Human Beings and the Real Story of the Rise of the Islamic State
Yesterday I finally got around to reading a really wonderful law review article by Donald Horowitz (42 Am. J. Int'l. L. 233 (1994)), a law professor at Duke about a theory of legal change, using the introduction of shari'a into Malaysia as an example. It's an absolutely remarkable piece, I highly encourage everyone to read it, wonderful example of how the shari'a, when concretized into practice, necessarily changes based on place and circumstance. I'm only embarrassed I only recently came to learn about it from Professor Horowitz himself. It is sure to inform my own future scholarship.
Horowitz' central focus in this piece is to address the idea of legal change, and he provides any number of theories that he finds not necessarily wrong, but inadequate. One is the sort of evolutionary idea. We start with tribes and clans, and then from there some regularization of process is achieved, and eventually officials begin to be selected, etc. He describes it better, but you get the idea. Another one is the functionalist approach, and that one is more or less the notion that there are social needs, and the law evolves in a manner to fill those needs. Law and Economics is the central theory in this realm--the law evolves slowly to greater and greater levels of efficiency.
He discusses a few others, but his central problem, or really my central problem because I'll use my own phrasing, with these two is that there aren't really any people in these theories. That's sort of my problem with most economists, it's as if human individuality, human culture aren't really part of the equation, you can be a clan chief from a tribe in Zimbabwe, a Chinese rice farmer, a Sudanese goat herder, and somehow I can lay out how your society's laws are going to play out, no matter what you say. Besides which, as he says, it seems empirically ridiculous in some instances. You don't layer Islamic finance onto a modern commercial system to make it more efficient, that really makes absolutely no sense.
In any event, what he says, and I think it is spot on right, is not so much to neglect the evolutionary/utilitarian accounts, for clearly in Malaysia as in anywhere else there is development, and there are social needs, and to some extent the professionalization of Islamic law in Malaysia can be said to be based on that, but to add some visible hands in addition to the invisible ones of progression and the market. In other words, who are the people introducing Islamic law into the country? Why are they doing it? What are their own biases and what is that going to lead to?
In the case of Malaysia, the introduction of shari'a was spearheaded by the government, faced with a potent Islamic opposition, seeking to blunt the force of its call. The drafters were thus Malaysian establishment lawyers, schooled in the common law. Those applying the statutes, the judges, were similarly schooled, and have been increasingly so. What is the result? Islamic law and common law begin to converge, not because the establishment actually wants to minimize the effect of the shari'a, but because they have been schooled in one system, they understand one system, they have applied one system all their lives, when you say Islamic law, they basically take the system they have, copy it wholesale and then whenever the shari'a seems to reach a different result, they stick that in. They couldn't begin to conceive of what a classical trial would look like, they don't care, they simply adapt Islamic law to work in the common law system they already have.
Some of the best part of the piece show how the judiciary then starts to approach the Islamic statutes, and even the foundational text on which it is based, (ie Qur'an and Sunna) as common lawyers do. Distinguishing one Prophetic precedent, parsing the words of the Qur'an to interpret them, with one sentence of a verse concerning polygamy being the restrictive, and the other being the permissive, all in a manner that an Iraqi civilian lawyer, let alone a classical jurist, couldn't begin to understand.
It's a point that is too often undiscussed. When Sanhuri said he's going to give us an Islamic Civil Code (or a largely Islamic one), you have to remember that this is a civil lawyer talking. He's going to fit Islamic law into the paradigm he can work with and understand. And then the lawyers and courts that are then going to play with it are going to do the same. You can't discuss the results of any court decisions of any Supreme Court in any Muslim country dealing with shari'a without sort of describing that country's legal system, because that's what those judges are trained in, and how they know how to operate. And so the reasoning of the Malysian courts, for example, as described by Professor Horowitz were immediately accessible to me, I get them right away. It used to take me much longer to understand the court rulings of Middle Eastern countries. Not because the Islamic law was less accessible, but the civil law reasoning was. Two years in Iraq helped fix that.
In fact, outside of Islamic law, this is equally true. Why were so many of the orders of Bremer's CPA, technically legally binding in Iraq, spectacularly ignored? Yes, resentment has something to do with it, but also, they were written by common law people sitting in the Green Zone. They may have showed it to Iraqi advisers (I served on a committee that provided the Iraqi input into finance and commerce legislation on behalf of Iraq's Governing Council) but one look at them made it obvious that they weren't going to work very well. And I've sat in on criminal and civil trials in Iraq, generally they ignore the CPA revisions, partly because they view them as illegitimate, partly because they don't understand them. Someone stuck something into their system that doesn't seem to work, so they pretend it's not there. All of this makes sense.
Now where it's all wrong. Not Horowitz himself, but the attempt by so many prominent scholars and theorists to extend this idea of judges interpreting the shari'a to the Shi'i paradigm. Because the error again here is to take out the people, to say "a-ha, Islamization is through courts, and through legislation, and that's how the shari'a is going to enter into modern Islamic countries, including Iraq. that's the development model."
But turn back to the people again to see why this is wrong in Iraq. Who are the people who seek to introduce Islamic law into, say, Shi'i dominated Iraq (and the Shi'a control the legal system right now), and how do they seek to do it.
Article 2 of the Iraq constitution can say what it wants, but leave the world of text for a minute, and state incorporation of shari'a is not what is happening at all. The notion of shari'a the Shi'a Islamist parties carry with them, the people seeking to make Islamic law more relevant, is absolutely, positively NOT one where judges interpret shari'a, or lawyers make arguments with it, that is EXACTLY what Shi'i Islamists seek to avoid. It's their problem with the Personal Status Law, that judges and lawyers handle it. See my analysis of this point, with first hand experience, here.
Shari'a for the Shi'a is controlled by the jurists, the non state actors, the marja'iyya. No Shi'i judge who wanted to retain an ounce of credibility would dare interpret Qur'anic verse differently from the jurists, it makes no sense, it's sort of like if you said courts in the US could decide cases on the basis of Catholic doctrine, and then finding some judge out there who said that while the Pope said doctrine was X, in fact the Bible proves the Pope's interpretation to be without merit. He sits on the Throne of Peter, I think he gets to decide Catholic doctrine. Precisely the same with the marja'iyya.
So applying the idea that you focus on the people instead of generalizing one big Islamic practice from what you've seen somewhere else, be it Malaysia or Egypt, you get a different result in Iraq than in Malaysia. You don't get a professionalization of a shari'a bar, you get a withdrawal from the state from areas in which the shari'a is expected to control. You don't get judges starting to interpret Islamic law in a manner reminiscent of civilian courts, you get them parroting what high scholars say, or just avoiding mention of it wherever possible and staying clear of shari'a concerns. You don't get the court making sure that the state remains within Islamic boundaries, you get a jurist in Najaf, Ali Sistani doing that. And that, precisely, demonstrably, empirically, is what is happening in Iraq. The Supreme Court hasn't made a single Article 2 decision (I've read I think every decision they've made since their creation in 2005), and just last week Sistani said again he's going to make sure that the Status of Forces Agreement between the US and Iraq is going to respect Iraqi sovereignty, which was enough to alarm US Ambassador Crocker to make a visit to Najaf to talk about his respect for the Najaf clerics while he was there. I'll say it again, the nation is signing a forces agreement, and the person whose going to make sure it is all Islamic is not a court, is not a legal expert, but a jurist. Same jurist, by the way, who was consulted on whether or not it was okay to execute Saddam on a national holiday. They tried to get Midhat Mahmoud, head of the Iraqi Supreme Court, to intervene and authorize the execution. The Americans begged him to do something. He refused. It was the authorities in Najaf who sanctioned it on that point.
Look, Islamicity is not being decided in the legal system, and those experts who keep saying it is, and keep talking about the Rise of the Islamic State and using Iraq as an example of the melding of shari'a and law, are just not paying very much attention.
HAH
Horowitz' central focus in this piece is to address the idea of legal change, and he provides any number of theories that he finds not necessarily wrong, but inadequate. One is the sort of evolutionary idea. We start with tribes and clans, and then from there some regularization of process is achieved, and eventually officials begin to be selected, etc. He describes it better, but you get the idea. Another one is the functionalist approach, and that one is more or less the notion that there are social needs, and the law evolves in a manner to fill those needs. Law and Economics is the central theory in this realm--the law evolves slowly to greater and greater levels of efficiency.
He discusses a few others, but his central problem, or really my central problem because I'll use my own phrasing, with these two is that there aren't really any people in these theories. That's sort of my problem with most economists, it's as if human individuality, human culture aren't really part of the equation, you can be a clan chief from a tribe in Zimbabwe, a Chinese rice farmer, a Sudanese goat herder, and somehow I can lay out how your society's laws are going to play out, no matter what you say. Besides which, as he says, it seems empirically ridiculous in some instances. You don't layer Islamic finance onto a modern commercial system to make it more efficient, that really makes absolutely no sense.
In any event, what he says, and I think it is spot on right, is not so much to neglect the evolutionary/utilitarian accounts, for clearly in Malaysia as in anywhere else there is development, and there are social needs, and to some extent the professionalization of Islamic law in Malaysia can be said to be based on that, but to add some visible hands in addition to the invisible ones of progression and the market. In other words, who are the people introducing Islamic law into the country? Why are they doing it? What are their own biases and what is that going to lead to?
In the case of Malaysia, the introduction of shari'a was spearheaded by the government, faced with a potent Islamic opposition, seeking to blunt the force of its call. The drafters were thus Malaysian establishment lawyers, schooled in the common law. Those applying the statutes, the judges, were similarly schooled, and have been increasingly so. What is the result? Islamic law and common law begin to converge, not because the establishment actually wants to minimize the effect of the shari'a, but because they have been schooled in one system, they understand one system, they have applied one system all their lives, when you say Islamic law, they basically take the system they have, copy it wholesale and then whenever the shari'a seems to reach a different result, they stick that in. They couldn't begin to conceive of what a classical trial would look like, they don't care, they simply adapt Islamic law to work in the common law system they already have.
Some of the best part of the piece show how the judiciary then starts to approach the Islamic statutes, and even the foundational text on which it is based, (ie Qur'an and Sunna) as common lawyers do. Distinguishing one Prophetic precedent, parsing the words of the Qur'an to interpret them, with one sentence of a verse concerning polygamy being the restrictive, and the other being the permissive, all in a manner that an Iraqi civilian lawyer, let alone a classical jurist, couldn't begin to understand.
It's a point that is too often undiscussed. When Sanhuri said he's going to give us an Islamic Civil Code (or a largely Islamic one), you have to remember that this is a civil lawyer talking. He's going to fit Islamic law into the paradigm he can work with and understand. And then the lawyers and courts that are then going to play with it are going to do the same. You can't discuss the results of any court decisions of any Supreme Court in any Muslim country dealing with shari'a without sort of describing that country's legal system, because that's what those judges are trained in, and how they know how to operate. And so the reasoning of the Malysian courts, for example, as described by Professor Horowitz were immediately accessible to me, I get them right away. It used to take me much longer to understand the court rulings of Middle Eastern countries. Not because the Islamic law was less accessible, but the civil law reasoning was. Two years in Iraq helped fix that.
In fact, outside of Islamic law, this is equally true. Why were so many of the orders of Bremer's CPA, technically legally binding in Iraq, spectacularly ignored? Yes, resentment has something to do with it, but also, they were written by common law people sitting in the Green Zone. They may have showed it to Iraqi advisers (I served on a committee that provided the Iraqi input into finance and commerce legislation on behalf of Iraq's Governing Council) but one look at them made it obvious that they weren't going to work very well. And I've sat in on criminal and civil trials in Iraq, generally they ignore the CPA revisions, partly because they view them as illegitimate, partly because they don't understand them. Someone stuck something into their system that doesn't seem to work, so they pretend it's not there. All of this makes sense.
Now where it's all wrong. Not Horowitz himself, but the attempt by so many prominent scholars and theorists to extend this idea of judges interpreting the shari'a to the Shi'i paradigm. Because the error again here is to take out the people, to say "a-ha, Islamization is through courts, and through legislation, and that's how the shari'a is going to enter into modern Islamic countries, including Iraq. that's the development model."
But turn back to the people again to see why this is wrong in Iraq. Who are the people who seek to introduce Islamic law into, say, Shi'i dominated Iraq (and the Shi'a control the legal system right now), and how do they seek to do it.
Article 2 of the Iraq constitution can say what it wants, but leave the world of text for a minute, and state incorporation of shari'a is not what is happening at all. The notion of shari'a the Shi'a Islamist parties carry with them, the people seeking to make Islamic law more relevant, is absolutely, positively NOT one where judges interpret shari'a, or lawyers make arguments with it, that is EXACTLY what Shi'i Islamists seek to avoid. It's their problem with the Personal Status Law, that judges and lawyers handle it. See my analysis of this point, with first hand experience, here.
Shari'a for the Shi'a is controlled by the jurists, the non state actors, the marja'iyya. No Shi'i judge who wanted to retain an ounce of credibility would dare interpret Qur'anic verse differently from the jurists, it makes no sense, it's sort of like if you said courts in the US could decide cases on the basis of Catholic doctrine, and then finding some judge out there who said that while the Pope said doctrine was X, in fact the Bible proves the Pope's interpretation to be without merit. He sits on the Throne of Peter, I think he gets to decide Catholic doctrine. Precisely the same with the marja'iyya.
So applying the idea that you focus on the people instead of generalizing one big Islamic practice from what you've seen somewhere else, be it Malaysia or Egypt, you get a different result in Iraq than in Malaysia. You don't get a professionalization of a shari'a bar, you get a withdrawal from the state from areas in which the shari'a is expected to control. You don't get judges starting to interpret Islamic law in a manner reminiscent of civilian courts, you get them parroting what high scholars say, or just avoiding mention of it wherever possible and staying clear of shari'a concerns. You don't get the court making sure that the state remains within Islamic boundaries, you get a jurist in Najaf, Ali Sistani doing that. And that, precisely, demonstrably, empirically, is what is happening in Iraq. The Supreme Court hasn't made a single Article 2 decision (I've read I think every decision they've made since their creation in 2005), and just last week Sistani said again he's going to make sure that the Status of Forces Agreement between the US and Iraq is going to respect Iraqi sovereignty, which was enough to alarm US Ambassador Crocker to make a visit to Najaf to talk about his respect for the Najaf clerics while he was there. I'll say it again, the nation is signing a forces agreement, and the person whose going to make sure it is all Islamic is not a court, is not a legal expert, but a jurist. Same jurist, by the way, who was consulted on whether or not it was okay to execute Saddam on a national holiday. They tried to get Midhat Mahmoud, head of the Iraqi Supreme Court, to intervene and authorize the execution. The Americans begged him to do something. He refused. It was the authorities in Najaf who sanctioned it on that point.
Look, Islamicity is not being decided in the legal system, and those experts who keep saying it is, and keep talking about the Rise of the Islamic State and using Iraq as an example of the melding of shari'a and law, are just not paying very much attention.
HAH
But Professor, at least in Egypt, isn't it the Constitutional Court which interprets its own Article 2 provision and insofar as the interpretation was "liberalized", and in this sense, the decision differs from what jurists might opine on the very same cases they decided?
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That is definitely my understanding of Egypt, from Clark Lombardi's work on the subject, State Law as Islamic Law, which I recommend. Thanks for raising the point, you are right about it.
My point really was that there is no universal blueprint. While the scholarly community of the Azhar don't have near the standing they once did, that is categorically not true of Iraq, where Sistani's fatwas are considered, by the vast majority of devout Shi'a in Iraq, the precise expression of the shari'a. There is no real plausible way, I think, that a court could ever depart from the rulings of the high scholars of Najaf on a point of Islamic law in the Shi'i world. I think both Donald Horowitz and Clark Lombardi have done some very good work, where I take issue here is not with them, but with those who would extend the (different) sets of ideas they've developed in particular contexts to places they don't belong.
Thanks again for the comment.
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