Back to scholarship for a day. .. . .

Intisar Rabb has written a very interesting article about the relationship of jurist to law to state in Muslim countries that purport to be both democratic and cognizant of Islamic law, and I encourage you all to take a look at it, in Volume 10 of the Penn Journal of Constitutional Law.  I commend much of it, and it is remarkably persuasive and knowledgable, but as I do always, I’ll focus on what I don’t agree with. 

As a result,  I won’t try to summarize the whole argument here, I think it would almost necessarily come off as reductive.   But in it (part, not all, of the main theme) Rabb suggests that in developing Islamic law sensibly in a modern democratic state, it is hardly useful to sideline the jurists almost entirely, as in Egypt.  This is because it delegitimizes the evolution of Islamic law when people not trained in the discipline try to liberalize it (to paraphrase badly, people just assume that the court is deviating from the true Islam of the jurists because it is part of a corrupt state).  Not being an Egypt expert, I think I fully agree, though it is a matter with which folks like Clark Lombardi, who unlike me is an actual expert on the Egyptian court, are likely to take exception.  On the other hand, Rabb clearly is not a fan of juristic rule, and proposes something along the lines of juristic involvement, but not juristic takeover of the field.  She suggests this is appropriate for Iraq and the direction in which Iraq tends to be moving.  Coordination in developing the law, and hopefully liberalizing Islamic law.

Unfortunately, however, I think she misunderstands a basic tenet of modern Shi’ism, which affords no space between shari’a on the one hand and jurist on the other.  The shari’a is no more or less to the Shi’a than what the modern jurists say it is.  Foundational text (meaning Qur’an and Sunnah), classical works on Islamic law (which most lay Shi’a couldn’t even identify) and alternative interpretations derived therefrom aren’t shari’a and are simply not part of the picture.  If among Shi’a one wants to make a point that something is or is not forbidden under Shi’a rules, it is the texts of the Najaf jurists that are pulled out, nothing else.  This is not to say that Shi’a are automatons who have no thoughts that are not inserted in their heads by their jurists, but only that in deciding the importance of shari’a to them, they associate that shari’a with juristic teachings, and not much else.  They might decide shari’a is medieval and barbaric, and conclude the same then about the jurists.  Most have some sort of middle ground, where the jurists are important in some areas, less so in others.  But rarely do they disentangle them from the shari’a.  To analogize, there are plenty of Catholics who use birth control, and many who pay no attention to doctrine at all outside of marriage and death and confirmation, but there are not many Catholics who think that Catholic doctrine should be determined by anyone but the Vatican.

There is ample evidence of this operating in Iraq.  Sistani quite frequently issues pronouncements concerning Islamic duties (personal obligations to vote, government obligations to protect the holy sites, foreign obligations to respect the will of the Iraqi people in transitional administration and to respect Iraqi sovereignty, the lack of an obligation to forgo an execution on an Islamic holiday), and these are taken by pious lay Shi’a as their Muslim duties.  Seculars who don’t care about shari’a don’t care of course, but they don’t come up with alternative religious arguments, they just say it is not a religious matter.  Courts, moreover, do not get anywhere close to these issues, even when (for example, concerning the legality of the execution of Saddam Hussein), they should get involved, or to be fair to them, should be afforded a reasonable opportunity to do so.  Right now, if you want to know if the presence of US troops on Iraqi soil violates the shari’a or not as Shi’a understand it, you ask Sistani.  Or Najafi, or Muhammad Sa’eed Hakim, etc.  You certainly don’t dig up classical works that most Shi’a have never even heard of and make your own decision on it. 

Rabb makes a pretty good case out of her pretty hard argument, that the Shi’a do afford some space between jurist on the one hand and shari’a on the other and judge-jurist coordination is the best way to move Islamic law forward.  On the question of less than total juristic control (to be fair, she acknowledges strong juristic influence), her main evidence is the repeal of Governing Council Resolution 137, which I discuss in brief in one of my own articles. (I can’t link while in Iraq, it’s too slow).  This was an attempt by Shi’i Islamists to repeal the Personal Status Law (basically family law and inheritance) and replace it with uncodified shari’a.  This resolution doing this was repealed, she insists, precisely because Iraqis were uncomfortable with uncodified shari’a, and the resulting effective juristic takeover of the field if that happens.

Two problems. First, the Governing Council was America’s hand selected body of Iraqis, and while I’ve said before that I think they did a pretty decent job under the circumstances in post invasion Iraq in picking the members (in full disclosure, I served for one of them), obviously they betrayed a secular bias in doing so.  When that resolution was repealed, five Islamist members of the 25 GC folks walked out of the meeting, I was in Iraq, I remember this very well.  These included people (other than Ahmed Chalabi) like Adil Abdul Mahdi, Ibrahim Ja’fari, Muwaffaq al Ruba’i members in other words, of the current Shi’a coalition that is by far the biggest group in Parliament, with nearly half the seats.  The secularists, the likes of Pachachi and Allawi and the Communists (using Communists to dilute Muslim power, my have the times changed) who led the repeal with strong American backing, haven’t done nearly as well, they were balanced in the GC, the elections tipped this decidedly in the Shi’a Islamist favor.  The US is in a weaker position as well, not yet weak, but not what it was during the CPA, when the resolution was not effective law without American approval because the GC was not the sovereign.  Nowadays, the steadily weakening US along with the secularly minded Kurds are the real balance, and not as much of a balance as other seculars would like given their overriding priority of using their political power for respect for their own federal region.  So I’m not sure what the GC did is in any way representative of where Iraq is heading.

Secondly, those who pushed the repeal, the secularists and the Kurds, weren’t expressing preference for codified shari’a over uncodified, for judge made law over jurist made law—what they wanted was tempered shari’a, in other words, a code that didn’t necessarily reflect shari’a in all of its aspects.  Let’s just take the simple example of child marriage.  All the schools accept child marriage, as shown in an earlier post.  The Iraqi Personal Status Code does not, it has an 18 year marriage age (younger with parental permission).  What Allawi and Pachachi and Talabani want is not the Code and judges to determine the matter because it’s undemocratic to do otherwise, it’s not process that is their issue. They want a marriage age of 18.  Codifying the age of nine does not solve their problem.  And to their mind you can’t temper Islamic law with their secular values through reference to a jurist, their views are medieval, so you codify some mixmash stuff that grabs a lot of Islamic law and also incorporates some secular notions and call that a Code and be done with it.  Most of them would prefer even less Islamization if they could get it done.  Hence the Kurdish region now prohibits polygamy.  It’s against the law up here.  (And by the way you aren’t going to hear much from judges about this, half of them wouldn’t know the shari’a if it bopped them on the head.)  These secularists don’t make a pretense of saying these are Islamic rules, they don’t even want to try—they just say this is what modernity demands and stop living in the medieval ages, they say you can be a Muslim and not take this junk seriously. Reforming Islamic law isn’t their concern, distancing Iraqi law from the jurists and the shari’a both is. 

(As an aside, it is interesting sometimes to see the dichotomy between the Middle East and West in these cases of liberalism in the Muslim world.  Western scholars tend to work tirelessly to come up with notions of shari’a that are more consonant with liberal values.  Secular forces in the Middle East really don’t care as much, they figure the shari’a cannot be changed because it has been the same for thousands of years.  Neither is right to my mind, but the dichotomy is striking. The result is Muslim law reformers are more represented in law review footnotes than adherents on the ground in the East.  We in the Muslim law academy all know what Fazlur Rahman and Khaled Abou El Fadl think,  Rabb engaged Abou El Fadl in her work extensively, and I have too, but nobody in this city that is a secular bastion of Iraq even know who they are, so far as I can tell, shari’a scholars, secular judges or otherwise.)

Of course, the Islamist has the opposite problem.  What gives the legislature, or the judges, some right to declare a marriage age of 18, when the shari’a is clear that younger ages are permitted?  Why should a Shi’i follow Sunni rules on witnesses?  Why should a Sunni follow Shi’i rules on inheritance?  What he wants is not some mishmash, he wants the real shari’a to my mind, and the real shari’a is what the jurists in his school say and so let’s go back to them.

The same debate follows in Iraqi constitutionalism.  There are those who want the shari’a to be paramount, and want the jurists to determine it, and there are those who prefer it be rather marginal if possible.  The Islamist says I want any law that violates the ‘rulings’ of Islam to be invalid, and the secularist says ‘established ruling, on which there is consensus’ or better yet, nothing by way of invalidity clauses on the basis of shari’a if he can get it.  The Islamist wants a court with 40% jurist representation and specific reference to the sacredness of the Najaf jurist seminaries, and the secularist wants none of these.  The Islamist wants uncodified shari’a on family law, and the secularist wants the code he has, and preferably an even more liberal one.  One, in other words, wants a lot of shari’a and jurists, and the other wants a lot less of both.  A compromise is hashed out, one which contemplates a juristic role, but does not indicate how much of one, one that has a big role for shari’a, but not as big as the Islamists would like, a definite tip on all scales towards the Islamists but balanced to some extent by seculars bolstered by their American allies.

But NOBODY is out there calling for important roles for shari’a, but to be addressed largely through judges, or at least significantly through judges, any more than they are calling for a big role for shari’a applied in a more liberal way.  Perhaps the Sunni Arab Islamists, I don’t know, but really, they have been thoroughly marginalized throughout this process, attributing the constitution or the legal developments in Iraq since 2003 to them would be preposterous (to be clear, Rabb does not do this).  I’ve been verbally assaulted by Sunni Arab professors here when I even talk about the constitution because I fail to describe it as they wish, as the epitome of evil.  (That happened a day ago, I should post about it).

How will all of this play out?  Hard to know, but I do think as we go forward in Iraq, there are going to be two ways—the shari’a of the jurists, or secularism.  It’ll be bumpy, they’ll compromise in places, one group or another will win in one area or another, but I don’t think you’ll see the shari’a either liberalized, or distanced from the jurists.  The institutions are far too strong. Shari’a and jurist will, I think, remain linked. 

HAH