Gay Marriage and the Shari'a; A Look at the Iraqi Personal Status Code
As I finish up writing a piece relating to the Iraq constitution for the ILSA Quarterly, I've had some occasion to look at the provisions of the Constitution concerning personal status law and had some thoughts on it I thought I'd share for today's blog.
For those of you who are unaware, Iraq's personal status law (which basically covers family law and inheritance) has been subject to a fair amount of contention since the American invasion/liberation/occupation/whatever. It has always basically been a pastiche of various Sunni and Shi'i shar'ia rules with a few reforms here or there. So Shi'i law, for example, gives a daughter with no brothers the full inheritance rights a son would receive, whereas Sunni rules don't, and so there they adopt Shi'i rules. By contrast, when the daughter has a brother, her share is half of the brothers, all schools do that and the law doesn't change it. But it does raise the age of marriage to eliminate child marriage, for example, in the manner that none of the schools do. (And my choice of Shi'i rules to favor girls in this case is incidental, below I'll give an example of Shi'i rules that don't work out as well).
Anyway, this law tended to annoy the Shi'a, and they tried to flip it back so that each sect followed its own rules and had its own judges deciding cases. The Western media went nuts, screaming about what a setback this would be for women's rights, seemingly unaware that on most of the major issues (polygamy, men's unilateral right to divorce while women required cause, disparate inheritance rights), the code was already decidedly not progressive. The Shi'a proposal would change some things (child marriage a very real possibility), but it wasn't moving as much as people seemed to think. (Noah Feldman seemed to be the only one who called that right in his book on Iraq.)
No, what really annoyed the Shi'a wasn't the rules, in fact their first proposal to change the code just nullified it and replaced it with nothing more specific than "the rules of the shari'a", it was WHO gets to make the rules that presented the problem for the Shi'a. When you codify shari'a, you basically make it a state instrument, passed by a legislature, interpreted by judges, and for Shi'ism, that's anathema. The jurists develop shari'a, not judges and politicians. But their repeated attempts to change this kept failing, the US maintained its pressure not to have the embarrassing embrace of Islamic law happen on its watch, and the Shi'a kept trying. The problem is not it's the wrong law, it's that the law should be taken out of this, maybe not entirely, but largely, and this whole area should be governed by nonstate actors, namely the jurists.
So far, so good, want more, go to my article here. But with this deep American pressure, the Shi'a (and I mean the Islamist Shi'a, yes there are plenty of secularists who don't care for shari'a) found themselves stuck in the new Constitution. There was no way they could shari'afy personal status, but there was no way they were going to let it go. This is a cause for the Islamist Shi'a, the central one in many ways. So what to do?
The solution was to make this personal status thing not a shari'a law, but a right, an exercise in freedom. And so we have Article 41:
Iraqis are free in their obligations respecting personal status, according to their religions, their sects, their convictions, their choices, and this shall be organized by law.
Really a stroke of genius. How can you argue with this? We are not restricting women, we are free! If some secular, hippie family wants to live according to their own convictions (and the Islamists know there are precious few hippies in Iraq), well then they are free, and so are we, to engage in polygamy, unilateral divorce, divergent inheritance, wifely obedience and the rest of it. Laugh at us if you want, but it's our choice, and you choose yours, the argument goes. Freedom for all!
The cynic would say that this is the backdoor to Islamization. They can't change the law, so they do something else. Because the reality is that the vast majority of Muslims in Iraq (outside of Kurdistan, where they won't pay attention to this anyway) are not going to openly say they'll ignore the shari'a when they marry. Some will do that, they will adopt a more secular outlook, but most will "choose" (whether voluntarily or social pressure depends on the person) shari'a, and thus will it expand throughout the land, and grow slowly in its acceptability.
But you can't dismiss this as pure cynicism. Clearly even the first Shi'a proposals are seeking legal withdrawal not a change in the code, sure now they say autonomy where before they said repeal, but the point is the same--the law is the problem, the law is interfering with our abilities to live as we like in the families we want, the law must leave us alone. The call for autonomy is a sincere one.
And getting to the title of the entry, the irony is, that in this argument, the Islamists sound a lot like the advocates of same sex marriage, who make similar arguments in favor of autonomy. Isn't that the position, that people should be free to pick their marital partners, that more and not less freedom is an enhancement to the family not a detraction, and that if the law would get out of the way, all will be well.
Neither believes in absolute autonomy, the law plays a role somewhere in regulation. But in both cases, for entirely different reasons, what is being proferred, by the Islamists in Iraq and same sex marriage advocates here, is remarkably similar in its rhetoric. Government, and law, is acting as an impediment to our personal and familial happiness, now fix it so that it gets the hell out of the way, and then we can live as we want to live, as we are entitled to live, as we must be free to live.
Of course there are differences. The objection to the shari'a here in the US is not that we don't like personal autonomy, it's that it doesn't protect society's most vulnerable members very well. This is not at all implicated in same sex marriage, I realize, and so I don't want to take this too far. There are clear differences. Under shari'a, the argument against it would run (hell I would make it, I'm not happy as a proud practicing Muslim about the persistence of these rules), and unlike anything any same sex marriage advocate argues, women can find themselves stuck in unhappy marriages and are not permitted to leave their marital homes without their husband's permission. If their husband divorces them, no alimony is due, and he takes the boys after the age of seven (nine for girls). He can marry another, he can even under Shi'i rules use the services of a prostitute under the guise of a "temporary marriage." (That's an abuse--theoretically it's supposed to be more of a legitimate relationship given that the woman is supposed to wait three months before another temporary marriage, and that makes it tough for business for a prostitute I imagine. Also the Shi'is I knew in the US just used it to legitimize premarital relations, kosher sex they called it. But how hard is it to take it another direction and make it into prostitution--here's your "dowry", let's get "married" for an hour and you young lady remember to wait three months until your next marriage but I won't see you again and so won't really know. Incredible institution, temporary marriage, some use it to date, and others to cheat on their wives with prostitutes when their wife is delivering their baby (true story, though that guy got rebuked even by pretty staunch traditionalists, less for violating the shari'a and more for being a real ass)).
Back to the point, what kind of freedom is it where one is then stuck in this relationship, it can be said. This isn't autonomy like same sex marriage is autonomy, this is legitimizing unfairness and discrimination, this is awful, the opposite of autonomy, the preservation of gender hierarchy. So the argument runs.
All fair points, I am not arguing against them or taking my analogy too far, but be aware of one thing. If you talk to conservative Muslims in Iraq, as liberal Muslims like me are wont to do in the hopes of developing a more modern normal family law, they will tell you "this is what we want, this is how we wish to live, why is marriage only for you liberal Muslims? Why do you get to decide what does and doesn't protect women? Why can't our women decide for themselves that this is protection enough, the dowry, the required maintenance during marriage, the obligations of the man to keep home and hearth well supplied? Who are you to interfere with us and our happiness, and tell us what is a proper way to live? I never told your sister to marry a woman under my rules, don't tell my sister what is protection for her."
And when they say it in Iraq, and I have heard it many times, I smile, and think again of the same sex advocates in the US.
HAH
For those of you who are unaware, Iraq's personal status law (which basically covers family law and inheritance) has been subject to a fair amount of contention since the American invasion/liberation/occupation/whatever. It has always basically been a pastiche of various Sunni and Shi'i shar'ia rules with a few reforms here or there. So Shi'i law, for example, gives a daughter with no brothers the full inheritance rights a son would receive, whereas Sunni rules don't, and so there they adopt Shi'i rules. By contrast, when the daughter has a brother, her share is half of the brothers, all schools do that and the law doesn't change it. But it does raise the age of marriage to eliminate child marriage, for example, in the manner that none of the schools do. (And my choice of Shi'i rules to favor girls in this case is incidental, below I'll give an example of Shi'i rules that don't work out as well).
Anyway, this law tended to annoy the Shi'a, and they tried to flip it back so that each sect followed its own rules and had its own judges deciding cases. The Western media went nuts, screaming about what a setback this would be for women's rights, seemingly unaware that on most of the major issues (polygamy, men's unilateral right to divorce while women required cause, disparate inheritance rights), the code was already decidedly not progressive. The Shi'a proposal would change some things (child marriage a very real possibility), but it wasn't moving as much as people seemed to think. (Noah Feldman seemed to be the only one who called that right in his book on Iraq.)
No, what really annoyed the Shi'a wasn't the rules, in fact their first proposal to change the code just nullified it and replaced it with nothing more specific than "the rules of the shari'a", it was WHO gets to make the rules that presented the problem for the Shi'a. When you codify shari'a, you basically make it a state instrument, passed by a legislature, interpreted by judges, and for Shi'ism, that's anathema. The jurists develop shari'a, not judges and politicians. But their repeated attempts to change this kept failing, the US maintained its pressure not to have the embarrassing embrace of Islamic law happen on its watch, and the Shi'a kept trying. The problem is not it's the wrong law, it's that the law should be taken out of this, maybe not entirely, but largely, and this whole area should be governed by nonstate actors, namely the jurists.
So far, so good, want more, go to my article here. But with this deep American pressure, the Shi'a (and I mean the Islamist Shi'a, yes there are plenty of secularists who don't care for shari'a) found themselves stuck in the new Constitution. There was no way they could shari'afy personal status, but there was no way they were going to let it go. This is a cause for the Islamist Shi'a, the central one in many ways. So what to do?
The solution was to make this personal status thing not a shari'a law, but a right, an exercise in freedom. And so we have Article 41:
Iraqis are free in their obligations respecting personal status, according to their religions, their sects, their convictions, their choices, and this shall be organized by law.
Really a stroke of genius. How can you argue with this? We are not restricting women, we are free! If some secular, hippie family wants to live according to their own convictions (and the Islamists know there are precious few hippies in Iraq), well then they are free, and so are we, to engage in polygamy, unilateral divorce, divergent inheritance, wifely obedience and the rest of it. Laugh at us if you want, but it's our choice, and you choose yours, the argument goes. Freedom for all!
The cynic would say that this is the backdoor to Islamization. They can't change the law, so they do something else. Because the reality is that the vast majority of Muslims in Iraq (outside of Kurdistan, where they won't pay attention to this anyway) are not going to openly say they'll ignore the shari'a when they marry. Some will do that, they will adopt a more secular outlook, but most will "choose" (whether voluntarily or social pressure depends on the person) shari'a, and thus will it expand throughout the land, and grow slowly in its acceptability.
But you can't dismiss this as pure cynicism. Clearly even the first Shi'a proposals are seeking legal withdrawal not a change in the code, sure now they say autonomy where before they said repeal, but the point is the same--the law is the problem, the law is interfering with our abilities to live as we like in the families we want, the law must leave us alone. The call for autonomy is a sincere one.
And getting to the title of the entry, the irony is, that in this argument, the Islamists sound a lot like the advocates of same sex marriage, who make similar arguments in favor of autonomy. Isn't that the position, that people should be free to pick their marital partners, that more and not less freedom is an enhancement to the family not a detraction, and that if the law would get out of the way, all will be well.
Neither believes in absolute autonomy, the law plays a role somewhere in regulation. But in both cases, for entirely different reasons, what is being proferred, by the Islamists in Iraq and same sex marriage advocates here, is remarkably similar in its rhetoric. Government, and law, is acting as an impediment to our personal and familial happiness, now fix it so that it gets the hell out of the way, and then we can live as we want to live, as we are entitled to live, as we must be free to live.
Of course there are differences. The objection to the shari'a here in the US is not that we don't like personal autonomy, it's that it doesn't protect society's most vulnerable members very well. This is not at all implicated in same sex marriage, I realize, and so I don't want to take this too far. There are clear differences. Under shari'a, the argument against it would run (hell I would make it, I'm not happy as a proud practicing Muslim about the persistence of these rules), and unlike anything any same sex marriage advocate argues, women can find themselves stuck in unhappy marriages and are not permitted to leave their marital homes without their husband's permission. If their husband divorces them, no alimony is due, and he takes the boys after the age of seven (nine for girls). He can marry another, he can even under Shi'i rules use the services of a prostitute under the guise of a "temporary marriage." (That's an abuse--theoretically it's supposed to be more of a legitimate relationship given that the woman is supposed to wait three months before another temporary marriage, and that makes it tough for business for a prostitute I imagine. Also the Shi'is I knew in the US just used it to legitimize premarital relations, kosher sex they called it. But how hard is it to take it another direction and make it into prostitution--here's your "dowry", let's get "married" for an hour and you young lady remember to wait three months until your next marriage but I won't see you again and so won't really know. Incredible institution, temporary marriage, some use it to date, and others to cheat on their wives with prostitutes when their wife is delivering their baby (true story, though that guy got rebuked even by pretty staunch traditionalists, less for violating the shari'a and more for being a real ass)).
Back to the point, what kind of freedom is it where one is then stuck in this relationship, it can be said. This isn't autonomy like same sex marriage is autonomy, this is legitimizing unfairness and discrimination, this is awful, the opposite of autonomy, the preservation of gender hierarchy. So the argument runs.
All fair points, I am not arguing against them or taking my analogy too far, but be aware of one thing. If you talk to conservative Muslims in Iraq, as liberal Muslims like me are wont to do in the hopes of developing a more modern normal family law, they will tell you "this is what we want, this is how we wish to live, why is marriage only for you liberal Muslims? Why do you get to decide what does and doesn't protect women? Why can't our women decide for themselves that this is protection enough, the dowry, the required maintenance during marriage, the obligations of the man to keep home and hearth well supplied? Who are you to interfere with us and our happiness, and tell us what is a proper way to live? I never told your sister to marry a woman under my rules, don't tell my sister what is protection for her."
And when they say it in Iraq, and I have heard it many times, I smile, and think again of the same sex advocates in the US.
HAH
Comments