There is, I think, a common perception that somehow it is more difficult to rationalize the permissibility of same sex marriage in the Islamic tradition than there might be in the Christian. I actually think that is wrong, at least within those parts of the tradition committed to moral rationalism; namely, the Mu’tazila among the Sunnis and the Shi’a generally, though in particular the Usulis.  The rationalist tradition, to summarize and of course reduce centuries of moral philosophical thought into a sentence, regards the identification of the praiseworthy and blameworthy as intelligible through the faculty of reason, and further regards God as necessarily acting in accordance therewith. 

Reason, alone, of course is hardly sufficient to lead one much of anywhere without prior premises—indeed the call of many reformists for more “reason” in jurisprudence often seems to be a call to insert current ideological preferences in the place of the preferences of the medieval jurists. I, for my own part, have no objection to such replacement, though I think it should be done more openly and honestly than through a claim that it is somehow more “reasonable.”  But as concerns same sex marriage the premises of the medieval fiqh help advance the rationalist argument for same sex marriage, in a manner that they might not in at least modern articulations of Christianity.

One of my favorite activities in an Islamic law class when we discuss the rules of marriage is to ask students what the purpose of marriage is under the Islamic fiqh.  The non-Muslims are decidedly at an advantage, because they stare at me blankly wondering why I would expect them to know the answer to such a question. (The answer, of course, is that it is in the reading, which all too few do.) But the Muslim students often raise their hands and tell me of the Chapter of Rome in the Holy Qur’an, and the placement of compassion and mercy between spouses, and of course of the beauty of this world that is provided by offspring, and so forth.  And, of course, they are utterly, completely wrong.

The purpose of marriage is neither to produce offspring, nor is it to create a lifelong bond of compassion and mercy.  These matters, which are used to defend the prohibition of same sex marriages (in particular the latter one) in other religious traditions, are simply inapplicable in the Islamic juristic tradition. They are plausible readings of the Qur’an, but they are not the fiqh.  Rather, under Islamic law, the purpose of marriage has nothing to do with family creation at all. It is to render sex licit—to take an act that in the absence of the contract would be a serious sin, and to turn it into a legal activity.  Hence marriage is a highly recommended activity, rendered important to do whenever there is some fear that one might fall into the dangerous abyss of fornication.

So let us add to this premise the rather unremarkable one, to my mind, that a homosexual does not choose his or her orientation.  This is a more modest claim than that the orientation is genetic, importantly.  President Obama repeatedly informs us that the children whose status he is normalizing through executive order despite their undocumented status are in the United States illegally “through no fault of their own.” In other words, they made no choice. Suffice it to say, however, that genetics do not render them undocumented.

Thus, the fiqh posits for us that the sex drive is strong, nearly entirely overwhelming. And that God in His Infinite Mercy has blessed us with a means to satisfy that sex drive, to render it licit, to live not in constant unrequited desire, but in fact in harmony with His Will while still satisfying this core earthly need. This means is marriage.  Those who use it live in His Grace. Those who do not are sinners who have gone astray.

Oh, yes, one more thing. It’s not available to some of you, because of a preference you didn’t choose.  You have to just live with this overwhelming and near debilitating sexual desire and abstain from sex, or be killed for fornication.

The rule, I submit, is deeply and thoroughly irrational.

One can, of course, play the Ash’arite card, and insist that God’s Reason is superior to any ability of ours to comprehend.  In the rationalist traditions, however, the matter is not so easy.  I do not deny the textual sources that suggest different conclusions than reason alone might, nor would I suggest that the texts can be ignored in their entirety. And of course, I have always stood as a Realist in favor of contingency and preference—where what controls, reason or text, and what text, is determined by factors much more complex than the dry mechanical application of an interpretive process.

All of this may be true, but a single point remains true alongside it.  The argument exists, and it is eminently plausible.

HAH

First, like me on Facebook or subscribe to my Twitter feed, I'm now all in on professional social media.  Links lie to the left.

Moving on to the subject at hand, many of you might have heard of the draft Shi'i Personal Status Law approved by the Iraqi cabinet some weeks back and sent over to the legislature to enact into law.  Nothing has happened yet and I suspect nothing will, as the draft is far too controversial to make passage likely.

Nevertheless, there has been a fair amount of discussion respecting it, most relating to human rights considerations, and I decided to take a closer look, which is when I realized how appalling it really is.  Not in terms of being an affront to human rights, though it is that too, but in terms of being a haphazard, ill considered, sloppy law almost organized at random seemingly by some 25 year old kid in the Ministry of Justice delegated the task and given less than a week to do it.  If it is the effort of anyone older than 25, or anyone with more than a week, I would be very surprised. 

Specific examples appear in my Jurist piece which I encourage you to look at.  Honestly I would have spent more time dissecting it as the dreadful legislative work that it is except that I saw little point once Grand Ayatollah Bashir al-Najafi came out and more or less trashed it, making me believe it has to be dead.  How can you pass something purported to give the Shi'a the right to live by Islamic rules that the Islamic rulemakers themselves describe as bad? 

Suffice it to say for now then that however one feels about the codification of shari'a, nothing is a better metaphor for the sad and slow intellectual decline of the Middle East than that in the lands of the great codifiers Ahmed Cevdet and Abdul Razzaq al-Sanhuri, legislation like this is what we have devolved to. The shame of it.

HAH

As an addendum to the last post, I completely forgot to mention Bangladesh, which in some ways is the most ironic.  It has recently moved to ban the Islamist JI, a group whose central plank in their political platform (or at least one of whose central planks) is the introduction of a blasphemy law.  So you'd think that the government, resisting this group, indeed seeking to ban it, would likewise resist blasphemy prosecutions. 

Not so, for the law currently bans the "hurting of religious sentiments," and bloggers have been arrested for blasphemy on this basis.  (This law is a 19th century relic of colonialism, the Indians have it too, and just recently used it to ban a book called The Hindus.  As I noted in a previous post, lots of these highly criticized laws assumed to be the product of Islamist fanatics are in fact the creation of the colonizers. Damn English.)   Though, to be fair, I said in Egypt the Islamists were no worse than the current regime as concerns blasphemy prosecution, which remains true. But in Bangladesh, the Islamists are worse.  They want the bloggers hung.  The government merely approved the idea of the maximum punishment extended to fourteen years. Let freedom ring!

Also, I'm on Twitter now, as the sidebar attests. I'll be on Facebook very shortly.  Follow me, soon all my regular writings will be tweeted out.  

HAH 

There seems to be some sort of broad, and broadly inaccurate, belief that somehow the obsessions with blasphemy throughout the Islamic world are the product of Islamism.  Hence, the theory seemed to run, once Morsi was removed in Egypt via coup, there would be a new birth of religious freedom.

In fact, as the cases of Amr Abdullah and Karam Saber demonstrate,  prosecutions for failing to be sufficiently orthodox in one's belief are alive and well in Egypt even as the Brotherhood is hunted down and systematically killed. (529 of them sentenced to death in a day? Are you kidding me?)  Abdullah was arrested and sentenced to five years in a prison labor camp for being a Shi'ite--the crime is actually called "insulting the Companions" --and Karam Saber wrote a series of short stories, entitling his collection "Where is God?"  I read them, didn't find them at all blasphemous, though decidedly secular. However, the Azhar and the Beni Suef Diocese found them quite blasphemous, and declared them insulting and artistically meritless, which of course must mean not only do I not have any artistic taste (for who am I relative to the wise censors of the Coptic Church authorities and the Azharites)but their author deserves five years in prison.  Then there's the leading role the Azhar is currently playing in seeking to ban the movie Noah. Which actually bothers me less, mainly because I figure Russell Crowe can take care of himself much better than poor, besieged Amr Abdullah and Karam Saber can. 

Turn to Malaysia, another state that makes a practice of sentencing Islamists to death on dubious charges, and the issue remains whether or not Christians can refer to God as "Allah".  Currently there is a ban on that. This is really helpful to those of us in the American Muslim community who keep insisting that the term "Allah" just means "God", and in fact was the word Christians and Jews used for "God" before the Qur'an.  All some crackpot Tennessee legislator has to do is pull up a newspaper and start quoting the Malaysians insisting Allah isn't God and there goes my rather robust intellectual position. 

So the point is, blasphemy is alive and well in the Islamic world, and quite often, practiced not only by Islamists (though they practice it too) but even more remarkably and forcefully in many instances by their supposed enemies.  If someone can discern any sort of movement in the Egyptian courts away from blasphemy prosecutions in the post Morsi era, they are seeing things I can't.  It's not "Brotherhood lite" any more than Obama's drone policy is "Bush lite."  It's just "Brotherhood."  I'd say the same for Malaysia, though of course the UMNO never lost power there, and I don't read the language well, so I cannot judge the progress of the court system with any level of sophistication or nuance. 

I've always found First Amendment absolutism a little extreme in the United States--it always struck me as perhaps an American luxury that could not be afforded elsewhere.  Why risk the social stability of an entire state on the fact that some loon wants to burn a Qur'an (or a Bible) or post an image of the Prophet depicted as a pig (or Jesus or Buddha). Is the right to be an ass that important? Does a man have to hear about or see a sign about how God loves dead US soldiers because of American support for gay rights while he seeks to bear his boy in peace?  Really?

But of course the problem is that all too often on the other side you end up as Egypt is--pure and unadulterated thought control where any idea that lies beyond the narrow confines of long accepted orthodoxy is blasphemous, and religious discourse is thereby rendered sclerotic and positively tiresome to anyone seeking even mild intellectual engagement.  And there is no real choice as between those two alternatives.

As for the destabilizing loonies?  Probably easiest to ostracize and harass them out of existence.  It works okay for the Westboros, who seem to be in trouble, and for Terry Jones who can say he was  arrested for wanting to burn Qur'ans, but I'm sorry it seems to me a better world when folks are free to think what they want but are absolutely not allowed to be driving around armed and carrying literally 3000 books of any kind soaked in kerosene in a pickup truck on their way to a public park to start a fire.  and of course in the Islamic world this isn't our problem in any event when it comes to prosecutions of provocateurs because people this extreme wouldn't get to court.  There isn't someone dumb enough to burn a Qur'an in public, and even if there was, he'd be dead, and the police would never "find" the perpetrators.  If that happens for honor killers, it will certainly happen for Qur'an burners. So we might as well get our legal and judicial system at least a little more accustomed to a little more openness in our religious discourse, if we are to have any hope of advancing it.

HAH

Wandering as I was through various Iraqi regulations for a variety of purposes, all professional of course in the end, I came across these still effective regulations respecting gender change under Iraqi law. I could not resist but translate them.

For context, these regulations date to 2002, and specifically November of 2002, when Saddam was in control and the threat of a US invasion was already imminent.  I do not think that threat particularly significant, certainly I do not think it in any way related to the promulgation of these regulations, but that is the broader geopolitical context.

Rather, what I suspect is that the numbers of Iraqis who sought to change their gender was significant enough to garner the interest of the Health Ministry. Yet Iraq fundamentally identified itself as an Arab country to its deepest core in November of 2002 (even my Kurdish brothers and sisters would not so much deny that self identification as decry it, with some justifications). Moreover, it was among the most steeped in machismo of the Arab countries.  We are Iraqis, we drink our whiskey neat, we smoke our tobacco unfiltered and we fuck without condoms, the mantra goes, though usually said outside of the company of women.  (I still remember the look on my good friend the kind and gentle Dr. Majid saw my other kind and gentle friend Kimberli pour Diet Coke on her Johnny Walker Black. She might as well have peed in it.)  What could be more macho than all of this? And yes, it is a Muslim country too, though there are other Muslim countries less driven by this hypermasculine sense than Iraq. I played an entire 15 point set of volleyball in Malang, Indonesia once with a group of drag queens (they needed a sixth, I wanted to play. We won, for the record, wasted the other six drag queens 15-4.) In Iraq, the whole lot of them would have had the crap beaten out of them along with me for playing with them well before the set ended.

So here you have this collision of social need and social taboo. And the Health Ministry left to navigate it, necessarily relying on "science" as some sort of "objective" basis to deal with the problem. Because, you see, once it is "scientific", it is no longer normative.  Or so the theory goes. You be the judge, my editorializing limited to the italics.

HAH

-------------------------------------------

Based on the articles 1 and 105 of the rules of the Law of Public Health, No. 89 of 1981,

[Article 1]

No notation as to Article 1, but I will assume it is that below since Article 2 follows it. 

A specialized committee was formed in [each] public hospital exclusively in each health department, and two sections in Saddam City and Yarmouk tasked with studying the need to correct the gender from those affected or those in their custody under 18 years of age [whose members have] the following specializations:

This was issued in 2002, hence the reference to Saddam City, that which would be called Sadr City now. Even in 2002, it would have been known as Revolution City rather than Saddam City, its largely Shi’a underclass residents never would have referred to their home as relating in any way to Saddam Hussein, but officially, it was Saddam City.  Yet we digress. Article 1 of the law in question merely guarantees good physical and mental health to Iraqis, and Article 105 authorizes regulations in furtherance of the Law. So these regulations were not so much demanded as, at best, authorized.

Note the term. “Correct” the gender, not “change” it.  It's a matter of getting the thing right, "scientifically."

1. Injury to the urine pathway

2. Obstetrics and gynecology

3. Mental health

4. Cellular genetics

5. Legal representative whose task is direction and understanding of applications of legal consequences to the change and supporting the committee in legal matters as to this.

This fifth sounds like the Ba’athist overseer, making sure the committee does not go too far in its regulations.  Still, note that mental health and injury to the urethra play a role in gender change. I read this as an attempt to permit gender change without acknowledging some sort of broad right to do so.

Article 2

An applicant must present a medical report from a medical specialist in the operation, which includes a scientific opinion of the type of gender correction in a detailed fashion.

Interesting, I think.  Gender change needs to be “scientific” and recommended by a medical specialist.

Article 3

An application must submit to the following inspections and present the findings to the committee referenced in Article 1 of these regulations.

 i. Psychological evaluation

ii. Phenotype inspection of exterior reproductive organs.

iii. Ultraviolet or similar, such as MRI, inspection of interior reproductive organs, and a specification of the type of reproductive glands.

Forgive me, but I am a lawyer, not a doctor. I am not sure I know what this means medically.

iv. Inspection of the following hormones

And the presence among men and women differs in the pituitary gland

a the activity of the sex gland FSH

b LH

c Male hormone testerone

d Female hormone progesterone

e Estrogen

The result of the identification of hormones

f. Hydroxylose 21

Article 4

If it is confirmed after the psychological and phenotype evaluation that the condition is the result of confusion in gender identification TRANSEXUALISM [this word appears in allcaps in the original, no edition here] then the afflicted is transferred to the initial psychological medical committee and then to secondary psychological committee. [Lots of committees, but not unusual in the case of Iraq. Still, two layers of appeals to ensure the "correct" result is reached, as in legal questions.] In the event of their agreement on the operation of correcting the gender, the afflicted is subject to the treatment and rehabilitation program for a period determined by the committee to accommodate the correction.

[Technically the word for “accommodate” is “coexist”. The idea being to get the person used to the fact that they will be changing their gender.]

Article 5

The operation may take place in a public or private hospital based on the desire of the applicant or those caring for him after the period of rehabilitation set forth by the committee.

Article 6

The hospital administration and its surgeons are responsible for the operation to correct gender that conflicts with the rules of the law and these regulations.

[This is important.  You can only “correct” gender if done in accordance with these legal provisions and if you fail to do so, consequences attach. Needless to say, in Saddamist Iraq, these consequences are not minor.]

Article 7

The health department shall inform the relevant drafting board and the civil status board of the correction in gender.

[These are obviously necessary even in the United States at this point.  Women are not drafted, and same sex marriage is yet to be universally permitted, making gender references necessary in civil status documentation and to any military selective service board.  Though given how many wars Saddam had fought by 2002, and given the imminence of a second war against the United States, I wonder how many men would give up their penises to avoid being drafted into another war.  Probably not many, though who knows . . . . ]

 Article 8

These regulations are effective from the date of their issuance in the Official Gazette

 

Umaid Madhat Mubarak

Health Minister

 

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.

HAH






 

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.

HAH

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 its idealist conception but as it has been articulated through the work of medieval scholars producing the classical fiqh—and I have described that historic work (the classical fiqh, not the shari'a as a concept, to emphasize the matter) 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.

The irony, the irony.

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. 

HAH

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.  

HAH