I recently returned from Iraq supposedly on paternity leave but in fact on leave attempting to fight for time with my kid among an assortment of grandparents (completely understandable), uncles and aunts (fine), cousins and spouses of cousins (getting a little annoying) and then wives of the brothers of a cousin's wife (who the hell are you and why won't you go away).  This left me with some spare time, which I used to begin some work on Iraqi tribal law.

The work is in its relative infancy, and there is no particular need to describe it in any great detail here and now.  But one thing that struck me, as I was attending my very first fasl in person, effectively a tribal resolution of a dispute which is usually criminal, and tortlike, in nature, was the role of the Banner of Abbas (Standard of Abbas?  Staff of Abbas?  Raya not alam, so an archaic and romantic word for flag basically is what I'm going for) at the end of the resolution.

So leaving all else aside and skipping to the end (you'll have read my future work if you want to know the details of tribal resolution), when the tribes finally reach on an agreement on precisely what the compensation is going to be for a particular harm done to one of their own by one of the rival tribes, what happens is each side ties a piece of cloth to a walking cane, referred to as the Banner of Abbas, and the deal is sealed. To break the deal, as was done previously in this case I witnessed, is to render the blood of the sealbreaker lawful for the taking.  That doesn't mean they're going to kill him, they didn't here, they asked for another fasl and demanded money and that the breaker and his father sell their home and move further away, but it's an extremely serious affair.  It resulted in serious money and effective part exile here.

So why is it the Banner of Abbas? For the unaware (white people, Sunnis, basically The Man), Abbas is not the uncle of the Prophet, as kids, we Shi'a barely know that guy exists.  He's Imam Hussein's half brother, son of Imam Ali, who died in Kerbala.  Legend has it he was carrying the Banner of the Prophet, which the Prophet had given to Hamza, then Hamza had died and the Prophet took it back and gave it to Imam Ali, who gave it to Imam Hassan, who gave it to Imam Hussein, who gave it to Abbas, and Abbas died with it in his hands on the barren sands of Kerbala, hence it being the Banner of Abbas.  (There are problems with this latter part of the story.  If Abbas died in battle and was one of the greatest warriors on Imam Hussein's side fighting in the battle of Kerbala, what's he doing carrying around a flag?  I asked, and was told he was such a great warrior, he could fight with a sword in one hand and a banner in the other better than anyone else could with just a sword.  Of course, that's not the relevant question.  The question is whether Abbas could fight better with a banner occupying his left hand or, say, nothing, or a shield, or something useful in it instead.  After all, Usain Bolt doesn't go around sprinting with a 10 pound backpack on his back because he's still faster than other people when he does.  Plus doesn't Abbas lose his right hand in the battle. So is he holding a flag and a sword in his left hand then?  Why? Is there no safe place to leave the flag?  But these are questions you don't ask among Iraqi tribes from Amara, so I let it go.  Banner of Abbas it is.)

In any event, you swear the deal on the Banner of Abbas, and to break it is to court serious discord and to risk your life.  Hence the cloths are wrapped around in earnestness and handed to a descendant of the Prophet, a sayyid, who wearing the black turbans only sayyids can (you're better off with a Crip tattoo in Blood territory than wandering around the south of Iraq with a black turban if you're not a sayyid), solemnly pronounces the deal sealed.  

Of course, as a Realist, you can be somewhat skeptical of all of this. First, that's a dude's walking crane, that's not the Banner of Abbas, he probably bought it for ten bucks a day before.  Second, those are random white kerchiefs they're tying onto it, they aren't the Prophet's flag.  What the heck is wrong with you people, one might ask?  You are finalizing a deal, you aren't refighting the battle of Kerbala.

Yet formalisms have their place, and perhaps none better than in the law of contract, as well as accord and satisfaction, which is more or less what this is, when a deal is finalized.  For the essential problem that lies in the contract is that we want, indeed in the common law, expect, vigorous negotiations with no constraints prior to the finalization of the deal.  One can always back out, one does not have a good faith obligation to continue negotiations, and the parties are given maximum opportunity to use whatever leverage they have to strike whatever deal they like.  The world is better, the classical theory runs, when the parties are left to decide their own interests as they see fit.   

But, of course, contracts don't work unless, once struck, they are binding.  Where a moment earlier to negotiate a better price is sharp bargaining, perhaps with hard elbows, to do so a moment later is to hint at breach. Where contracts and deals contain a moral element (as they generally do outside of the law and economics hegemony of the American legal academy), it is to court accusations of perfidy to do that.  So the more that line gets blurred as to when the contract is formed, the harder it is to separate the breacher from the sharp negotiator.

Plainly, the Realists didn't care. The Uniform Commercial Code doesn't concern itself with when the contract is formed, only that it is, however it is, even if you can't find the offer and the acceptance, and it dismisses the ancient formalities for creating contract formation, the medieval seal, as being only so much voodoo.  Even signatures aren't taken particularly seriously, whatever authenticates the document is good enough.

Yet of course the Realists weren't working among traditional tribes whose capacity for violence is significant and whose resort to it without state sanction is frequent.  To adopt such a rule here would be to court significant danger, as debates devolved into who agreed to what and when they agreed to it. Better yet to seal it, better to engage in formalism, to play the voodoo game, to pretend that somehow some guy's walking stick is the Banner of Abbas, and to break a pact signed on it is to earn the anger of the Moon of the House of Hashim, the mighty hero who could wield a sword with one hand and hold up the Standard of the Prophet in the other.  The stories have their uses.

HAH        

I was reading last night through the leading commentary on Iraq's Personal Status Law, written decades ago by Dr. Ahmed Al Kubaisi in connection with an upcoming casebook on Islamic Law that I am coauthoring with Mark Cammack of Southwestern Law School.  Therein, I found a most fascinating passage that I think reflects particular biases that are relevant in contemporary American discourse, specifically on the question of same sex marriage.

In the passage, Kubaisi is objecting to a provision of Iraq's Personal Status Code that grants to the judge the power to permit or deny a multiple marriage based on specified crtieria.  Specifically, Kubaisi says:

Then many families will resent the judiciary interfering in their most private of affairs.  Perhaps the wife has a problem that leads the husband to take another wife.  Yet he is fair, and capable of supporting more than one.  But he would disdain the fact that he or his wife would become the subject of inspection or investigation.  So he accepts deprivation and oppression of his self to remain with his sole wife without purpose or profit, so induced rather than to go to the court and to disclose the secrets of his house.  Hence the limitation of mulitple [marriages] in this manner or another results in interference of the judiciary in the right to contract, and the destruction of the human will of the man and the woman alike.
 

Now there is some implicit sexism in some of this, and I will return to that shortly, but I want to leave it aside for now, for the passage could well stand without it.  For now, render the example that of a woman who wishes to take a second husband if you like.  The point here is that Dr. Kubaisi is outraged by the idea that the state would dare to tell consenting adults who wish to form a multiple union that they are not permitted to do so unless they undertake some form of rigorous inspection.  It is, to Dr. Kubaisi, a state restriction of a basic human freedom.

The connection to contemporary American debate is obvious enough.  Opponents of same sex marriage have seized upon this, but in reverse, given the very different American biases.    Aha, say Lindsey Graham and Rick Santorum.  So you say that same sex marriage must be permitted because to do otherwise would restrict the rights of loving and consenting adults?  Well what about plural marriage then?  Why are we restricting the rights of three consenting adults to do what they will?  What can justify such a thing? 

Let me pause for a moment and leave aside other comparisons made by same sex marriage opponents to bestiality and to child molestation, for which distinctions of category are easy, and to which objection as comparison to my mind justifiably takes the form of outrage.  Human beings can love animals, and vice versa.  The love isn't comparable to the love two humans have for one another I would strongly maintain.  And once we move into the rape of children, the matter devolves into offensive and despicable absurdity.

But not so with polygamy.  I don't imagine Dr. Kubaisi would disagree with Lindsey Graham, he'd say of course three people who love each other should be able to form a union together.  Tell him same sex marriage then, and he'll probably be about as flabbergasted as supporters of same sex marriage are when trying to distinguish polygamy.  Usually, what emerges among American liberals is the reverse--a reflexive bias against polygamy that is more stated than defended. 

Can you believe what Santorum said?  He said polygamy is the same as same sex marriage! How offensive to homosexuals!  Or Jon Stewart deriding this as being a "slippery slope argument" which ends in bestiality.  All of this is based on an unspoken presumption, that somehow something is less legitimate about plural marriage than same sex marriage, and then less legitimate still are men and horses having sex.  Hence, the "slope," meaning first they ban M-1 tanks, then they ban assault weapons, then they ban steak knives and we can't eat steak anymore.  Each step follows from the last.  Reverse the presumption, and the result is quite different. Replace the word "homosexuals" with the word "polygamists" in the first sentence of this paragraph, and I am sure you have Dr. Kubaisi's view (i.e. comparison of the two is offensive to the polygamists, not the homosexuals).
 
For my own part, it's hard to see why one or the other is any greater or lesser an expression of human love, perhaps because I have my own cultural biases.  Like Dr. Kubaisi, I am a Muslim and an Iraqi and I have seen multiple unions, though admittedly in Iraq as a cultural matter there is a social stigma attached to them and they are deemed rather vulgar if legal, as marrying your first cousin would be in the United States.  Like Rachel Maddow, I'm an American, and I've seen those loving unions too.  I'm not at all interested in participating in either form of union myself, but I do wonder why we cannot tolerate both in our midst.  When I hear American liberals therefore assault multiple marriage and defend gay marriage (and assault those who equate them), what I hear is a defense of some forms of bigotry, and an well articulated attack on other forms.  As in, we're allowed to hate weirdos, but gays aren't weirdos, only polygamists are.  And stop calling homosexuals "queer", that's offensive.  It makes them sound like they're weird.  They're not.  It's the polygamists who are weird. All rather confounding to me as an expression of tolerance because of the unjustified limitations it imposes.

Having said that, some qualifications are in order.  First, the sexism.  I am certain that the late Dr. Kubaisi would feel quite differently about the freedom of contract as concerns multiple marriage if it was a woman who sought to marry two men.  I imagine that would be no less offensive to his sensibilities than same sex marriage, perhaps even more so.  And yet any distinction he makes based on the nature of men and women (I'm sure it would come down to that) could easily lead one to wonder precisely how strong Dr. Kubaisi's commitment to the "human freedoms" of men and women actually is. 

In any event, here we do have an important categorical distinction that is based on sensible moral differentiation.  We believe in equality of the genders, we do not believe in gender specific legislation, and hence we can immediately dismiss as not being remotely consistent with core American constitutional principles any sort of multiple marriage that is not equally granted to men and women.  As Mitt Romney says, what is sauce for the goose is sauce for the gander.  (If I might be permitted an aside, I barely understand this reference.  What is gander sauce?  And how does one even know the gender of the fowl they are consuming such they could even attempt a different sauce based on it? Very confusing.)

Connected to this, one might be able to argue that the ban on polygamy arises because of public interest concerns respecting the rights of women.  That is to say, even if we were to write a gender neutral multiple marriage law, the reality is that overwhelmingly, the arrangements will involve one man, with several women.  When we consider this, and its longer term social implications, we must give pause.  I'll admit that for a long time, until somewhat recently, I've held to this view. And to some extent I continue to do so in places like the Middle East, where the state is weak and the position of women more vulnerable.  I simply don't believe that many first wives in that situation consent to the second marriage, but they feel powerless to do anything, legal rights to deny or no.  Women might have influence to block the second marriage, in fact often they do, but because of social stigmas against polygamy, described above, or because their own male family members will intercede on their behalf, not because of a court requirement.  In this environment, much danger lurks in permissibility and it concerns me greatly, so much so I'd rather see no polygamy than tolerate consensual forms.

I'm not sure, however, that in the United States, this is necessarily a basis to prevent gender neutral consensual multiple marriage if we're going to start looking at these things as vindicating core principles of equality, as we do with same sex marriage.  Surely we can do other things to protect women that would be, to use the Supreme Court's phrasing, more "narrowly tailored" to advance the compelling state interest of protecting women from mistreatment or abuse than to prevent all multiple marriages.  I simply cannot see how one can deny, say, a third spouse a right to see a first spouse on the deathbed in the hospital because we are worried about other women in other unions being mistreated.  Or I no longer see it that way I suppose.  Or perhaps softer yet, can we at least have a conversation about it?

A final distinction is one of administrability.  Surely there must be limits on the numbers of people in a marital union or the entire matter will devolve into farce.  Surely some people deserve hospital rights that others don't and if one declares their entire village of 600 to be one big marital union, the system can no longer be administered because we cannot grant special hospital privileges to 600 people.  One could deal with this partly through a clear standards on what we mean by marriage involving a shared life together. One cannot really be having a shared life with that many other people, many of whom they may never even have seen or met or know their names.  But bright line rules are helpful, perhaps vital.

Again, however, there's no reason that two is a sensible bright line, it seems quite self evident that families share their lives together with more than two people in them.  Absurd to suggest to anyone in a family of five that they only love one or two of their fellow immediate family members.  So I suggest five members of a multiple marriage as presumptively valid, and perhaps 10 if shared life can be demonstrated. Hah, you say, five you derive from the Islamic rules permitting a man four wives, you've just adapted it to modernity.  True, I will concede, but pray tell, where does your number of two come from?

I suppose in the end I don't dispute that values in modern American society are "heteronormative" as it were.  But they are also "Christionormative" as well, and it's not clear to me why we can't talk at least about that too.

HAH

I was reading my Arabic translation of Rumi’s Mathanwi over the weekend. (Admittedly, it is originally in Farsi, which should mean that English would do quite as well as Arabic, but for me, all respect to the Reynold Nicholson translation which I cannot judge not knowing Farsi, it’s not.  Arabic is just a better language for poetry, with its multiplicity of overlapping words reflecting shadows and subtleties of meaning, even as English is a better word for law, with its clarity and straightforwardness.)  Anyway, the whole thing is a series of rhyming couplets more or less, not really tied into some sort of entirely coherent narrative, though it does have recurring themes, one of which is the place of reason and knowledge, which Rumi quite obviously thinks of as having its limitations, in a broader Islamic world at the time that was far more enamored of reason as the means to know God and God’s Will than Rumi was.  Hence, a telling passage is one that reads as follows:

Reason will say, as Gabriel has, “O Ahmad, if I take one step further, surely I will burn.”

So leave me, and advance.  This is my limit—advance, captain of my soul, without me.

(Remember this is Farsi translated to Arabic translated to English so apologies for stylistic awkwardness).  Reason to faith, as the angel Gabriel to the Prophet Muhammad (Ahmad is a reference to the Prophet Muhammad).  Once the teacher, the one who guided and led and transmitted the Revelation, now the one who can go no further, who has to leave Ahmed to advance on his own, for reason brought him so far, and the rest is not for the angels, but for men.  I always found something rather beautiful in this passage, something resembling Kierkegaard’s Leap, though not precisely the same (reason, after all, begins the inquiry which gets Muhammad far enough to advance on his own). 

Yet I thought this was worth mentioning in this morning’s post, because it is quite evident that orthodox Usuli Shi’ism as it is taught in the seminaries of Najaf and Qum alike would read a passage like this quite differently. (If they bothered to read it at all. I get no sense that anyone in Najaf thinks or cares about Rumi.  He is a figure of some pride in Iran, however, though probably not Qom.  Still, even Ahmadinijad sings his praises, so who knows. I don’t spend my time in these places asking them about Sufi saints, I figure it’s not likely to get me much by way of useful information.) In contemporary Shi’i dogmatic renditions, reason likewise has a limited role, but quite a different one, and the angel leaving the Prophet would be a metaphor to invoke a very different type of departure demanded of each believer. 

Reason for the jurists, essentially, brings one to Islam, and specifically Shi’i Islam.  If you sit down and think about it, the theory runs, if you just apply neutral reason, free of bias and uncontaminated by circumstance, you will see that there must be a God, that Islam is the religion of his Revelation, and that Shi’ism is the correct, true path within Islam.  Leave aside the politicized rhetoric about how our Sunnis are our brothers, nay, extensions of ourselves, and get clerics (not the highest jurists, hard to get them to speak with such specificity for very long) to start discussing specifically theology, and this becomes very obvious, very quickly.  Why does the West think we Muslims are all terrorists? They are equating Islam with its deviant branches, let them look to Shi’ism and they will be disabused of this.  And so forth.

Now I do find this ironic on so many levels.  This uncontaminated reason is itself contaminated, borrowed quite extensively from Aristotle, for one thing.  But I’m not a jurist, just an academic, so no reason to dwell on that.  Anyway, once you get this far as a believer, reason generally disappears under the theory.  That is to say, you accept Revelation, you accept Shi’ism, you accept the role of the jurists in expounding doctrine, and here, you really have to drop reason.  Now you more or less have to listen to what the jurist has to say.  Not because he can deploy reason better than you to expound on legal rules—reason is in theory the fourth source of law in Shi’i Islam, but it is a source more honored in the breach than the observance. 

So you don’t trust the jurist because he can reason better than you can. You trust him because he has studied where you haven’t.  He has learned the source material, and the means and methods, and he can deploy those methods even as a doctor can deploy her methods to remove a tumor from your body.  Not because of reason, but because they know things you don’t.  I don’t mean they are claiming to be nothing more than efficient automatons, obviously you have to use considerable intelligence to unearth a legal rule, even as, say, a navigator must use intelligence to find their way with a sexton across the ocean based on the positions of the stars and nobody wants an idiot removing a malignant tumor.  It takes skill and a sharp mind of course.  It doesn’t take open ended “reason.”  Your intelligence is deployed not to construct a legal rule when the material seems to offer two potential answers, your intelligence is deployed to find the one proper and correct rule based on the methods and means that are authorized.  And then you follow that rule even if it seems “unreasonable”.  Just as you consent to a dude with a white coat saying they are going to split your belly open and take something out, not because it sounds reasonable, but because you know the doctor understands things you don’t.  (The dominant metaphor I’ve heard in Najaf and Qum alike delivered to us layfolk is always the doctor.)  So even as “Gabriel” leaves “Ahmad” because to continue to insist on reason would land Gabriel in the fire, so reason must submit to the protectors of the doctrine who will tell you what’s best. 

Lots of ways to read Rumi I suppose, though I’ll stick with mine.  Makes something magnificent of Faith, I think.

 

HAH

I have been derelict in posting, I realize, with more than two months passing since my last post. My wife and I had our first child about 40 days ago, and it's been busy, hence the delay.  Should be better henceforth, though perhaps not like the childless days of yore, when I could post several times in a day if I wanted.

In any event, last night I was flipping through the Arabic channels and happened upon Sheikh Yusuf Qaradawi on Al Jazeera and thought I'd give it a listen.  I do this often enough, and as usual he was his maddeningly vague self, pretending to take strong positions while making it nearly impossible to understand the categories he had managed to create while doing so. Normally I tend to ignore this, as it is hardly worth writing on.  But I've been away, and last night was a little more interesting than most if not exactly newsworthy, and so I thought the matter was ripe for a few observations.

First, I really wish our reporters in the Arab and Muslim world would stop treating jurists and clerics with kid gloves, acting so deferential around them in a manner that they would not before a head of state, for example.  I do not mean engaging in a debate on first principles--if you are watching Yusuf Qaradawi you aren't doing so to hear him respond to someone who claims there is no God or that Muhammad was not the Apostle, any more than you watch the President to hear a defense of constitutional government--but when he takes a position, the reporter point out previous inconsistencies, ask why it is that some jurists seem to disagree, suggest it is entirely unworkable, something other than just moving to the next question.  I get that just about everyone seems to have a satellite tv station these days and so I get that when Kurdsat interviews Jalal Talabani, or Furat interviews Ammar Al Hakim, they are going to be more political ad than they are interview, but this is Al Jazeera, not some wing of some political party. It is the largest and most popular satellite station in the Arab world, and they have decent journalists.  Ask some questions.  An example from last night expounded:

 Interviewer: Honorable Sheikh [that sounds deferential, but really it's more of an honorific, like "Mr. President"], it is said that the definition of a modern state is one that holds a monopoly on violence, and our ulema have said over the ages that fitna and civil war are sinful and worse than decades of oppression.  What is your opinion then of armed opposition in Muslim states like Syria.

I am paraphrasing, but that was more or less the question, and actually I like it.  Never thought I'd see Ibn Taymiyya and Max Weber used in the same question but it's nice, it works here.

Qaradawi:  The state holds a monopoly on violence why? So that it can pursue criminals, and bandits!  So that it can make people safe!  But if it uses that violence to oppress the people, to prevent them from speaking out, so that they are afraid to say anything, because someone from the security services might be watching, if it uses violence to kill innocent people, then of course armed resistance becomes necessary because Islam demands justice and fairness, and the establishment of the scales of justice.

Then we move on, though I could think of about a dozen follow ups to this one. Here are a few:

Doesn't every armed resistance group suggest that it is fighting a regime that uses violence to oppress its people?  So how do we distinguish the just state fighting bandits and terrorists and seeking to provide security from the one oppressing its people?  What are the standards?  In which of the following countries is armed resistance permissible and why? Iraq Iran Egypt Qatar Morocco Jordan.  Are you disclaiming Ibn Taymiyya's theory that sixty years of unjust rule is better than a day of fitna?  Hasn't there been quite a bit of fitna in Syria now?  Didn't you just quote him in the context of Bahrain not long ago?

Alas, but we're stuck with these ill defined abstractions that pass for ideas until someone decides to push these guys, and these guys feel the need to get out into particular fora and get pushed.

Second,  I found it interesting that though the interviewer had no questions really on economics, Qaradawi kept returning to it as a theme.  Hence, for example, on a question about politics and Islamist movements, he delved into how the goal of "American capitalism" is about trying to corner the entire market for onesself to make millions and billions, while in Islam, it is about sharing, and cooperation to build and network and establish products and services that serve people.  On a question about different types of Islamism that exist, the diatribe ended up being somehow something about how in the US agriculture conglomerates "toss their seeds and their wheat" into the sea to prevent them from being sold at a cheap price, and Islam rejects this, it does not allow one to make money in this manner that robs the poor of their ability to buy bread.

To be clear, it's not interesting because it shows particularly much about economics, obviously it is simplistic nonsense hardly worth dissecting at length.  Most business owners I think would tell you that their efforts to increase market share are precisely about servicing the consumer, as there is no other way to do it.  That might not be true in many instances, and in many cases the whole market could fail entirely, though then the distinction between "Islam" and "capitalism" would need to be far more refined than whatever it is Qaradawi is saying it is. 

Nor is it interesting because it shows profound ignorance about economics.  It does, but there are Islamic economists who are more sophisticated than this many times over. Qaradawi's failure to understand economics cannot be fairly attributed to every single person who thinks in terms of Islamic economics in modernity.

Rather, it is interesting because it reveals a worldview, a stubborn and persistent one that has existed since Qutb and Sadr and Maududi began propounding it half a century ago--that Islam in its economic and social arrangements is more equitable, fairer, more cooperative and more attuned to the demands of social justice than, to borrow Qaradawi's words again, "American capitalism."  I'll only point out that so long as this remains the worldview, and is propounded by senior clerics even when not asked about it, on Arab wide satellite television, Islamic finance will continue to disappoint, as its methodology is hardly based on any of that, but instead on mimicking the methods of "American capitalism" while avoiding only its forms.

Third, it is surprising to me how much of mainstream Islamism continues to depend, as not a few forms of Marxism did before it, on the idea that when the proper society is established and put in place, all will be well because human beings will magically change from the selfish, wealth-maximizing, deceptive folks they are now to alms-giving, cooperative, sharing and honest people they will be under "true Islam."  Requring this presumption is usually a bad sign about the viability of a given set of ideas, because people don't change all that much all that quickly. 

So I don't really know what Qaradawi is talking about when he mentions selfish American capitalists dumping wheat in the ocean rather than giving it to the poor, as it makes no sense to me why a person who cares about profit and not a thing else would go through the time and expense of producing wheat, and then dumping it into the ocean.  They could have just grown tobacco, or hops, or leased the land to a local brothel (remember, I'm assuming amoral folks out for the best buck) instead of grown wheat to throw away.  I suppose if there was a farm subsidy for growing wheat, it's very possible, but that's not a problem of laissez faire capitalism, that's a demonstration of why the government shouldn't be intervening in markets.  

But I'll attempt to make sense out of all that he says and assume that the seeds he talks of being thrown into the ocean are patented, and that some bad evil corporation acting as only an "American capitalist" would, sells the seeds it can and destroys the rest even though it could just give them to poor Egyptian farmers.  This parallels the issue that arises with patented antivirals for HIV that arose a few years back and one can certainly see why poor Egyptian farmers would be upset.  And it has arisen I believe, though I'm not sure the seeds are actually destroyed, much less thrown into the ocean, but now I'm being a bit churlish I suppose.

Anyway, there is a problem, though it isn't really solved by just making the corporation give the seeds away at low prices.  They are going to argue that they spent a fortune developing these seeds and they do need to recoup their profits somehow.  Ignoring their patent is bad for future seed innovation.  You could still just grab their seeds and pass them out to the poor. You could grab the wheat that was to be thrown into the ocean and sell it.  Heck you could make them sell it at lower prices and start lashing them if they don't, as was done in the Mamluk era.  Or you could just raid their piggy bank, take all their money and pass it out to the poor and liquidate the bread selling/seed selling/wheat producing industries.  All of these forms of forced wealth transfer might make you feel good.  None solve your actual problem. Generally they make it worse.

But there are poor Egyptian farmers who could really use the seeds and those of us who care for the poor aren't willing to wash our hands of it, any more than we should be willing to ignore those desperately in need of HIV antivirals.  So give a few away?  Set up a program where some UN body gives some number away, exclusively to poor countries, exclusively to people who couldn't otherwise afford it?  I don't know the solution, let me say it's vastly improved with AIDS drugs, so there are paths. We can talk about it and give attention to it, we can call the corporation to task for not cooperating more, we can call international bodies to task for not caring more, there's much to criticize here and much to demand. 

What I don't think we can do is simply say that in Islam it would be better because in Islam everyone would know it is a sin to leave land fallow, or not to give away extra wheat when you have it, or to hold on to patented seeds, and so people would conduct themselves differently.  That seems to assume a certain selflessness on the part of people working in corporations in the true Islamic society, a concern for an Egyptian peasant that is as great as their concern for the Ivy League education of their own children.  I don't know any people like that. In the liberal law school professoriate among folks genuinely interested in the poor and more than willing to jump on any bandwagon that castigates Wall Street greed, I still don't know people who in their conduct put the needs of the poor above the need to cover their kids' college education tuition.  And I tend to think good economic policy tends to assume people will stay that way, and finds solution that don't depend on their changing fundamentally in order to create a better world.

There were other examples of this continuing problem in the talk--when the interviewer asked whether or not some of the Islamist candidates were justified in perhaps truth stretching in their ads because it was so commonly done that unless they did it, they'd surely lose, Qaradawi tells us this is only a problem in the West, with its lack of concern for truth, but true Islamic societies would consider adherence to truth as core virtrue and fail to depart from it.  This is naive.  Muslim brothers jailed for decades at their first real opportunity to taste power are going to find a way to justify an ad that takes maybe just a little bit of license if that's what they need to do to get power. And once you take that step, others come soon enough.  That's not to say one cannot regulate campaign ads, it is to say that the regulation cannot come on the basis of the assumption that declaring lying to be sinful is going to do very much to achieve it.

Anyway, that's enough for one Qaradawi interview.  Good to be back,

HAH 

The book is probably a year old by now, but as with academic book reviews generally, mine is delayed, and doesn't come out for a few months yet.  But my review, which points out considerable areas of strength and things I find foibles is here.  Overall really interesting consideration of exactly how the Mamluks managed to apply, manipulate, evaluate shari'a during the period they controlled Egypt. 

I also think it helps to put to rest some of the silly romanticism that often arises respecting the historic conduct of Islamic states.  If anything, I think Kristen was a little too soft on the Mamluks, as the review makes clear.  Their use of religious rules was designed to ensure existing social stratifications, and their official charged with "enjoining virtue and forbidding sin" was really nothing more than a glorified rent seeker, utterly despicable fellow I think.  Oh, and their treatment of religious minorities was "tolerant" only if your prevailing standard is the Inquisition. By any modern standard, they were appalling.  Not fair to judge earlier civilizations by modernity's values really, though it is important to bust up historical myths wherever they appear. 

Read the book.  No, first read the review. Then read the book.

HAH

I realize I have been derelict in my posts and that nearly two months have passed since my previous post. Incredible personal and professional obligations elsewhere have kept me occupied, unfortunately. (None bad, most quite good--all very time consuming). I should be a little better positioned now.

Last week I was at an Islamic Finance Conference in Sarajevo where I heard a very interesting comment from my friend, colleague and waterpipe smoking buddy Mehmet Asutay (you have drinking buddies, we have shisha buddies . . . .)  Professor Asutay is really a leading voice on some of the failures of Islamic finance to develop what he describes as a "moral economy" in his persuasive writing on the subject (see his SSRN page with his substantial scholarship here). 

One of the most interesting comments from him arose from recent findings from a study he led regarded expectations of the Muslim community on the conduct of Islamic banks.  When you ask them how they want the banks to behave, they say the bank should forgive more loans, it should foreclose less often, it should bear some of the losses when the borrower must bear them, it must be, overall, more concerned with the community, with morality and distributive justice and less obsessed with profit over all else.  Homo Islamicus, as Professor Asutay would describe it.  Then ask the consumer the return they want on their deposits from that Islamic bank, and it's perfectly clear--the same thing as conventional banks, and they'll pull their money if the returns are noticeably lower.  Homo economicus.

Now when he presented this really interesting finding, there were noticeable chuckles in the audience, from many, including myself.  It's easy to see why, the whole notion is preposterous.  Precisely where is the bank supposed to get the money from to pay those competitive rates if it's off forgiving loans and sharing losses?  The math clearly won't add up, the Muslim consumer is running a politician's budget--I'll you give you all this stuff and cut your taxes.  And then I'll yell and scream about how bad deficits are later.  All true, all salient if one wants to figure out how to fix an industry so many of us regard as flawed.

But on another level, just like the American voter, it's not clear that the Muslim consumer is herself the sole source of blame, as it's not like she's ever really been levelled with, talked to with some level of maturity.  If one looks at the early works on Islamic economics--MB Sadr, Maududi, Qutb--infected throughout the work is an insistence that Islamic economics is not only more socially just, but also that it is more efficient.  In an interest based economy, the theory goes, capital goes to enterprises that won't reap the best returns, because the lender doesn't care how successful the enterprise is given their fixed return.  Interest based economies, the theory runs, lead to vast disparities of wealth and thus result in productivity losses as the owners of the capital grow fat and lazy, and the workers surivive on subsistence and hardly develop entrepeneurial skills. And so on.  You read this, and it seems reasonable to think you can have it all--social justice and higher returns all at once.

Now of course before someone starts shouting at their computer screen I will admit that it would be absurd to suggest that any Islamic bank in the world actually buys into everything the earliest thinkers on the subject were saying, and in particular this quasi Marxist stuff on owners of capital and the like. (And to be clear, I'm not criticizing the early folks either they did not have the benefit of our hindsight).  But proponents and leaders in Islamic finance from Usmani to Chapra do make the simultaneous claim that Islamic finance can be more productive than conventional finance and at the same time that it is fairer, with obvious deviations on the fairness principle often being dismissed as compromises to necessity in an interest based world.  Hence both the self congratulation on avoiding the financial crisis, and the insistence that doing so was driven out of concerns for fairness (avoiding exploitative gain) and prudence (avoiding gambling).  (Completely wrong, as I've posted before). The conventional bank is thus not only riskier, but also less fair.  You can still have it all or would be able to if only our methods became more broadly accepted.  So goes the claim.

So is it a surprise to me when the Muslim consumer wants the same returns as a conventional bank, but a practice grounded in a moral economy and less obsessed with profit?  Not at all, it's what's been sold by the industry all too often.  A more honest approach would be to inform the Muslim consumer that at some level and to some extent, there is a zero sum game at work here.  Some methods of financings might prove more efficient than others, who knows, but at the end of the day, there's a tradeoff to be made.  Either the industry mimics conventional finance, as it does now, and offers the same return and subjects itself to the same risk exposure in the process, using only differences in form to achieve the result, or it actually does do something different, something actually concerned with social justice, or the development of a moral economy, or the redistribution of wealth. But if it does that, then the money has to come from somewhere, and that somewhere are going to be the depositors, who will have to live with lower returns.  That's the choice, it's the choice now, it was the choice when the practice started to bloom about 3-4 decades ago, and it will be the choice 3-4 decades hence given the economic realities of the globe.  So pick your poison, as the shisha guy tells us.  Rather sad when the guy selling me apple tobacco seems more direct and forthright than the guy trying to sell me an Islamic mortgage.

HAH

The other day as I was watching Sportscenter on ESPN (a guilty pleasure, I allow myself 20 minutes a week) I heard Herm Edwards say something quite interesting about the replacement referees that have caused such a fiasco in the National Football League.  The NFL as an institution, he suggested, and all involved in it--the striking officials, the recalcitrant league front office, the stubborn owners, the whining players, the hyperpartisan coaches--all had a responsibility to "protect the shield" and were failing to do so.

I'm not sure where the term "protect the shield" comes from, it sounds like it has something to do with a police force, but I like it.  Because in any system in which rules are going to be adjudicated, there needs to be a cover of legitimacy, authority, and finality in the adjudicatory process--a "shield", if you will, with some level of trust, almost faith, as to the methods that lie beneath.  The system depends on that trust, that faith.  It isn't inherently rational, it's almost what my colleague Jessie Allen describes as "legal magic" in a recent piece in the Denver University Law Review.  If you want to know if you got ten yards in football, you bring out magic sticks and tug on them, and they tell you.  That's ritual, it's not reason, you cannot possibly think the sticks measure anything with any reasonable level of precision.  It's not, to be clear, entirely divorced from reason, there is some predictability in the enterprise, but there's a great deal of trust as well--that hold that was called was indeed a hold, never mind the referee doesn't see it a good number of times, that offsides not called may not have been offsides, never mind that another referee on another day would have called it.  We close our eyes to the randomness, the arbitrariness, and trust in the ritual, believing even when we know it isn't entirely true neutral rules are being applied with some level of predictability and certainty, or at least something close enough to predictability and certainty to count.   

But when the trust is broken, the faith shaken, the system no longer stands.   That referees from the Lingerie Football League make bad calls more often than regular officials would in a professional football game is so obvious as not to be interesting.  But what they do that's worse is they break the trust.  Now every single time there's a unpenalized illegal hold, even one perhaps an ordinary referee would not necessarily have seen, it is pointed out to us.  Every time the referees huddle to discuss, when perhaps ordinary referees would have done it, it is emphasized. And even when the referees end up making the right call, there is screaming and shouting from coach and player alike.  Bill Belichick was apoplectic, seemingly genuinely so, after two calls that did not happen to be in his direction at the end of his game.  One was a noncalled pass interference, and the other a field goal ruled inside the uprights.  Both were correct, and yet this went relatively unemphasized, in a manner that almost surely would not have been the case had the referees been the normal ones.  Then it would have been "you know Cris, Bill's pretty upset, but the referees were right!" Cris:"Yup, two correct calls."  That's assuming the coach would have even been upset had his trust not been broken, his faith not shaken.  When you lose the authority, you lose control of the process, and chaos results.  Just look at Monday night.

Lotsa sports dude, you might be thinking, I thought this blog was about Islamic law. Right, so let's answer the question, what does all of this have to do with Islamic law?

Easy, in the Sunni Muslim world, they've been playing the game of Islamic law for the last eighty years with replacement refs.  And so no adjudicator can actually rule on anything without being accused of bias.  Of course there's bias and external influence, that's how law is made to the Legal Realist and a running theme of this blog.  Yet when the judge is authoritative, we at least pretend it isn't so.  Not the case when the judge is deemed false.  Hence the Taliban accuse Egypt of adopting Western, idolatrous family laws on divorce when they should stick to true Islam.  What did Egypt do?  It codified the rules of one Sunni school of thought, the Maliki, thereby replacing the rules of the other Sunni school, the Hanafi, that had ruled previously.  Under no reasonable conception of Sunni classical theory could that possibly be considered illegitimate let alone an idolatrous aping of the West.  Yet the Taliban said it, and frankly nobody knows who's right when they do, it's just a shouting match that leaves everyone confused.    The problem, in other words, isn't just that the refs get the calls wrong, though they frequently do, it's that they don't have any legitimacy.  The shield, the trust in the neutral adjudicator, is missing. 

Then, live long enough with replacement refs, and all of a sudden random people start deciding they're the refs, and some Yemeni runs off to Afghanistan puts a turban on his head and starts issuing what he thinks are religious edicts about near enemies and far enemies but which are more properly described as the incoherent anticolonial rantings of a lunatic.   To have a functioning system, you need, in other words, more than simply plausibilty.  You need a trusted referee, or it doesn't work.  And the fact is, Sunni Islam has no such thing, which is in many ways its biggest problem.

To be clear, I don't mean that if such refs existed, then the Muslim world would be liberal.  Shi'a jurists of Najaf for example, are trusted as real refs, no questioning is done as to their modes and methods of reasoning, no accusations of Western bias or obsessions with anticolonialism, they are no less affected by such influences in their interpretations than Sunnis, as I've pointed out many times elsewhere, but this is not seen, because the shield holds.  We believe it to be neutral even if rationally we know it cannot quite be entirely so.  And yet Shi'ism isn't liberalism, nor does it claim to be.  But at least, when you have a question, there is an answer, there is a channeling, there is a doctrinal system and an underlying methodology to address the matter. 

Sunnism has none of that, it's all replacement refs.  And seemingly will be for some time to come.

HAH

I heard an interesting report this morning by Leila Fadel on National Public Radio describing the Ansar al-Shari'a crazies in Libya who at least appear to endorse the killing of Ambassador Stevens as adhering to "the most literalist interpretations of Islam."  The two examples given were that they don't allow any public intermingling of the sexes anywhere and reject all Western influences.  I think that's the accurate quote, it is substantially correct, it was radio so cannot guarantee "literal" accuracy, as it were.

As to the claim the statement is making, it's wrong. Sorry, but flatly wrong.  For a prohibition on intermingling of the sexes in any context to be "literalist", it would mean that there is a Qur'anic verse or Prophetic statement out there indicating "Thou shalt not publicly intermingle with members of the opposite sex under any circumstances."  But there's not.  What there is, is a Prophetic statement that when a man and a woman are secluded together, Satan becomes the third.  And from this, one might be able to suggest that prohibiting intermingling is a means to cut off the possibility of such seclusion, and hence must be implemented in the truly virtuous society.  Whatever that is, it isn't "literalist."

And similarly, to be "literalist", a shunning of Western influences, whatever that means (do they use forks?  or toilets?  or wristwatches?), would require Revelation to declare "Thou shalt shun all influences from the West."  Which of course it does not, and could not, as nobody much thought of the West or post colonial influences on the House of Islam during the Prophet's lifetime--again one must take verses and utterances and analogize to reach such conclusions.  Nothing "literal" about it.

And of course Salafists are not the same as these Ansar types obviously, but they aren't literalist either.  It's not "literalist" to say that one must practice Islam as practiced by those in the two generations following the Prophet, as the Salafists do.  It requires a presumption, that the interpretations of those who existed in the generations immediately succeeding the Prophet are more genuine or more accurate than ours would be, reading the same text and interpreting it as we might.  It is an interpretive preference, but absolutely not a literal one.

Whenever the strictest, most austere and (in the case of the Ansar) the most violence prone are described as "literalist", it creates an assumption, not spoken but perfectly obvious, that the Qur'an and the Sunna are generally strict and austere and prone to violence, and that to the extent that there are "moderate" Muslims, it is because they have taken liberties with the text.  I see no particular need to confer a priori such high levels of legitimacy to the austere conservatives in such a skewed fashion.   They'll interpret verses, and my friend Abdullahi An Naim will interpret verses and we'll have our normative debate.  But nobody's a "literalist".  It's all religious construction of core text.

HAH

So I'm going to say something that might get me in some trouble with a few of my fellow Muslims, but nonetheless, needs to be said.

Yes this 14 minute Innocence of Muslims trailer is designed to provoke Muslims, yes it takes every lie and fabrication about Islam and the Holy Prophet (SAWA) that can be imagined and condenses it into a 14 minute video, yes it is hurtful and offensive, not to mention obscene and ridiculous. What so many Muslim authorities have pointed out over the past several days is true I do not dispute it.

But it's also a fourteen minute video shot by a guy whose name we don't know on a budget that doesn't really look like it could have been more than $50 involving no actors from the Actors Guild some of whom were apparently deceived, shown by no movie theater and posted on YouTube. 

To go on, the claim that it was shown at a theater in Hollywood does not seem credible, no theater claims as much. No actual full movie has appeared. If $5million was raised for this thing as was claimed I'm rather happy because $5 million was burned pretty badly if this is all the hatemongers could manage with it.  Its defenders are really on the lunatic fringe of US society--a guy who doesn't give his name, two other guys who claim to know him and distribute fliers against mosques at high schools and yet say the director cannot use his name because he'd be killed (but you're using your names.  And distributing flyers on the street near mosques. Go figure) and a Copt who has earned a vigorous denunciation from his own church in Cairo. 

As Muslims, we can't go on like this.  I don't mean we can't use violence like this when the Prophet is insulted, that's so obvious I don't see how any civilized person can dispute it and the overwhelming response from reputed clerics across the Muslim world has been to denounce the violence, of course, as a result.  Again, too obvious to even debate.

I mean we can't go on CARING about nonsense like this.  I'm happy the Southern Poverty Law Center follows the loons around and makes sure none are dangerous, we should support them financially and morally.  I'm perfectly happy to raise my voice when Huma Abedin is attacked by members of Congress and to say and do something, or to ask Hollywood to offer more positive portrayals of Islam and Muslims than it is doing.

But this is some idiot and his idiot buddies with a couple of bucks in their pockets filming a video and putting it up on Youtube.  We can't get sidetracked by this sort of thing, can't let it sting us or hurt us, have to realize the big big hyperconnected globalized world is going to have wackos in it, and in our times, they're going to be able to do this no matter what we think.  It's just the way it is in our times.    I won't insult my Prophet by imagining him so insecure that he'd rather have me take time out of my day to defend him against meretricious nonsense like this than doing what it is I do. 

Time not to obsess over it.  Time to move on.

HAH

My sporadic posts are due to my desire to get this bloody Iraq constitution book that has been the center of my professional existence for a couple of years now out of my hands and over to the publisher, but today, I could not help but comment. 

I'm sort of seeing this very interesting cycle when it comes to Iraq news since the US withdrawal that really bears mention.  The first part of it is a broadly held assumption, that the state cannot possibly survive in its current form without large numbers of American troops there to support it.   Hence as the US withdrawal neared, all my articles, and encyclopedia entries and manuscripts and even opeds that were still under edit, came back with an editor wondering if all of my thoughts might prove obsolete in X days, when the US withdraws from Iraq.  Honestly a number of pieces were held up for weeks out of certainty by one publisher or another that everything I write is about to be ripped apart by an imminent civil war once the US leaves. 

And, with that assumption, step one of the cycle begins.  Something happens, arrest warrant against Hashimi, attempt to dismiss the Finance Minister, whatever.  And the media crawls everywhere over it. This is it, it's over, the whole thing is coming apart, Bush's grand experiment falling to pieces, the theory runs.  Sectarian tensions are at an all time high, there's violence everywhere, Lebanon civil war about to hit Iraq, and so on. 

Then, step two, nothing.  I mean some things, complaints about bad electricity, or bad government, or a call for a conference on national reconciliation, or how about the fact that Maliki couldn't even fire his own Sunni Minister because the Sadrists wouldn't allow it, but beyond that, not much of anything.   So it goes unreported. Your average US reader tends to forget.

Then, another blow up is usually step three.   Which really is just step one all over again.  For example, provinces that are Sunni dominated demand autonomy, or something. Sectarian tension we are told returns to all time high.  No US troops we are told can save the day anymore. Civil war, we are told, is imminent. 

Then back to nothing.  And again when nothing, there's no report.  and so it repeats.

I noticed it this morning when three different colleagues came to my office and asked if this was it, whether Iraq was finally entering its civil war phase which has been imminent apparently for I don't know four years now (long period of imminence), because of the death sentence issued against Tariq Al Hashimi.  And what that might mean for the Iraq constitution.  My reaction, it's worth a footnote.

This past summer in Baghdad was the most normal I've seen it since 2004.  Stores open late, checkpoints reduced, fish restaurants on the Tigris chock full again, violence comparably low, and now talk of a breaking point? 

Why? Because of a death sentence of a guy who has now been out of the country for so long the only person even the New York Times could find to interview to denounce the sentence was a minor Sunni tribal leader?  Not Rafi Essawi, not Iyad Allawi, not Saleh Mutlaq, not the political leaders in Baghdad, but a random tribal leader?  Really?  It's a crisis when Obama does something and the highest profile Republican who denounces it is a state legislator from Iowa?  Run a Google news search on "Ayad Allawi" in English or Arabic and the recent news is of a press conference he gave before this whole thing came about, not this.  Iraqiya did denounce the verdict as "political" and a "deviation from justice" in a memo. Really, when you're fighting mad, you don't go off issuing memos describing things as "deviations", you get up on TV and start shouting.  Especially we Arabs, we do that even when there isn't a crisis.

To me, the more profound thing about the Hashimi death sentence which is really permanent exile since he is in Turkey and everyone knows the Turks won't turn him over, is how powerfully easy it is to sideline a political opponent through exile.  I realize the Shi'a almost universally think the man is guilty of terrorist acts even as Sunnis don't, but taking the Sunni story for a second, all Maliki had to do was effectively throw him out of the country, and fairly quickly they become irrelevant to the internal debate.  Nobody's paying attention anymore.  That's a disturbing lesson, one far more relevant to the current dealings in Iraq than another iteration of the "cycle".

I suppose the cycle is inevitable, to me progress is that there are these amusement park/playground things that run all day in Baghdad during religious holidays for kids that are crowded when years ago nobody hung out in such crowds, and I guess that's not news, it's kids riding a roller coaster. Hashimi's death sentence is, however, news.  But still, it is so terribly distorting.  If I acknowledge that the Prime Minister has taken actions that are disturbing to sideline opponents (if not this case, there are others), if I acknowledge a corrupt and very poorly functioning government that frustrates its citizens on a daily basis, if I acknowledge that sectarian tensions do exist, and that they are potentially destabilizing, and if I proclaim the broad need for dramatic economic redevelopment on a broad scale, and even if I say that all of this could cause serious problems if allowed to fester forever, can I ask that others maybe meet me one eighth of the way to admit that life in Iraq is not in a perpetual state of imminent widespread humanitarian slaughter, that there is sufficient capacity in the system for it to be handle at least modest crises that might erupt from time to time?

Perhaps too unrealistic.  Oh well.  I shall wait the next revolution of the imminent civil war merry go around I suppose . . .

HAH