Noah Feldman and Political-Religious "Balance" in Muslim States
I was going to write a post today on a series of problems I had with Noah Feldman's recent piece in the New York Times Magazine, but then I realized the article part of a larger book project, and the book may very well deal with some of my objections, or at least explain the basis for those contentions with which I have rather strong disagreement. I can see why there is no support in the article--when I write for mainstream press, it is hard because word limits are so short by academic standards and citations unheard of that you can't really do much other than spout an opinion without doing much explaining of how you came to think that. I'd rather read the book, which could well answer much of what I have problems with, and do a proper scholarly review than a blog post.
Instead, let me sort of just focus on one central idea in the article, which isn't just his, which sort of compares the sort of historical wrangling between jurist and caliph, religious authorities and political, as being sort of akin to modern judicial review. According to the article, shari'a has historically been used to limit the caliph's power, so that he can act, but within juristic limitations. It is this balance of powers that the Islamists seek to replicate, finding in shari'a the potential to create a true rule of law society. This, it is argued, is in a way similar to how a judiciary limits a legislature through interpretation of the constitution, and so that is currently the Islamist track, to use the classical ideas to create shari'a rule of law through judicial review and the like. Clark Lombardi makes the same classical-modern link of judicial review and classical limitations on caliphate power (though not addressing the same issue of rule of law), and a recent speaker I heard compare this idea of juristic limitations on political power to "classical judicial review".
Leaving aside Feldman's rather simplistic and stylized history, which even simplified is rather suspect (one of the objections I have), I don't get why this odd comparison keeps on coming up. Everyone can see the differences between these two ideas, of judicial review on the one hand and classical "balancing" through what is known as siyasa shar'iyya (which may well have existed only in theory) on the other. Jurists are not state officials, judges are. Jurists write a whole bunch of careful and detailed rules on a whole bunch of different topics, judges applying constitutional law make it a precise point NOT to interfere with legislative prerogative by supplying their own legaislative recommendations. Judges explicitly review decisions of the legislature and executive, even Feldman admits that jurists never do this, not even informally and at best remain silent when displeased with a caliph.
How is this judicial review? Sure the jurists have a whole bunch of rules, and the caliphate wants to do what it wants to do and the question is how do we balance one against the other, but hell, in that case, siyasa shar'iyya is also similar to the way my parents raised me. They as jurists had a whole bunch of rules, developed from their own expectations. I as caliph had my own ideas on what I wanted to do, and somewhere in between, a balance is struck. Or actually it's probably the reverse, I had the rules, they had the power. Come to think of it, it's also how the faculty and the Dean interact, how partners manage associates in law firms, lots of siyasa shar'iyya in the world it seems. One groups makes rules (faculty), the other actually runs things (Dean) and they need to figure out how far the latter can go to achieve broader goals before some sort of line is crossed.
You get the point--the similarities are at such an absurdly high level of abstraction, you have to shake your head and wonder why it is everyone keeps making the comparison. And that's what I keep wondering, why force this? Surely it has nothing to do with a historical connection-everyone knows judicial review in the Muslim world is a transplant. And I think Feldman would concede it has nothing to do with the legitimacy of judicial review in the Muslim world, since 90% of the laws declared unconstitutional have nothing to do with shari'a. If the court may declare a law unconstitutional for violating a modern equality provision in the constitution, and that is legitimate, then we don't actually need siyasa shar'iyya to justify how why a court can do the same with a shari'a provision, it's the same phenomenon.
In fact, and this is important, the legitimacy question runs the other direction, the question isn't why does the court have power under the nation-state to fix the legislature's errors for a constitutional violation of shari'a, nobody questions their power if this is the road taken. The real question is, if you want a Muslim state, is that the way to do it? Even if you seek some sort of balance between political and religious, are these judges truly be an appropriate body to expound shari'a, or is a more juristic authority better? (This is a question that Feldman in the article gets precisely wrong in the context of Iraq, but again, I'll wait for the book).
So if it's not to demonstrate that judicial review is actually a Muslim idea in origin, and it's not to prove that judicial review is a legitimate use of state power, what the hell is the point? To Lombardi, I think it's supposed to frame the manner in which the Court will approach the question--that is, the court will give the legislature the same parameters the jurists were supposed to give the caliph and address the issue the same way. I am unconvinced, because the standard thereby adopted (protection of life, honor, property, mind and religion) is so absurdly vague it's almost like saying they adopt the same standard because they agree to do good things.
To Feldman, I think the idea of linking classical to the modern through judicial review is supposed to show flexibility. See, they want a balance, just like the one they had, but look at how they do it--they are perfectly happy to just work it into a modern state model, they aren't doing anything even unfamiliar to us. Well, if it's truly not unfamiliar to us, then it is terribly unfamiliar to the classical world, it's totally divorced from it, the desire for shari'a has nothing to do with the way it once operated because the context in which it once operated is so far removed from today's circumstances, that in order to make the connection sensible you either need to stylize and simplify history beyond the point of credulity, or you need to deliver a comparison at such a high level of abstraction it's hard to see what the connection is about, or, in Feldman's case, you have to do both.
No, it's not about siyasa shar'iyya, it's not about judicial review, it's not about any of this. Here is the reality. The Islamists want a Muslim state. They have certain ideas of what that entails. It clearly entails a very limited and circumscribed set of ideas on family law, with very, very little flexibility on the part of the legislature. Here, siyasa shar'iyya or judicial review or whatever you want to use to achieve the balance is going to be tipped very heavily towards the religious. Very little deference in it, not to a legislature or anyone else. God's Law,period.
But in commerce, it's another story. You can't replicate classical commerce. That's just stupid. You'd bankrupt the place in a day. So God's Law suddenly disappears, it's like the classical rules are largely gone, not so much overruled as barely present. You pull a few things that you manage to pick up from the classical era (interest bans, in form though not substance), decide they are fundamental even if they arguably weren't and arguably many other things were more important and are ignored, and then you throw all but the fundamental to the lawmaker on the theory that God never really ruled on much of this. Criminal law is something in between.
So what the shari'a is, and the level of its importance, even to Islamists, sort of depends on the area of law. In some cases, it must rule. In other cases, it can't. And if it can't, and you can't exactly declare the obviously transplanted Company Law to be Islamically derived, you have one option. Say that Islam actually doesn't rule on matters of commerce, ignore your history, and write something modern. It's got nothing to do with "balance", no Islamist is really saying you can not follow God's Law or need to balance it against other factors,. Instead, it has everything to do with selectively and opportunistically declaring some things to be God's Law when you like them, and other things not to be when you don't or they can't work. It's not about consistency, it's about ideological preference. But then, that's law the world over.
HAH
Instead, let me sort of just focus on one central idea in the article, which isn't just his, which sort of compares the sort of historical wrangling between jurist and caliph, religious authorities and political, as being sort of akin to modern judicial review. According to the article, shari'a has historically been used to limit the caliph's power, so that he can act, but within juristic limitations. It is this balance of powers that the Islamists seek to replicate, finding in shari'a the potential to create a true rule of law society. This, it is argued, is in a way similar to how a judiciary limits a legislature through interpretation of the constitution, and so that is currently the Islamist track, to use the classical ideas to create shari'a rule of law through judicial review and the like. Clark Lombardi makes the same classical-modern link of judicial review and classical limitations on caliphate power (though not addressing the same issue of rule of law), and a recent speaker I heard compare this idea of juristic limitations on political power to "classical judicial review".
Leaving aside Feldman's rather simplistic and stylized history, which even simplified is rather suspect (one of the objections I have), I don't get why this odd comparison keeps on coming up. Everyone can see the differences between these two ideas, of judicial review on the one hand and classical "balancing" through what is known as siyasa shar'iyya (which may well have existed only in theory) on the other. Jurists are not state officials, judges are. Jurists write a whole bunch of careful and detailed rules on a whole bunch of different topics, judges applying constitutional law make it a precise point NOT to interfere with legislative prerogative by supplying their own legaislative recommendations. Judges explicitly review decisions of the legislature and executive, even Feldman admits that jurists never do this, not even informally and at best remain silent when displeased with a caliph.
How is this judicial review? Sure the jurists have a whole bunch of rules, and the caliphate wants to do what it wants to do and the question is how do we balance one against the other, but hell, in that case, siyasa shar'iyya is also similar to the way my parents raised me. They as jurists had a whole bunch of rules, developed from their own expectations. I as caliph had my own ideas on what I wanted to do, and somewhere in between, a balance is struck. Or actually it's probably the reverse, I had the rules, they had the power. Come to think of it, it's also how the faculty and the Dean interact, how partners manage associates in law firms, lots of siyasa shar'iyya in the world it seems. One groups makes rules (faculty), the other actually runs things (Dean) and they need to figure out how far the latter can go to achieve broader goals before some sort of line is crossed.
You get the point--the similarities are at such an absurdly high level of abstraction, you have to shake your head and wonder why it is everyone keeps making the comparison. And that's what I keep wondering, why force this? Surely it has nothing to do with a historical connection-everyone knows judicial review in the Muslim world is a transplant. And I think Feldman would concede it has nothing to do with the legitimacy of judicial review in the Muslim world, since 90% of the laws declared unconstitutional have nothing to do with shari'a. If the court may declare a law unconstitutional for violating a modern equality provision in the constitution, and that is legitimate, then we don't actually need siyasa shar'iyya to justify how why a court can do the same with a shari'a provision, it's the same phenomenon.
In fact, and this is important, the legitimacy question runs the other direction, the question isn't why does the court have power under the nation-state to fix the legislature's errors for a constitutional violation of shari'a, nobody questions their power if this is the road taken. The real question is, if you want a Muslim state, is that the way to do it? Even if you seek some sort of balance between political and religious, are these judges truly be an appropriate body to expound shari'a, or is a more juristic authority better? (This is a question that Feldman in the article gets precisely wrong in the context of Iraq, but again, I'll wait for the book).
So if it's not to demonstrate that judicial review is actually a Muslim idea in origin, and it's not to prove that judicial review is a legitimate use of state power, what the hell is the point? To Lombardi, I think it's supposed to frame the manner in which the Court will approach the question--that is, the court will give the legislature the same parameters the jurists were supposed to give the caliph and address the issue the same way. I am unconvinced, because the standard thereby adopted (protection of life, honor, property, mind and religion) is so absurdly vague it's almost like saying they adopt the same standard because they agree to do good things.
To Feldman, I think the idea of linking classical to the modern through judicial review is supposed to show flexibility. See, they want a balance, just like the one they had, but look at how they do it--they are perfectly happy to just work it into a modern state model, they aren't doing anything even unfamiliar to us. Well, if it's truly not unfamiliar to us, then it is terribly unfamiliar to the classical world, it's totally divorced from it, the desire for shari'a has nothing to do with the way it once operated because the context in which it once operated is so far removed from today's circumstances, that in order to make the connection sensible you either need to stylize and simplify history beyond the point of credulity, or you need to deliver a comparison at such a high level of abstraction it's hard to see what the connection is about, or, in Feldman's case, you have to do both.
No, it's not about siyasa shar'iyya, it's not about judicial review, it's not about any of this. Here is the reality. The Islamists want a Muslim state. They have certain ideas of what that entails. It clearly entails a very limited and circumscribed set of ideas on family law, with very, very little flexibility on the part of the legislature. Here, siyasa shar'iyya or judicial review or whatever you want to use to achieve the balance is going to be tipped very heavily towards the religious. Very little deference in it, not to a legislature or anyone else. God's Law,period.
But in commerce, it's another story. You can't replicate classical commerce. That's just stupid. You'd bankrupt the place in a day. So God's Law suddenly disappears, it's like the classical rules are largely gone, not so much overruled as barely present. You pull a few things that you manage to pick up from the classical era (interest bans, in form though not substance), decide they are fundamental even if they arguably weren't and arguably many other things were more important and are ignored, and then you throw all but the fundamental to the lawmaker on the theory that God never really ruled on much of this. Criminal law is something in between.
So what the shari'a is, and the level of its importance, even to Islamists, sort of depends on the area of law. In some cases, it must rule. In other cases, it can't. And if it can't, and you can't exactly declare the obviously transplanted Company Law to be Islamically derived, you have one option. Say that Islam actually doesn't rule on matters of commerce, ignore your history, and write something modern. It's got nothing to do with "balance", no Islamist is really saying you can not follow God's Law or need to balance it against other factors,. Instead, it has everything to do with selectively and opportunistically declaring some things to be God's Law when you like them, and other things not to be when you don't or they can't work. It's not about consistency, it's about ideological preference. But then, that's law the world over.
HAH
Salaam brother,
I started to email you about Feldman's article when I read it and I wanted to comment but I decided to wait for the book. I do know some 'Western' conservatives have already started tearing his position apart which I think is unfair because they are only doing so to attack all things remotely 'Islamic'. My fear is that we, in the West, won't allow the Muslims in the East to cultivate a real dialogue about this without that dialogue being responsive to what they will attribute as 'Western' concepts. Do you kinda understand what I'm trying to say? I don't know if I wrote it clearly.
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Alaikum Assalam Brother and I think you are very clear. I appreciate always your comments and perspective from which this blog benefits.
Let me say two things. First, while I completely agree that it isn't unusual for some real bigots to attack anyone, including Feldman, John Esposito, etc., for anything they say that might be viewed as in any way sympatheitc to anything Islamic, I would hate to move to the other extreme, where just because someone writes sympathetically, we can't be critical of them when they say something we disagree with. Of course I know you not to be saying that, but wanted to make the point.
Now to move to what I disagree with, it's this insistence that somehow Muslims in the Middle East are linked intimately to our classical past when they're not. There's nothing they do that relates meaningfully to the classical world, the idea that somehow siyasa shari'yya has something to do with modern Muslim ideas on shari'a and state, I'm sorry, I don't buy it at all. There might be the same problem in very very broad contour (there's religious rules, there's the reality of how the state has to operate, what do we do), but the context is so incredibly different, we're not looking at adaptation, we're looking at total reinvention on the basis of post colonial and largely Western ideas. It's the Western idea that provides the answer of what to do (constitutions, amendments, judicial review), not anything from the classical world.
I do hear you when you say, but if we keep insisting on this, it cuts off dialogue because then what happens is the Islamist simply says I don't want anything Western and so then go away. I've noted this in a previous post, that in some ways, you can imagine salutary results coming from a creative fiction that something (judicial review, or the Chevron doctrne, which maybe is closer actually to siyasa shari'yya than judicial review, or the principle of legality or whatever) is actually Islamic in origin. But overall, I think it's dangerous. Because then what happens is, you sort of cede the ground to the Islamist, you acknowledge the necessity of proving everything is actually Islamic in origin or in fact it is illegitimate, and then so many reforms become difficult. I'd prefer to say to the Islamist that times change, that ideas cross religions and boundaries, that the notion that Islam hasn't been influenced from the outside is silly, that in fact HIS or HER SOLUTIONS are in fact examples of cross-pollination and borrow heavily from Western notions, and that if you're going to stand around and say that we can have a modern largely western civil code but we can't talk about women's right to divorce because that's a Western notion, well that makes no sense. Why one and not the other? I feel that playing the game of suggesting in fact the Western Civil Code is in the slightest consistent with Islamic classical notions through siyasa shar'iyya, which I think Feldman almost suggests in the magazine article but in any event which is completely wrong, doesn't help the conversation it hinders it.
Thanks again for the comment, brother
HAH
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