's after centuries of slavery and discrimination.  Blacks understandably thus liberated want a piece of the pie, they want to be sure to be included in the broader national fabric in business, government, law, etc.  And issues respecting quotas did arise.  Yet it would be wrong to say that blacks didn't care about the notion of America, or that blacks only cared about other blacks, for those who died in World War II it's a calumny to suggest such a thiing.  But they want a piece they've been denied, they want to make sure steps are taken to include them beyond just declaring a level playing field and everyone go home.  That's easier to achieve in a society where 15% of the country is black without devolving into quotism. Not easy, but easier.   But the point is, change the numbers so that blacks are 55% of the country (not 80% like South Africa, that's just a power transfer) AND were enslaved AND were discriminated against and move me to 1955, and whatever problems America had are much much worse in terms of how to adjust to the new changes.  Because then the blacks look around and wonder if they're a majority why aren't they running the place, and whites of course are sizable enough that they'll still want a piece, and the easiest solution, the one that proves the most reslient, the one that ends up being the "trap" into which they all fall, seems if not quite inevitable then surely very very likely if they're going to avoid internecine civil war. 

Each will decry quotism, and say that this is not how the country should operate, we should all be national citizens first. Each will mean that sincerely. And each. because of the history, will be extremely dissatisfied unless its representation everywhere is commensurate with its percentage of the broader population of the country.  And the only way those can both be accommodated is through the quota.  And so it is adopted.

HAH

Two recent news stories caught my attention over the past few days in the Arab press that I think deserve more attention.  The first, the biggest news story in Iraq to emerge to my mind over the past several months, was a series of spontaneous demonstrations in two of Iraq's major southern cities, Basra and Nasiriya, concerning a lack of electricity that led to the resignation of the electricity minister, Kareem Waheed.  The second, less important but it still stuck in my mind, was that a much heralded meeting of Minsters of Communications in the Arab world failed to reach agreement on the creation of an Arab-wide commission on communications to monitor violations and the like I suppose, and the matter was placed on the agenda of the next Arab League summit. 

These are related to my mind.  They both speak to a gaping problem in the Arab world, and one not much discussed in Western press, but to my mind central to the legitimacy of some of these regimes, from the ones for which I have no respect, Egypt and Syria, to those I think that are trying to make a real effort at democratic rule fitfully as it might be at times, chief among them Iraq and Lebanon.  The issue really relates to a nearly ubiquitous problem of awful governance.

Look, civil war is sexy, it's newsmaking, it sounds like the kind of thing a journalist should be covering, embedded somewhere in a combat helmet looking as idiotic as I, a law professor, would in a combat zone, though I'm at least smart enough to know my limitations so as not to get in the way of soldiers doing what they do.  But the point is, it garners attention.  People stewing in their homes without electricity getting really pissed off (go ahead, shut off all your lights, your computers, your televisions, your ac in summer heat in texas for 20 hours a day, and tell me how many days passed before you get really really mad) doesn't seem like news.  So nobody really thinks about it, until of course thousands appear in the streets, and then there is a story.

The point is, however, nobody demonstrated over Allawi's right to govern, or Maliki's, or anyone else's. The continuing fear is civil war in Western press and commentary, but nobody seems particularly excited about the political impasse, which is an odd way to prelude a civil war.  If you can't get people onto the streets just to say your candidate should govern, it seems hard to believe they'll go fighting for you.  For this and many other more important reasons, it seems clear to me that they don't care because the moment of civil war has passed in Iraq.  My upcoming book will be discussing this, but the notion that the constitutional ratification is going to lead to the country's dissolution is about as demonstrably wrong as can be by now.  The government is more in control and a detente has been reached among the major factions respecting what the government will look like that everyone seems okay with.  If there is going to be war, remote but possible I suppose, it'll be Arab/Kurd, not Sunni/Shi'i, meaning it has notjhing to do with constitutional formulations and everything to do with land grabs.  (Not constitutional because most of the Arabs, meaning the Shi'a, and the Kurds, both approved the constitution by overwhelming majorities). 

What they care about is not sitting in the damn heat which is higher than 120 F in the summer without any electricity. They care about clean water.  They care about being able to get a license to marry without sitting in some courthouse for six hours, and that's if they are willing to pay at least $250 in bribes.  Otherwise it's measured in days.  The problem in government legitimacy in Iraq is not about Allawi, Mutlaq or Maliki, it's not about Sunnis and Shi'is, it's about truly awful governance.  The government is absolutely terrible at just about everything it does.  Maliki got a pass when he managed to improve security dramatically, but everything else remains horrible, and his time to improve the lives of Iraqis is about up. 

To be clear, I'm not talking about legislative effectiveness.  Not that Iraq is great, but it's hard to measure which parliament in the world is the least efficient, heaven knows nobody thinks their parliament works.  Iraq's does pass laws, and we could argue about whether they do it as well as others.  But in terms of simple ability of the government to perform routine functions--mail, marriage, driver's licenses, whatever-- Iraq is extremely, undeniably poor.

The same largely does go for the Arab world, which is why I mentioned the communications ministers.  I think in the US we tend to dismiss such commissions as stalling for time, some sort of entity that will study things and claim to do things and actually be more or less useless, like the Human Rights Commission of the UN.  The fact that the Arab governments can't even manage to set THAT up is just symptomatic of the problem.

It's an important side, and a largely untold story. But to my mind, if the government topples one day (not soon, but could) and if dictatorship returns, it won't be because of some Sunni/Shi'a thing, and it won't be bcause of a secular/religious thing, and it won't even be because of an Arab/Kurdish thing.  It will be because average Iraqis finally decided they'd rather risk another Saddam than live the miserable lives they suffer now.

HAH

Hearing a story this morning on NPR about an American Catholic group who had traveled to the Vatican to protest the absence of women's ordination, and the response by some Vatican officials who shooed them away from St. Peter's Square reminded me of a story my maternal grandmother had once told me about her visit to the Grand Ayatollah Muhsen Al-Hakim in the 1960's.

That decade, for those unaware, is about when the Islamic revival was first starting to take hold in Muslim lands, and the notion that a woman had an obligation to cover her hair had developed wider currency than it had, say 10 to 15 years earlier when it was not taken very seriously at all at least among urban groups.  My grandmother, a Cabinet Member's wife and therefore necessarily one with wider access to the clerical elite than many (though to be fair clerics tend to be remarkably accessible people if you don't mind waiting a bit to see them), went to see Sayyid Muhsen, a person she, and just about every Shi'i I know from the most pious to the most secular, had a great deal of respect for, to protest this head covering stuff.  Was the Grand Ayatollah aware of how hot it was outside in the summer?  Didn't he know that the scarf effectively ruins one's haircut, making it entirely pointless to try to look good within lawful circles (among women, within the inner family), something the Grand Ayatollah had considered important and said as much.  Would the Grand Ayatollah consider easing this rather rigid rule?  (Again, important to note, the headscarf at that time hadn't become the litmus test, the line between secular and religious, the symbol of the Muslim culture wars, that it turned into subsequently.  My grandmother years later wouldn't ask such a thing of a Grand Ayatollah, or engage in serious debates about the wisdom of the scarf, even wearing it at times in particular company to defuse hat would otherwise be acrimonious debate.)  Upon hearing this, the Grand Ayatollah looked her over head to toe with this look of total incomprehension, said to her "pray.  just go pray"  and walked out on the wife of the Minister of Education. 

I am not actually sure which one of the two I like more from the story, but both actually rise in my estimation.  Neither is really diminished to my mind, it just points to a particular lack of perspective between cleric and lay person, particularly a lay person that very much considers themselves part of the congregation and self identifies as such but whose loyalty is perhaps not entirely undivided.  That is to day, such a lay person, such as my grandmother, such as those demanding female ordination of priests, views a cleric sort of like they view an elected official.  They don't expect the person to do everything they want, they expect them to lead and not just by opinion poll, but they want them to be fairly responsive to the demands of their community.  I have an issue says the lay person, with your rule X.  It's too hard, or it's too unreasonable, or it's patently unfair in a way God couldn't have wanted, and you should think it over again.  Again, not expecting to win every battle, but expecting their views to be considered in the determination of the religious rules.

The cleric, by contrast, views his job as shepherd, that's the traditional metaphor inChristian circles. And anyone who's hung around sheep knows pretty well if you're trying to get them from one place to another, listening to their opinion on the matter isn't going to get you far.  They're sheep, what they hell do they know. They start wandering west to get water because the sun is that way and heck it feels good on their face, but what they don't realize is the stream is to the east.  You listen to them, they all die.  You know better, you lead them.  It doesn't mean you don't care about them, it means you know their interests better than they do, and you don't really listen to them, they listen to you if they know what's good for them.  And while the Najaf cleric won't go so far as to use THAT analogy, they'll say something similar, just not something that makes a person into an animal which is just a bad idea in Arab culture in particular.  (Some mediation group tried to talk about benefits of mediation using animal interactions in Baghdad once.  Almost caused a riot with people yelling "I am not a giraffe! I am a person!"  I love that quote, so postmodern.)  Bashir al Najafi, one of Najaf's current Grand Four, told me in my last meeting with him the cleric is like a doctor.  The doctor tells me to take these pills, he tells me, and he points to some on his desk.  Some of them keep me up at night, some make me nauseous.  But I do it, he says, becuase I know he knows my interests better than me because he's studied it.  So far more diplomatic than the shepherd analogy, in fact very diplomatic because in his analogy, he's made himself into the guy who he wants the lay person to be, one who listens and follows and not one who offers opinions when they aren't wanted.

Within Shi'ism, we have quite a few who largely accept the paradigm in theory, meaning they don't claim to offer suggestions, though they might feel rather free to ignore a fatwa or another without necessarily claiming to.  (I mentioned in a much earlier post how a few Grand Ayatollahs in the 1960's among them Sadr and Sayyid Muhsen, tried to initiate a campaign as concerns smoking and creating religious restrictions on it. It went nowhere and soon was dropped).  As a result, our clerics don't need necessarily to bow to public demands very often.  I think everyone pays some attention to public demand, in fact clerics at times will say they'd be more outspoken about particular things, like the more extreme forms of bloodletting in the Husseini rituals, but they'd lose credibility with the public if they did.  So to some extent, this is about extent, and on a relative scale, our clerics feel free to walk out on people, even relevant ones. who they find presumptuous enough to tell them how to do things.

In the American tradition, a much different relationship holds in most Christian communities.  I still remember the first white person's wedding I attended, a friend in law school, and at the rehearsal dinner I was amazed how the minister sat by and took notes (took notes!) as the bride dictated to her precisely how the wedding was going to happen and what the minister's role in it was.  Our clerics don't do that, they walk in, as they did in our wedding, they tell YOU how it's going to go down, and they tell YOU what to say and when, and how long they will talk, and make sure the damn kids are quiet when I give my speech or I swear I won't go on, and so forth.  Your telling THEM you are paying the fees and the costs of the wedding and so you get to decide would be as ridiculous to them as your telling them you are also paying for your own coffin so you'll decide when it's time to die. 

So the Unitarian minister in the white people's wedding I attended in law school was at one end, where effectively the clergy didn't really claim to do much other than sort of lead in the manner that the public demanded and not act as we know better guides in any sense, and the Shi'a clergy are on the other, where they lay it out and do not expect dissent.  What's interesting to me about the Catholic church is how they are sort of stuck in between.  They want to be the body of Christ, they want to represent Peter, they hold to theories of papal infallibility which are even more conservative than Shi'a clerical doctrine where loyalty is demanded, unyielding, but the possibility of mistake also present (though if the cleric errs and you obey him, it's all good for you on Judgement Day--hence the obedience is reinforced).  Still, even if they have the doctrine, the Catholic Church doesn't have the congregation that really wants to be a flock.  Some of that is their own doing, hard to demand that type of loyalty when you're molesting kids, even sheep don't appreciate being led to slaughter.  But part is just part of a largely Western process of secularization that has led the lay folk to develop some level of distance from their clergy, and effectively start demanding of them more responsiveness.  So then they try to do that, but it's hard, because it's not a role the doctrine seems to support, and they appear clumsy and wooden in listening to the public that is supposed to be in their eyes listening to them.  It's a fascinating tension, between changing social realities and a doctrine that hardly takes cognizance of it, that might be good to watch in Western and Muslim circles alike.

HAH

Inspired by a recent comment exchange by friend of the blog, Yale's Andrew March.

I've written recently about Najaf interventions into politics, and how odd sometimes they can be in terms of their considerable distance from shari'a principles.  There is one aspect of this that deserves some consideration, which is that intervention in politics, any intervention precisely by inserting the religious figure into a heated debate, seems to case some level of legitimacy on the state's activities where there is no interference. 

That is to say, if we take the rather extreme case of Ayatollah Khu'i in Saddamist Iraq not saying a thing about legal obligation or the state, and confining himself purely to matters of religious doctrine, it might fairly be concluded that Khu'i has no opinion on whether or not you should obey state law, or work for the government, or serve in its army, or anything else.  "No intervention in politics" in that case does not legitimate the state so much as ignore it.  It's not a criticism of the Grand Ayatollah, not like there was another option in Saddamist Iraq other than confrontation, which only got one killed in the end.  But the point is, one cannot assume that Khu'i's quietism endorses or opposes the state.

But the problem is, once one enters the affairs of the state, some type of legitimacy is conferred necessarily.  Let's take a very limited intervention--that of Ayatollah Bahr ul-Ulum into the personal status disputes in the late 1950's, objecting vociferously to the notion of a unified family law that Iraq ultimately enacted.  So the real issue is that something is implied when one says that this law is bad and should not be enacted.  It seems to suggest that, at a minimum, the previous law was okay,   After all, Bahr ul-ulum could have simply told the believers to ignore everything coming out of Baghdad and just follow the shari'a as the scholars lay it out.  The fact that he does not object to the first law and objects to the second seems to suggest some sort of acceptance of the first law. 

Now that acceptance is admittedly limited, in that one could argue that Bahr ul-Ulum could be simply acknowledging the fact that the state can coerce some level of obedience and so while all man-made law is per se illegitimate, he may as well get in there and fix the really egregious shari'a violations and make this ugly but effective coercive institution less offensive.  HIs acknowledgment of state authority might thus be grudging and instrumental, not normative.  Still, it is recognition, which Khu'i never conferred.  Objecting to any single law is equivalent to saying the state passes some laws that are okay, or not really bad.

The limited endorsement is more normative in nature with a greater intervention.  That is, when Sistani declares it an Islamic law obligation that the constitutional assembly in Iraq be elected, he is necessarily I think endorsing the product that comes out that assembly.  Or at least he is obligating himself to object to the end product, the constitution or be understood to endorse it, as a normative good, and obedience to whose institutions is a moral obligation.  Otherwise, the Islamic law obligation makes no sense.  How can it be an obligation to vote for people who are going to create X and then object to X when they create it?  You might have a veto, or an argument can be made about the veto, but the point is, if the election of the constitutional body is to mean anything, it must necessarily confer a semi-autonomous right of the elected body to create a government through a constitution, and an obligation on the part of the polity, and its government, to obey that constitution.  Law is, in other words, a matter that must be obeyed.  We've come a long way from Khu'i.  Though it does have to be said, this endorsement has its limitations too. It does not necessarily confer approval of every law passed, or every regulation issued.  the endorsement is of the structure as a general matter, the possibilities of corruption or flaws in the lawmaking process in particular still remain at some distance from the juristic endorsement made.

And of course one could take one more step, end up where Ayatollah Khomeini was, and declare it an Islamic obligation for jurists to rule the state, at which point obedience to law is a primary religious duty, and all law and regulation created by the Republic part and parcel of a central moral code.that the believer must adhere to. 

The point is, there is something of a sliding scale at work, in that the greater the jurist seeks to involve himself in matters of the state, the more he is implicitly endorsing state autonomy and legitimacy.  It's fair to say that Najaf jurists are certainly eager to see the state correct some of its more obvious deficiencies, yet certainly do not want to be responsible for the failures of the state which at this stage in Iraq are all too plentiful.  So there must be intervention, to fix, but not too much, which would force an assumed responsibility.  I do not pretend this is the only reason that Najaf jurists intervene when and where they do, I only mean to point out that this is certainly one factor to be kept in mind.

HAH

I've written about this issue before on Jurist (http://jurist.law.pitt.edu/forumy/2010/04/iraqi-high-courts-understated-rise-to.php) but The New York Times seems to have some sort of unnatural obsession with the manner in which Maliki is advancing his position in the post election period.  The contention that Maliki is up to something sleazy just took a turn for the worse with the High Court's certification of the election results, results Maliki had sought to challenge, unsuccessfully.

First, as to the fact that Maliki is acting in a bare knuckles fashion for challenging the results, let's be clear.  He challenged election results, it is true.  It isn't unusual when you have two seats less than the person directly before you to challenge election results.  It is a legal right in any democracy to allow that when the vote is this close  If he hadn't challenged in that case with the votes so close, it would have been odd.  And he LOST the challenge.  So you'd think that fact, the Court certifying that Maliki has fewer seats than he thought he'd end up with, would help prove judicial independence. 

Apparently not to the New York Times.  They have managed to assert twice that I've read that the Court's interpretation of Article 76, which would allow Maliki first crack at forming the government, was somehow improperly obtained and was a strained reading of the Article which nobody had expected.  First, as to the text, it allows the "bloc with the highest number of representatives" to form the government.  Maliki says this means a bloc that can be formed after the election, by say the alliance of two parties that had stood for election separately. So if he perfects his alliance with the INA it would be his group and the INA.  Allawi says it's only the pre election parties that are being referred to by "bloc."  The notion that the text makes one of them right and the other wrong is rather silly.  It's ambiguous, and the Court picked Maliki's version.  The idea that the Court was unnaturally influenced seems odd--clearly the more important decision to Maliki was the number of seats.  even if Allawi had first crack, if Maliki kept a majority coalition together that would only be a formality--Allawi would get first crack, fail to secure a majority and Maliki could then get his chance.  It's far more important to maximize seat gains. What kind of captive court is it that decides against the government on the more important of two issues and against it on the less important?  And why would anyone assume that a court is captive for no reason other than it decided for a government in a single case?  How often do our courts do that after all? 

As to the Court interpretation of Article 76 being a surprise and something nobody had expected, well sorry I was in the damn room when the amendments to the Constititution were being discussed at great length, anyone who thinks this wasn't controversial long long before the election is just flat wrong.  The only irony is that the groups switched sides.  it was Sunnis who wanted the interpretation that "bloc" could mean post electoral bloc because they never thought they'd win an election.  They hadn't counted on the Shi'a split and Sunni unity.  And of coruse the Shi'a had never thought they'd lose so they adopted the reverse interpretation.  So yes politics caused hypocrisy.  Hardly a surprise.  The deeper point is we all knew, iraqis, the UN and the US Embassy that Article 76 might mean something.  Everyone had people working on this, again long before the election. 

But the real problem in this coverage it seems to me, aside from a general liberal distrust of Iraq and an insistence that its institutions are not working when in this instance as concerns this issue they actually worked quite well, is a profound ignorance of parliamentary politics on the part of what is a global paper.   Sure in our presidential system it would be an outrage not to let the winner be president.  But this isn't our system, the prime minister isn't the guy with more seats than anyone else, it's the fellow who has managed to get the vote of the elected legislature to form his government.  He isn't voted on by the people, the party list is, and they sit in the parliament and that parliament picks its government.  And legislatures don't vote in pluralities, they vote in MAJORITIES, 50% plus 1.  In that context, the result Maliki seeks isn't so radical in the context of parliamentary systems, Maliki's move is a recognized one, it's standard vanilla for a close minority party to try.  The Iraqi court had one recent precedent it really could have cited, and while it would have satisfied the New York TImes, or at least shut them up, it would have stirred up the Sadrists--that of Israel.  What happened in Israel in the last election, what Netanyahu pulled off, is EXACTLY what Maliki is seeking to pull off in Iraq, and the Times seems to think it's awful in one context, consonant enough with democratic politics in the other not to merit criticism or even mention.  (I on the other hand, no fan of Bibi, find both moves, Bibi's and Maliki's unproblematic on this matter).  Livni had more seats, as Allawi has more seats.  Bibi had more electoral allies, as Maliki hopes to cement for himself.  So Peres asked Bibi, not Livni, to form the government.  Unremarkable, to the American left.  Except when it happens in iraq.  THen it's bare knuckles and unethical and sleazy and has to involve ill dealing with the Court or how could it happen.  Silly, really.

There is another problem though, and that is of the Iraqi Court's failure to really address the basis of its position because of the extremely formalist biases that prevail on the court.  That is, an American reporter who has seen American case law sort of expects some sort of policy discussion to enter into a Court opinion.  Here, the policies clearly support Maliki's position, and I said that to the anger of Ali Allaq and Abbas Bayati back in September of 2009 when they as Shi'is supporting Maliki took the other side (again, back when they thought they'd have more votes).  What is the point of asking a person to form a government when you know for a fact that a majority isn't with them?  That is, if Maliki and the INA form a strong alliance, as is certainly their prerogative, then why ask the party with 35% of the vote to form the government when parties with 30% and 25% have indicated they will oppose the leading party?  He won't get the votes, stop wasting time and let the guy who will actually be able to form the government to form the government is the only sensible policy.  

But a formalist court doesn't want to discuss policy, that would suggest it engages in preferences over policy or that it has a role in making law, and formalists insist that judiciaries don't make law, only legislatures do.  So it has to parse words. But there's nothing to parse it's one ambiguous phrase.  And to admit ambiguity is to admit uncertainty in law, and formalist judges in Iraq will accept no such thing.  So they can't just say "look it means one or the other, and we pick the other just because we have to pick."  The Court can be comparative, but unfortunately the best example not far away is one it cannot use for political reasons.  (Iraqis do refer to Israeli politics in constitutional discussions often as a model, though following the example, with "and God curse Israel" after just pointing out something Israel that could be useful.  Even that would be hard for the court however. Closed door sessions are one thing, open public positive comparisons another. You could do it and survive, you can even visit Israel and be elected a member of parliament  in Iraq, it has happened, but there's a political price to these things.)  So the court really provided no explanation at all which admittedly is odd.  Not that it suggests anything improper--you can make good arguments for the position after all whether or not improperly influenced--but only leaves one scratching their head.

But it is what it is I suppose.  The American left determined to see Iraq fail to get back at George W. Bush, and Iraqi courts masking perfectly legitimate policy decisions and adding to the difficulties.   Not much to do other than comment on it all.

HAH

Though it has not gotten nearly the press it deserves, an Iraqi Kurdish journalist and poet was kidnapped and killed by the Kurdish Regional Government in northern Iraq recently (nobody else could have or would have wanted to carry this out, so the denials from the Barazani clan are worth nothing as they usually are).  His name is Zardasht Othman, and while his death is being reported by the same outlets that talk of the death of other journalists, the fact that this one was officially sanctioned really does make it quite different, and extremely troubling.

But really the first question is why did the authorites choose this particular journalist to torture and to kill (yes they tortured him first, Barazani's folks learned a few things from Saddamist rule it seems).  After all, Iraqi Kurdistan does have a fairly free press, which is not to say there is no intimidation, or roughing up, or harassment, or threats, but I've seen some pretty negative things said in various papers from time to time, and this is the first really major assassination.  It's odd to do now, after an election, the man was not exactly quiet before the election and was a prominent opposition voice, and certainly the Kurdish opposition Change Party (literally, that's what they call themselves--Obama has gone viral) is predictably up in arms, but not dead or under house arrest for protesting and pretty much openly accusing the regime of something everyone knows the bastards did.  So why did they kill this ONE guy?   If you're going to send a message, you'd think it would be more robust than this.  All this did is stir up a hornet's nest of protest and sure in the end the regime is there and won't go away, but it doesn't look good and certainly probably from their own strategic interest point of view would have been better to avoid and let the man speak rather than kill him and then have to deal with the protests that followed,  He wasn't Rafik Hariri, he was just a journalist, but now he's a hero.

The answer why him appears to be that he has been more provocative than most, and in particular, he wrote an article that landed him serious death threats.  The oped was entitled " I have a crush (انا اغشق) Barazani's dauhter.  That's my translation, the point is that the word "love" isn't quite right, it's a bit more clearly about marriage type lust/love than just the generic term love would suggest.  But the point of the article is not at all about Barazani's daughter, in fact she's not even really a character, it's in the voice of a simple person who cannot seem to succeed in Iraq because he has no connections and is looking for the ultimate one in order to achieve all of his dreams.  It is an eloquent and clearly provocative exposition of the shameful division within Iraqi society of haves and have nots, a demonstration of how poorly the state serves its "have nots", how meaningless government services tend to be for them, how unconcerned the state is with their well being, how law constrains them but not those against whom they need redress (the haves, who are above the law and use it as an instrument of social control), and as important as all else, how impossible it is to become a have unless you have family connections, because merit and skill and quality have nothing to do with how people rise in this society.  It is a brave voice, using the theme of Barazani's daughter to grab attention, but then moving by the second line to how wonderful it would be to be Barazani's son in law, and leaving the daughter behind.  Others have said this, in fact it's said often in iraq (a running theme of Friday sermons), we do have a free press by and large, but it rarely is said this well, or this brazenly.

But he mentioned Barazani's daughter is the real problem. How dare you stain her it was suggested, give us your name, picture and email address, others demanded,  Some even wanted his real address, ironically themselves sending him anonymous notes to make this implicit threat.  (Othman in a subsequent editorial points out not only the irony but the logistical impossibility with complying with the request of supplying information when the one who wants the information sent to them is anonymous).  The storm seemed to catch Othman a bit off guard, he mused openly whether Barazani's daughter was a nun such that she was supposed to be above being mentioned at all in a paper (though I've heard a few nun jokes I could relay to the Kurds if they think nuns are somehow off limits in our discourse). 

In any event, the whole notion of staining the family through mentioning the women seemed to be what sparked the current interest in this fellow, or at least seemed to raise the ire of readers of his Kurdistan Post pieces.  That's when the death threats came, shortly after that is when he was killed.  It all just seems so ironic.  In many ways Iraq is a nation that has come to value free press, journalists have been more outspoken, democracy has taken firmer hold, and people have become more active citizens.  But you go to the family, and we're back straight into Middle Ages.  You stain the honor of the women, we kill you.  You as a woman stain your own family honor we kill you too.  I heard a judge say that--an Iraqi judge, one who speaks of the rule of law and defends Iraq's Criminal Procedure Code and Penal Code (which DO criminalize honor killings though unfortunatley not as strictly as other murders) and he tells me to my face his daughter wants to marry a man he doesn't approve and tries it, he will kill her.  Not disown, not scream at, kill. A damn JUDGE.  Outside of the family, we've done well in Iraq, on democracy and free speech as per above but even as concerns women, relative to much of the Middle East.  No serious person in iraq thinks women shouldn't vote or serve as ministers.  The candidate with the second highest number of votes in the last election was a Sadrist woman.  Not a secular, a Sadrist--the Sadrists vote for women in large numbers.  Ditto on progress in female education, another complete nonissue in Iraq, women go to college nobody thinks that this is bad.  Take it back to the family though, and everything's different.  Back to the Middle Ages. I don't just mean strict application of substantive Islamic law in a manner unheard of in practically every other area of law, I mean other matters that aren't even shari'a based, like this nonsense of killing someone for writing a newspaper editorial than mentions your daughter.   

I saw this phenomenon dozens of times in Iraq, at least through 2006 (when the cops finally started to come together), where you'd be trying to figure out why it is nobody thought it suspicious when three non-Iraqi Arabs move into their neighborhood and start coming and going at the oddest times with other buddies.  None of our business they'd say if I asked who the hell those people were. But of course if one of them stared at one of the women in the neighborhood for let's say two seconds, THAT would start to become their business.  The family is their business, security is someone else's problem, even if you see something rather suspicious going on.  That the worst thing that could happen as a result of ogling (honestly make it the worst thing) is considerably less awful than the result of a terrorist bomb is not part of the thought process because the two are not connected.

Anyway, I'll stop, I'm bitter.  We've lost another courageous voice, nothing to celebrate today.

HAH